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https://www.courtlistener.com/api/rest/v3/opinions/2259742/
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777 F.Supp. 471 (1991)
Janice G. CLARK, et al.
v.
Charles E. "Buddy" ROEMER, et al.
Civ. A. No. 86-435-A.
United States District Court, M.D. Louisiana.
August 29, 1991.
*472 Ernest L. Johnson, T. Richardson Bobb, Baton Rouge, La., Robert McDuff, Lawyer's Committee for Civil Rights Under Law, Washington, D.C., Ulysses Thibodeaux, Newman & Thibodeaux, Lake Charles, La., for plaintiffs.
Kenneth C. DeJean, Roy A. Mongrue, Office of Atty. Gen., Louisiana Dept. of Justice, Baton Rouge, La., Robert G. Pugh, Robert G. Pugh, Jr., Pugh, Pugh & Pugh, Shreveport, La., John N. Kennedy, Office of the Governor, Cynthia Y. Rougeou, Angie Rogers LaPlace, Office of Secretary of State, Baton Rouge, La., for defendants Charles "Buddy" Roemer, Governor of La., William J. Guste, Jr., Atty. Gen. of the State of Louisiana, Fox McKeithen, Secretary of State of Louisiana.
Michael H. Rubin, Christina Peck, Rubin, Curry, Colvin & Joseph, Baton Rouge, La., for intervenor Louisiana Dist. Judges Ass'n.
Fred J. Cassibry, Jan T. Van Loon, Sandra A. Vujnovich, Brook, Morial, Cassibry & Pizza, New Orleans, La., for intervenor Orleans Parish Dist. Judges Ass'n.
George Blair, Yvonne Hughes, Skidmore, Hughes & Associates, New Orleans, La., for intervenor Louis A. Martinet Soc.
P. Raymond Lamonica, U.S. Atty., M.D.L.A., Baton Rouge, La., Robert S. Berman, Voting Section, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for U.S.
Jack Benjamin, New Orleans, La., for Louisiana Organization of Judicial Excellence.
Frank Foil, Chairman, Litigation Committee, Baton Rouge, La., for Conference of Court of Appeal Judges.
H. Alston Johnston, III, Baton Rouge, La., for First and Third Circuit Courts of Appeal.
Robert McLeod, McLeod, Swearingen, Verlander, Dollar, Price & Noah, Monroe, La., for Second Circuit Court of Appeal.
Harry A. Rosenberg, M. Nan Allessandra, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Fifth Circuit Court of Appeal.
Fred J. Cassibry, Brook, Morial, Cassibry & Pizza, New Orleans, La., for 24th Judicial District Court.
Jess J. Waguespack, Assumption Bar Ass'n, Napoleonville, La., for Assumption Bar Ass'n.
Petter F. Caviness, Opelousas, La., for St. Landry Bar Ass'n.
Lila Tritico Hogan, pro se.
Carolyn Lahr Ott, pro se.
Linda L. Holliday, pro se.
Thomas J. Malik, pro se.
Madeline Jasmine, pro se.
Raymond L. Cannon, pro se.
Felicia Toney Williams, pro se.
Moses Junior Williams, pro se.
SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOHN V. PARKER, Chief Judge.
The Supreme Court has held plainly and clearly as to the election of justices of the Louisiana Supreme Court, in Chisom v. Roemer, ___ U.S. ___, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) that:
... Congress made clear that a violation of § 2 could be established by proof of discriminatory results alone. It is difficult to believe that Congress, in an express effort to broaden the protection afforded by the Voting Rights Act, withdrew, without comment, an important category of elections from that protection. Today we reject such an anomalous view and hold that State judicial elections are included within the ambit of § 2 as amended.
111 S.Ct. at 2368.
On the same date, in Houston Lawyers' Ass'n v. Attorney General of Texas (LULAC), ___ U.S. ___, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991), the Court made it plain *473 that Section 2 applies as well to election of State trial judges:
It is equally clear, in our opinion, that the coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected. If a State decides to elect its trial judges, as Texas did in 1861, those elections must be conducted in compliance with the Voting Rights Act.
111 S.Ct. at 2380.
Thus, the Court has now confirmed this court's original construction of Section 2 in this case. See Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988).
This matter is now before the court on a motion by plaintiffs for an order that special elections be held this fall under a remedial plan[1] and a motion by the State for reconsideration as to the Fortieth Judicial District. On August 19th, 20th and 21st, the court conducted an evidentiary hearing on both motions, with particular reference to Justice Stevens' remarks in the LULAC case that:
... we believe that the State's interest in maintaining an electoral system in this case, Texas' interest in maintaining the link between a district judge's jurisdiction and the area of residency of his or her voters is a legitimate factor to be considered by courts among the "totality of circumstances" in determining whether a § 2 violation has occurred. A State's justification for its electoral system is a proper factor for the courts to assess in a racial vote dilution inquiry, ... Because the State's interest in maintaining an at-large, district-wide electoral scheme for single-member offices is merely one factor to be considered in evaluating the "totality of circumstances," that interest does not automatically, and in every case outweigh proof of racial vote dilution.
LULAC, 111 S.Ct. at 2381.
At the conclusion of that hearing, the court orally gave its reasons for maintaining its prior rulings and ordering special elections to proceed this fall in districts where violations of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, had been previously found. The court now renders formal supplemental findings of fact and conclusions of law. The court will additionally take up a motion by the State defendants for a stay of the order directing judicial elections to be held this fall.
The court's original findings, reported at 725 F.Supp. 285, as modified by its findings of June 12, 1990, are hereby readopted. Procedural Posture of this Matter
At this late stage in the proceedings, it suffices to say that this class action challenges the current at-large election scheme employed by the State of Louisiana in connection with the election of district, family court and court of appeal judges. Plaintiffs contend that the practice of electing judges at-large within judicial districts operates to dilute black voting strength in violation of Section 2 of the Voting Rights Act. The appropriate remedy, according to plaintiffs, is to create subdistricts within judicial districts for election purposes.
Initially, it should be clearly understood that the court is not rushing to judgment, despite the fact that this case was remanded by the Supreme Court as recently as June 28th. A considerable amount of evidence has been received and numerous rulings have been made by the court over the last five years.
Particularly noteworthy is the court's ruling dated August 15, 1988, Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988), following the trial on liability. At that time, the law in the Fifth Circuit was that Section 2 applied to judicial elections, Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988) cert. denied, sub nom. Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988). After making extensive factual findings, the court followed the analysis set forth in Thornburg v. Gingles, *474 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), for determining when the use of at-large election schemes constitutes a violation of Section 2.
The court concluded that the "totality of the circumstances" inevitably showed that the present at-large scheme for judicial elections affords black citizens "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." The court further found that, although minority vote dilution had not been proven in each judicial district[2], that the remedy was to revise the system statewide. An injunction was issued precluding the holding of all family court, district court and court of appeal elections pending revision of the system.
Not long thereafter, the Fifth Circuit vacated that injunction observing that Thornburg required this court to act on a district by district basis rather than statewide. The Fifth Circuit found that the injunction was additionally inconsistent with the teachings of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) based upon its conclusion that the State authorities had not been given a reasonable opportunity to correct the violations. In vacating the injunction, the Fifth Circuit stated:
"We have no reason to doubt that the governor and legislature of Louisiana will promptly and properly respond to any violations of constitutional rights of the citizens of Louisiana. Should they fail to do so, it will then be incumbent upon the district court to act."
While that prophecy ultimately proved to be incorrect, this court delayed the remedy hearing in this matter for well over a year. During that interim, the Legislature adopted a "package" of constitutional and statutory amendments contingent upon approval of the voters. In November of 1989, the people of this State voted against the proposed revisions. Since that time, the Legislature has failed to take any further action or to respond in any fashion to the Section 2 violations found to exist by the court; nor has any request been made for additional consideration since the remand.
In February of 1990, the court held a trial on the remedy issues. The court additionally took up motions by the defendants and the Orleans Trial Judges Association for reconsideration of the court's findings on liability. Over the next few months, the court painstakingly considered the numerous maps, plans and proposals submitted by the parties. As the court was ready to render its findings of fact and conclusions of law on the remedy phase, a panel of the Fifth Circuit rendered a decision inconsistent with Chisom v. Edwards, 839 F.2d 1056 (5th Cir.1988). Although Section 2 was applicable to judicial elections, it was found that "there is no such thing as a `share' of a single-member office" and that consequently the use of county wide elections of district court judges in Texas was not violative of Section 2. League of United Latin American Citizens Council No. 4434 v. Clements, 902 F.2d 293 (5th Cir. 1990). A few days after the panel decision, a rehearing was granted en banc which under Fifth Circuit rules vacated the panel decision.
About that same time, however, this court had reached the inescapable conclusion that in view of Thornburg, supra, it lacked the power to impose a systematic remedy on the State and that any remedy must be limited to the "guilty" districts. The court further found merit to several of the arguments made for reconsideration as to liability. On June 12, 1990, faced with the fall 1990 regularly scheduled judicial elections, the court found it imperative to issue its findings of fact and conclusions of law which essentially opened the door for elections to be held in all but eleven districts.[3] In addition to supplementing and modifying its findings of vote dilution on a district by district basis, the court carefully considered a plethora of remedy proposals. *475 Ultimately, the court reluctantly concluded that the subdistrict approach suggested by plaintiffs is the only proposal within the court's power that will actually remedy the Section 2 violations.
On September 28, 1990, the Fifth Circuit handed down its en banc ruling in LULAC essentially holding that the 1982 amendment to Section 2 providing for a "results test" method of proving vote dilution claims is inapplicable to judicial elections. League of United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620 (5th Cir.1990). Chisom was specifically overruled. On October 2, 1990, this court heard a motion by defendants "to dissolve injunction" on an expedited basis. The motion was granted in open court. Since the regularly scheduled date for primary elections was October 6th, the court ordered judicial elections in the eleven affected districts to be held on the November 6th general election date, and set the next day, October 3rd as the opening date for qualification, as urged by defendants. On October 19th, the court signed a partial final judgment dismissing the Section 2 claims.
Certiorari was granted by the Supreme Court in the LULAC and Chisom cases on January 18, 1991. On June 18th of this year, the Supreme Court handed down rulings in both cases reversing the Fifth Circuit and squarely holding that Section 2(b) applies to judicial elections. Houston Lawyers' Ass'n v. Attorney General of Texas, ___ U.S. ___, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991); Chisom v. Roemer, ___ U.S. ___, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). On June 28th, this court's judgment was vacated and remanded by the Supreme Court "for further consideration in light of Chisom v. Roemer ..." Clark v. Roemer, ___ U.S. ___, 111 S.Ct. 2881, 115 L.Ed.2d 1047 (1991).
On July 5th, plaintiffs filed a motion requesting that the court order special elections to remedy the Section 2 violations previously found. The court granted the motion in part following oral argument held on July 17th. The court expressly rejected the argument made by defendants that the Supreme Court created a "new threshold test" requiring plaintiffs in Section 2 cases to establish that they have less opportunity to participate in the political process.
After denying a motion by plaintiffs to reopen the court's findings in certain districts where no violation of Section 2 had been found, an evidentiary hearing was held on August 19th through 21st, on the pending motions.
Summary of Additional Evidence
The first witness called to establish the State's interest in continuing its present election scheme was Eugene Murett, a former executive counsel to the Governor and a former Judicial Administrator for the Louisiana Supreme Court. According to Mr. Murett, there is a general concern that smaller election districts would subject judges to more special interest pressures. Under the present scheme, some litigants and lawyers have made complaints of "hometown justice." Mr. Murett further expressed his belief that it is important to link the geographical area from which a judge is elected to the area of his jurisdiction. In his opinion, more harm than benefit would result from the imposition of subdistricting in judicial elections. He also observed that merit selection judges is preferable to popular election.
Camille Gravel, a long time Louisiana lawyer and former Executive Counsel to the Governor, likewise testified that subdistricts would increase public perception of hometown justice and would be more detrimental than beneficial. In his view, the number of jury trials would also increase as public opinion of the judicial system erodes. Mr. Gravel felt that subdistricting would only intensify the problems inherent in electing judges. Mr. Gravel, conceding that he had not considered the matter at length, felt that plurality voting would be a better way to remedy the Section 2 violations. He also suggested appointment by nominating commission as an improvement over popular election. Similar sentiments were expressed by Wood Brown, III, former President of the Louisiana State Bar *476 Association, who has litigated in 26 of the 41 judicial districts in this State.
Defendants and the LDJA then called several distinguished retired judges to the stand. Former Chief Justice of the Louisiana Supreme Court, John A. Dixon, viewed subdistricting as the "worst possible way" to remedy a Section 2 violation. According to Justice Dixon, subdistricting would be a step backwards in race relations. In his opinion, merit selection would be the best remedy.
Former Chief Judge of the First Circuit Court of Appeal, Fredrick Ellis, testified that "continuity" of appellate judgeships is an important consideration. That is, the present scheme of staggering elections at the Court of Appeal level permits more experienced judges to sit on panels with newly elected judges. Judge Ellis observed that the business of rendering appellate decisions is quite different from judging at the trial court level. Over the long term, continuity in a Court of Appeal promotes consistency in decisions not only on the short term basis but furthers "jurisprudence constant" as well. Larger districts and longer terms of office for appellate court judges are other components of the present scheme for Court of Appeal judges that serve to keep appellate judges detached from local interests and pressures. Judge Ellis additionally noted that the practice of the First Circuit in composing three member panels (by taking one judge from each of the three election districts) acts to link the geographic area of the court as a whole with decisions made by each panel.
The Honorable Lewis Doherty served for many years as a district court judge and on the First Circuit and Supreme Court on an ad hoc basis. Judge Doherty's testimony was the same as Judge Ellis the longer terms and larger size of election districts for the courts of appeal promotes objectivity and detachment from local issues. Judge Doherty also felt that the way panels were formed in the First Circuit was important in maintaining impartiality.
The Honorable Mack E. Barham served on the District Court in Quachita Parish and the Second Circuit Court of Appeal and the Louisiana Supreme Court. Mr. Barham testified that, when he retired from the bench, he was shocked to discover how poorly the judiciary was perceived throughout the State. Mr. Barham also advocated a merit selection system, stressing the large amount of funds needed to campaign for judge and that in reality contributions are mainly received from lawyers who practice before the judge. However, Mr. Barham viewed subdistricting as a "disastrous" remedy for the same reasons expressed by the other witnesses for the defendants.
Defendants additionally presented the testimony of three registrars of voters from Quachita Parish, Caddo Parish and East Baton Rouge Parish. Essentially, each registrar testified that numerous election drives had been conducted in their parish at schools, stores and community centers in any effort to increase voter registration. Documentation relating to many of these drives was submitted into evidence by defendants.
Robert C. Williams, a black lawyer who has been active in political campaigns, was called, apparently for the purpose of confirming that there are no longer "structural" barriers to voting by blacks in Louisiana. He did not agree. Mr. Williams conceded that there are no longer laws restricting black voter access to the electoral process in Louisiana but in his view, because of past de jure discrimination and present socio-economic factors, even the requirement that black people apply for registration is a barrier.
Defendants presented expert testimony from Dr. Weber, a professor of political science. His concerns with subdistricting were two-fold: (1) the smaller the district the less diverse the electorate; and (2) larger districts provide the "maximum accountability," i.e. judges are accountable to a large segment of the population. Dr. Weber disapproved of "mismatching" election districts with the jurisdictional territory of a judge.
As to the Fortieth Judicial District, Dr. Weber discussed the 1990 elections for Divisions *477 "A" and "B." In November of 1990, five candidates ran for election in Division "A," including Judge Caire, the white incumbent, and Madeline Jasmine, a black female. Jasmine received the highest number of votes (32.6%) and Judge Caire came in third with 22.2% of the votes. In the runoff election in December, Jasmine won, receiving 54% of the total votes.
In Division "B," the white incumbent, Judge Malik, defeated a white opponent. Dr. Weber gave his opinion that both Judge Malik and Judge Jasmine were the preferred black candidates in those elections. Dr. Weber testified that the 1990 election results establish that a black can be elected in Fortieth Judicial District.
Plaintiffs called Judge Robert Gibbs, a black Circuit Judge for Hinds and Yazoo Counties in the State of Mississippi. Judge Gibbs was elected in 1990 from a judicial subdistrict imposed as a remedy in connection with a similar lawsuit challenging Mississippi's use of at-large election districts for judicial office holders. See Martin v. Mabus, 700 F.Supp. 327 (S.D.Miss.1988). He testified that there are two white and two black circuit judges in the judicial district. The subdistrict from which he was elected has a population of about 78,000 and includes Jackson, Mississippi. Judge Gibbs denied being affected by local pressures, noting that in most cases he does not know whether a party resides within his subdistrict. He also stated that he is aware of no pressure upon his colleagues of either race.
Judge Gibbs further testified that his being on the bench had actually improved the perception by blacks of the judicial system. According to Judge Gibbs, black jurors have been pleasantly surprised when he takes the bench. Judge Gibbs expressed his belief that blacks have a new sense of pride and confidence in the judicial system now that there are some black judges on the bench. In comparison, three of the named plaintiffs in this action, testified that the general perception by the black community of the judicial system in Louisiana is one of apprehension and mistrust.
Barry Powell, a white trial lawyer in a large firm in Jackson, Mississippi, testified as to the bench-bar relationship since subdistricting has been imposed there. Mr. Powell testified that "hometown justice" in subdistricts has not been a concern of the Bar following imposition of the subdistrict remedy by the Southern District of Mississippi in 1988. As lawyers all over the district are traditionally involved in judicial races, Mr. Powell testified that all of the judges were held accountable in the same fashion as prior to subdistricting. He additionally indicated that the prior system was perceived to be unfair to blacks.
Plaintiffs' expert in political science, Dr. Richard Engstrom, reviewed certain tables submitted into evidence relating to the population size of judicial districts as presently drawn and the subdistrict proposals presented by Dr. Weber to the court. Dr. Engstrom concludes that the current use of judicial districts with population figure under 10,000 shows that the State has no policy against creating judicial districts that size.
In connection with the proposal made by defendants for plurality vote by division, Dr. Engstrom noted a "well known" generalization in the literature that plurality elections tend to have less candidates as opposed to majority elections where a candidate's initial effort is simply to get into the run off. He further noted that, in all the Louisiana elections he has studied, there has never been a judicial election where a black-preferred candidate would have benefited by dropping the majority vote requirement, including the recent election held in the Fortieth Judicial District. Simply put, if the majority voters do not scatter their votes among several candidates, the minority preferred candidate loses.
In connection with recent suggestions that there be plurality without divisions, Dr. Engstrom expressed his view that this would allow for single-shot voting by black voters, that is, black voters theoretically could win by casting votes for their preferred candidate only. However, Dr. Engstrom was of the opinion that this would *478 not cure vote dilution because it necessarily depends upon majority voting patterns as well. As exhibit P-8 demonstrates, such a system would not eliminate minority vote dilution in the eleven trial court and appellate districts. One of the worst features of this procedure would be to require all judges to become candidates in every election.
With regard to the Fortieth Judicial District, Dr. Engstrom stressed that Judge Jasmine received only 1.4% of the non-black vote in the primary and 22.1% of the non-black vote in the run off. Dr. Engstrom considered this to be an atypical election inasmuch as it was conducted while this action was pending, Judge Jasmine was endorsed by the local district attorney (white) and the black turnout was higher than usual. According to Dr. Engstrom, Judge Jasmine would not have been elected if white turnout had been equal.
New Test Argument
The State defendants advance the proposition set forth in Justice Scalia's dissent in Chisom v. Roemer, that the Court has now established a new test for finding Section 2 violations, different from the Thornburg standard. See 111 S.Ct. at 2371.
In this court's view, it is very doubtful that the majority in Chisom intended to set new obstacles for plaintiffs attempting to prove Section 2 violations. Justice Stevens, for the majority, makes it plain that Justice Scalia speaks only for the dissent, not the Court:
Any abridgement of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election. As the statute is written, however, the inability to elect representatives of their choice is not sufficient to establish a violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. The statute does not create two separate and distinct rights. Subsection (a) covers every application of a qualification, standard, practice, or procedure that results in a denial or abridgement of "the right" to vote. The singular form is also used in subsection (b) when referring to an injury to members of the protected class who have less "opportunity" than others "to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973 (emphasis added). It would distort the plain meaning of the sentence to substitute the word "or" for the word "and." Such radical surgery would be required to separate the opportunity to participate from the opportunity to elect.
111 S.Ct. at 2365.
The fact that three of 64 parish registrars of voters regularly conduct registration drives does not establish that all barriers to minority voter access have been removed in Louisiana. The historical de jure and de facto restrictions on minority voting, the socio-economic factors and other matters set forth in this court's earlier rulings have not been shown to have dissipated. They still operate to discourage more blacks than whites from full participation. This court does not accept the notion that black people voluntarily remain under-educated and poor and thus bring their lack of participation upon themselves. The court does concede that some progress has been made, and lauds the efforts of the three registrars of voters who testified.
For these reasons and those previously given at oral argument held on July 17, 1991 and again at the conclusion of the hearing held August 19 21, the court rejects the argument of defendants that plaintiffs must make some further showing as to the "participation issue."
Adoption of Prior Findings and Conclusion as to § 2 Violations
No good purpose would be served by the court restating the numerous findings of fact and conclusions of law previously reached in this matter, as noted above. In short, the court adopts its prior findings and conclusions made in connection with the ultimate decision that plaintiffs have proven Section 2 violations in eleven judicial districts.
*479 Having reviewed the totality of the evidence as presented in 1988, 1990 and 1991, this court has once again, "... carefully considered the totality of the circumstances and found that in each district racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the ... districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice ..." Thornburg v. Gingles, 478 U.S. 30, 80, 106 S.Ct. 2752, 2781, 92 L.Ed.2d 25 (1986). Thus, the court maintains its prior ruling that black voters in those eleven judicial districts have less opportunity to elect representatives of their choice because they have less opportunity to participate in the political process under the current election scheme.
State Interest Affecting Violation
In remanding the LULAC case to the Fifth Circuit, Justice Stevens clearly recognized the State's interest in "maintaining a link between a district judge's jurisdiction and the area of residency of his or her voters" as a relevant factor in determining the "totality of the circumstances that must be considered under the "results test" of Section 2 in connection with a finding of violation and with the imposition of a remedy. The Fifth Circuit has scheduled oral argument in that matter for November 4th. While it might be desirable to await the Fifth Circuit's ruling on remand, this court, for reasons stated below, finds that a remedy in this matter is long overdue.
The State defendants suggest that under Justice Stevens' reference in LULAC, the State's interest in maintaining the link between a district judge's jurisdiction and the area of residency of his or her voters, precludes any finding of violation in Louisiana's electoral scheme.
Evidence was presented to the court at the hearing conducted on August 19, 20 and 21 concerning the vital interest of the State in linking the geographical area from which a trial judge is elected to his jurisdiction. The witnesses all testified that there is such an interest but there is nothing in the record to precisely explain what that linkage is, except that all of the witnesses agreed that larger districts are better than smaller districts in judicial elections. They also all agreed that popular election of judges has already produced a judicial system where the perception of "hometown" justice prevails. Witness after witness advocated merit selection over popular election.
This court must conclude, on the basis of the entire record, that no such vital state interest precludes a finding of Section 2 violations.
This court is unaware of what the LULAC record shows regarding the State's interest in linking the geographical area from which a trial judge is elected to the court's jurisdiction, but the court is fully aware that this record supports no such linkage argument.
State Interest Affecting Remedy
The State defendants also suggest that the same linkage interest precludes any change in the electoral scheme for remedy purposes. Again, on the basis of the entire record, the court rejects that argument.
Use of Subdistricts is Proper Remedy
The State defendants argue that even if there are violations of Section 2 of the Voting Rights Act, creation of subdistricts as a remedy itself constitutes violation of that same Section 2. A powerful argument can and is made that for each subdistrict created, the voters in that subdistrict are deprived of the opportunity to vote in the elections of other judges who are elected by voters outside the subdistrict. For example, if a judicial district with four judges is subdivided into four subdistricts, each to elect one judge, each voter in each district loses three of the four votes he or she formerly had.
That is certainly one of the worst features of using subdistricts for judicial elections. It is one of the strongest reasons this court has spent five years attempting *480 to convince the parties that the solution to Section 2 violations is to change the system, not tinker with a few "guilty" judicial districts. The court failed in that effort.
However, Thornburg v. Gingles plainly shows that the Supreme Court does not find the concept of drawing subdistricts for election purposes to be inherently unfair or unconstitutional. There is no constitutional right to elect a certain number of judges. The one man one vote rule is inapplicable to judicial elections. Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973).
Given the federal imperative of imposing a remedy which will actually eliminate the vote dilution and the constraints upon federal courts which require observation of state policy, except to the extent necessary to eliminate the violations, this court again concludes that subdistricts present the only solution which satisfies all factors.
This court, in the June 12, 1990 ruling, reviewed in detail every proposal made as a remedy and concluded that each of them, except subdistricts, either required this court to change the system or would not actually eliminate the violation. Nothing was presented at the hearing on August 19-21 which changed that conclusion.[4] The court finds itself in the same dilemma as in 1990 proposals such as plurality voting simply will not eliminate the violations and proposals, such as merit selection, are beyond the court's authority.
The drawing of subdistricts does the least harm to the State's established policies and will most certainly correct the violations.
It is abundantly clear that the State of Louisiana has repeatedly divided judicial districts into smaller districts. The court has set forth some of the most recent legislation on a table, which is attached hereto as appendix "A." The State's own actions refute any argument that there is any actual state policy as to the size of judicial election districts. The smallest subdistrict which will be drawn as a remedy in this matter contains 13,000 people and is larger than three districts that have been created by the State.
There can be no dispute that "hometown justice" has no place in a judicial system. Undoubtedly subdistricts could be drawn so small as to be an unacceptable remedy. However, this is an abstract concept and there is the other side of the coin to be considered. The testimony presented by plaintiffs supports a finding that the present scheme is perceived to be manifestly unfair by minorities. The testimony of Judge Gibbs was particularly convincing; subdistricting may well result in an improved perception of the judicial system by a people of good will of all races.
Therefore, the court concludes that based on the record of this case that subdistricts are the least intrusive workable remedy.
Violation of § 2 in the Fortieth Judicial District
The court has carefully reviewed the additional election information presented as to the Fortieth Judicial District. At first glance, the recent election of Judge Jasmine appears to support a reversal of this court's findings on liability as to that district. However, upon closer examination, as testified by Dr. Engstrom, Judge Jasmine's election is the result of a culmination of unusual circumstances. The court is by no means persuaded that vote dilution has been cured in that district, particularly in view of the low percentage of cross over voting.
Remedy The Trial Courts
Plaintiffs and intervenors, the Louisiana District Judges Association, have entered *481 a stipulation as to subdistrict lines and the divisions to be allocated to those subdistricts. The court hereby approves that stipulation and adopts it as the remedy at the trial court level.
Under the stipulation, elections will be held in only nine of the ten trial court districts. No sitting state judge will stand for election. The few minority judges will not stand for office. The court adopts the notion of "ad hoc" or interim judges who will continue in office until death, retirement, resignation or the next regularly scheduled judicial election (1996). These judges may serve in their present districts or as assigned throughout the State by the Supreme Court of Louisiana. There are only six "ad hoc" or interim judges and all of their terms will expire no later than 1996. In a State which already has more than 200 judges, retaining these six experienced judges for up to six years is a slight financial burden upon the State. Moreover, it serves the desirable purpose of providing for a smooth transition into a violation free system.
No presently sitting State judge will be turned out of office, or be required to stand for election at this time, minimizing the shock to the State's judiciary.
Remedy Court of Appeal, First Circuit
Unlike the trial judges, the Court of Appeal and plaintiffs have been unable to stipulate on subdistrict lines, the divisions to be assigned to subdistricts or anything else. The plaintiffs and the Court of Appeal do agree, however, that the concept of an interim or temporary judgeship, such as at the trial court level, is also essential at the Court of Appeal level.
In its brief, amicus curiae, the Court of Appeal points out:
In the case of the appellate courts in Louisiana, it is clear that the state interests are weighted differently from those of the district courts. The terms of appellate judges are ten years; those of district courts are six years. The terms of appellate judges are staggered; those of district courts are not. The districts from which appellate judges are elected are almost always larger than those from which district judges are elected. For its own reasons, the State of Louisiana has chosen to make the appellate judges less "responsive" to the electorate by lengthening their terms and enlarging their districts and to give them greater opportunity to be detached and objective. It has chosen to place in the court on which they serve a greater emphasis on continuity and stability; it has not made the same choice with respect to district judges.
This court certainly agrees that the factors enumerated are important. Staggered terms and continuity are very important factors at the appellate court level and this court will certainly observe staggered terms, as set by the State of Louisiana in the remedy.
The testimony of Judge Ellis and Judge Doherty is to the effect that use of larger Court of Appeal election districts enhances the detachment from local concerns which is desirable in an appellate judge. This court has no difficulty in accepting that notion, in principle, just as it was accepted at the trial court level, in principle. Here again, however, it cannot be said that Louisiana actually embraces and attempts to apply any cogent policy along those lines.
The First, Second and Third Circuit Courts of Appeal each have three election districts, each containing roughly three hundred thousand to four hundred thousand population and the Second and Third Circuits each have in addition an at-large district. The Fourth and Fifth Circuits are very different. The population of the election districts varies greatly.
The Fourth Circuit:
District 1 8 judges 496,938
District 2 1 judge 25,575
District 3 1 judge 66,631
At-Large 2 judges 589,144
The Fifth Circuit:
District 1 6 judges 448,306
District 2 1 judge 36,294
District 3 1 judge 46,139
If District 2 of the First Circuit is divided into four subdistricts, as proposed by Dr. Weber, each would contain some 95,000 *482 people or nearly four times as many as District 2 of the Fourth Circuit and more than double most of the other small districts in the other circuits.
Thus, the creation of smaller election districts cannot be said, per se, to violate any enunciated policy of the State of Louisiana. It can hardly be argued that a subdistrict with a population of 95,000 is so small as to be subject to "local" pressure when compared to the 26,000 population of District 2 of the Fourth Circuit.
While the evidence has certainly established many desirable elements of a sound judicial system, the record in this case will not support the conclusion that the State of Louisiana actually follows any policy regarding the size of court of appeal election districts.
This court also notes that District 2 of the First Circuit consists of East Baton Rouge Parish, exactly the same election district as that of the trial courts, the Nineteenth Judicial District Court and the Family Court for the Parish of East Baton Rouge.
Under these circumstances, the court concludes that Louisiana itself has not observed any particular "linkage" of geographical area to jurisdiction at the Court of Appeal level on any consistent basis. Consequently, the court does not trample upon any vital state interest by creating one or more election subdistricts at the Court of Appeal level.
As noted above, Louisiana has established a policy in favor of staggered terms at the Court of Appeal level and in fashioning a remedy this court will adhere to that established policy.
Moreover, there being no current vacancy nor imminent retirement planned among the judges of District 2 of the First Circuit Court of Appeal, this court accepts the suggestion that none of these experienced judges[5] should be required to terminate a term early or to stand for election at this time.
As recommended both by plaintiffs and the Court of Appeal, the court will order that a fifth division be an interim or temporary judgeship. The fifth division, to be designated as Division E of District 2, of the Court of Appeal, First Circuit shall be elected at the elections scheduled in October, 1991 from the subdistrict drawn by Dr. Weber and designated as Subdistrict 2 on the map entitled "Defendants' Plan," containing the voting precincts as set forth in the document entitled "First Circuit, Second District Court of Appeals (sic) Defendants' Remedy Proposal, August 19, 1991." The term of office of Division E shall commence on January 1, 1992 and end on December 31, 2001.
The present judges of the other divisions of District 2 of the First Circuit Court of Appeal will continue to serve out their established terms of office. The interim Division E judgeship will remain in effect only until a vacancy occurs under Louisiana law by resignation, retirement or death (not by expiration of term) in one of the other divisions or upon creation of a new judgeship, whichever occurs first. This court is confident that at some time within the next decade there will be a vacancy from among those four divisions. When the first vacancy occurs, the judge serving in Division E will assume the letter designation of the vacant division and that division will then be assigned to Subdistrict 2 for election purposes.
The court has concluded that the subdistricts drawn for the Court of Appeal by Dr. Weber are superior to those proposed by plaintiffs, primarily because there is almost no population deviation from the "ideal" in Dr. Weber's proposal. Those proposed by plaintiffs contain significant deviation.
The Court of Appeal has also suggested the desirability of creating only two subdistricts, one a majority black district and the other for the election of all of the other judges of that district to the Court of Appeal. Plaintiffs argue that creation of such a "super subdistrict" would have the effect *483 of placing some sort of stigma upon the judge elected from the smaller subdistrict and that the creation of such a subdistrict is prohibited by League of United Latin American Citizens, Council No. 4386 v. Midland Independent School District, 812 F.2d 1494, vacated on other grounds, on reconsideration, 829 F.2d 546 (5th Cir. 1987). That case involved election districts for trustees of a school district. As this court has commented on several occasions and as the Supreme Court has commented and as the Fifth Circuit has commented, there are significant differences between judges and all other elective offices, school board, State Legislature, municipal governing body or whatever. This record is replete with evidence of the desirability of larger election districts for appellate judges. While this court has noted the absence of a coherent Louisiana policy in this regard and the court in no way considers an election district with a population of 95,000 as "small," the court does conclude that creating only two subdistricts would be the least intrusive action which would remedy the Section 2 violation. Accordingly, Subdistrict 2 will be the district drawn by Dr. Weber and Subdistrict 1 will be the remainder of District 2 of the Court of Appeal, First Circuit, from which Divisions A, B, C and D will be elected.
The State's Motion to Stay
The State defendants move to stay the order of the court which directs that judicial elections by sub-election district proceed in eleven district, family court and court of appeal districts in October, 1991.
As previously noted, the Supreme Court recently remanded this action to this court for further consideration in light of the court's rulings in Chisom v. Roemer and League of Latin American Citizens v. Clements (LULAC). This court has found, for the third time, that Louisiana's popular electorial scheme for State district, family court and court of appeal judges violates Section 2 of the Voting Rights Act of 1965.
The motion for a stay of judgment on behalf of defendants suggests that this court should delay implementation of any remedy because the LULAC v. Clements case is pending before the Fifth Circuit at this time and particularly in view of the "questions for counsel" issued by the court to counsel in that case.
When the en banc LULAC decision came down, this court vacated its prior injunctive orders and allowed the regularly scheduled Louisiana judicial elections for 1990 to proceed. Louisiana has elections for governor and other (non-judicial) officers already scheduled for October, 1991. The expense of adding judicial elections in the ten judicial districts involved will be negligible compared to the cost of scheduling special elections at some later date, particularly considering that the court does not order elections at this time except in the majority black subdistricts which have vacancies. Thus, there will actually be elections only in ten judicial districts. Special elections will be held in eight district courts, one family court and one court of appeal district, for a total of eighteen offices. The elections already scheduled include governor and all other state-wide offices, both houses of the Legislature and many local governmental elections state wide.
It has been suggested to the court by some of the many amicus briefs filed in this case that, at the time the October 1990 elections were held, the governing law was the en banc decision in LULAC, holding that Section 2 of the Voting Rights Act does not apply to judicial elections. The argument continues that, since those elections were then lawful, the results should be allowed to stand, thus postponing any remedy until the end of the terms of office of those who were elected in 1990 and earlier. As noted, this ruling does not shorten the term of any elected Louisiana judge.
The Pending LULAC Case
For reasons which are set forth at length in this court's rulings dated August 15, 1988, June 12, 1990, those orally delivered August 21, 1991 following the evidentiary hearing and the newly entered findings of fact and conclusions of law, the court rejects the notion that the State has a greater interest in linking election districts and geographical jurisdiction in judicial election *484 districts than in ridding judicial elections of minority vote dilution which violates federal law.
The court has obtained a copy of the "questions for counsel" issued by the Court in LULAC and has examined them. It is clear that this court has previously considered all of those issues except question No. 1 (the standard by which the appellate court should review the district court's findings) and this court has reconsidered those issues on the additional evidence received. In this court's findings of August 15, 1988 and June 12, 1990, all those issues were considered and discussed, although not, perhaps, in the precise language used by the Fifth Circuit. The previous findings of violation ("liability") have been reaffirmed upon consideration of the additional evidence and review of the LULAC and Chisom opinions of the Supreme Court.
General Equitable Principles Favor Prompt Relief
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) teaches that:
In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles ...
377 U.S. at 585, 84 S.Ct. at 1394.
Some years ago in Wallace v. House, 377 F.Supp. 1192 (W.D.La.1974), aff'd in part, rev'd in part, 515 F.2d 619 (5th Cir.1975), judgment vacated 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976), aff'd on remand, 538 F.2d 1138 (5th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977), Judge Dawkins, when faced with vote dilution in a municipal governing body noted:
[T]his Court and other District Courts have found that where a governing body has been elected under a malapportioned plan, or an election scheme such as at-large elections, cancelling out the voting strength of a cognizable portion of the populace, thus denying them access to the political process, prompt new elections are appropriate.
377 F.Supp. at 1201.
Federal courts have ordered special elections to remedy violations of voting rights on many different occasions. See, e.g., Toney v. White, 488 F.2d 310 (5th Cir.1973).
Judge Dawkins dealt with a constitutional violation in Wallace v. House, supra. No constitutional issues have been addressed in this case, although plaintiffs have pled them. This court has preferred to deal with statutory violations only. That the vote dilution of minority voters has occurred in violation of a federal statute rather than in violation of the Constitution makes prompt new elections no less imperative.
This court orders special elections only in the majority black subdistricts having vacancies. Incumbent judges in majority white subdistricts will serve out their terms. Thus, the court recognizes the well known principle that any remedy imposed must be the least intrusive possible. Similarly, the court will not require the few minority incumbents in minority subdistricts to campaign at this time.
In ordering that elections be held in the majority black subdistricts, this court considers that the following factors favor immediate remedy:
1. The State has elections already scheduled for October 1991 and the cost of adding these few elections is negligible in comparison to the cost to holding special elections at some future date.
2. This action was commenced by the plaintiffs on July 1, 1986 more than five years ago.
3. After its 1988 finding of liability this court delayed about a year and a half to allow the State Legislature and other State officials time to fashion a remedy. The State has failed to do so.
4. The next regularly scheduled elections for trial judges are at least five years away. This is the third time that this court has made findings of violations of Section 2 of the Voting Rights Act in these eleven *485 judicial districts and plaintiffs have yet to obtain any remedy.
5. But for the as it turned out erroneous decision of the Fifth Circuit in the LULAC case, these plaintiffs would already have their relief, because the subdistrict elections would have been held at the regularly scheduled judicial elections in 1990.
6. All of the candidates in the 1990 elections were either judges or lawyers and all were aware of these proceedings and of the rulings of this court.
7. All candidates were also aware that neither the LULAC case, the Chisom case, nor this case were final rulings and that the Supreme Court might reverse the Fifth Circuit's LULAC decision, as it did.
8. With deference to the majority in the Fifth Circuit en banc LULAC decision, no knowledgeable lawyer or judge, federal or state, in Louisiana was surprised by action of the Supreme Court in LULAC.
9. All who became candidates in the 1990 elections took the chance that the Supreme Court would reverse the Fifth Circuit's decision in LULAC.
10. By virtue of the stipulation between plaintiffs and the Louisiana District Judges Association, intervenor, which is approved by the court, no incumbent State judge will be required to stand for election at this time. All will be allowed to serve out their full terms. This situation may not exist at a future time.
11. The record before this court does not support any "linkage" argument as to either "liability" or remedy.
Those factors favoring delay: NONE.
This court is aware that district courts ought not to go leading the charge into new and uncharted legal waters when there is pending circuit court authority which might be applicable. These are not new and uncharted waters for this court, however. There are differences between this litigation and the LULAC litigation although there are, of course, many similarities. There is some chance that the Fifth Circuit might find some "linkage" argument persuasive in the LULAC case. This court, upon the record before it, is firmly convinced that there is no basis for using the "linkage" argument to impede this court's findings on either liability or remedy.
The plaintiffs won their case on the facts and the law in 1988, won it again in 1990 and again in 1991. They have been waiting for relief ever since then. This court can find no reasonable cause for further delay in granting relief and, in view of the nominal expense to the State requiring the addition of these elections in October of 1991 is appropriate.
Accordingly, the motion to stay proceedings pending appeal is hereby DENIED.
There will be judgment in favor of plaintiffs as set forth herein.
*486 APPENDIX A
RECENT LEGISLATION SUBDIVIDING JUDICIAL DISTRICTS
Act No. District as Continued District Created
1976 No. 47 8th JDC Winn 35th JDC Grant
16,269* 17,526*
17,253** 16,703**
1979 No. 635 10th JDC Natchitoches 39th JDC Red River
36,689* 9,387*
39,863** 10,433**
1978 No. 14 14th JDC Calcasieu 38th JDC Cameron
168,134* 9,260*
167,223** 9,336**
1975 No. 13 25th JDC Plaquemines 34th JDC St. Bernard
25,575* 66,631*
26,049** 64,097**
1977 No. 620 28th JDC LaSalle 37th JDC Caldwell
13,662* 9,810*
17,004** 10,761**
1982 No. 21 29th JDC St. Charles 40th JDC St. John
42,437* the Baptist 39,996*
37,259** 31,924**
1977 No. 164 30th JDC Vernon 36th JDC Beauregard
61,961* 30,083*
53,475** 29,692**
* Total Population Based upon 1990 Census
** Total Population Based upon 1980 Census
Note: 1975 Legislation onward (approving propositions that were submitted and approved by the
electors) resulting in amendments to La.R.S. 13:477.
NOTES
[1] The districts at issue are the First, Fourth, Ninth, Fourteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-Fourth and Fortieth Judicial District Courts; East Baton Rouge Family Court; and the First Circuit Court of Appeal, District Two.
[2] On August 31, 1988, the court entered a ruling specifying the districts where Section 2 violations had been found. See Clark v. Edwards, 725 F.Supp. 285, 303-307 (M.D.La.1988).
[3] That ruling naturally had no effect upon Section 5 violations.
[4] Defendants' argument reasserting plurality vote by divisions provides no basis for reopening that door. As noted by Dr. Engstrom, the fatal flaw in such a remedy is that it has no reasonable assurance of being a workable alternative.
The suggested remedy of plurality without divisions causes all of the judges in a district to run against each other every election date. With divisions, a competent judge may be reelected without opposition. Not only does this promote stability or continuity within the judiciary, it minimizes "in house" disagreements. The elimination of divisions would result in judicial offices become more political than ever.
[5] One of those judges has limited experience at the appellate level but long experience at the trial court level.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2259747/
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17 Cal.Rptr.3d 437 (2004)
121 Cal.App.4th 655
The PEOPLE, Plaintiff and Respondent,
v.
Deontray HINTON, Defendant and Appellant.
No. C043690.
Court of Appeal, Third District.
August 12, 2004.
*438 Shama H. Mesiwala, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez and Virna L. Depaul, Deputy Attorneys General, for Plaintiff and Appellant.
BY THE COURT.
The issue presented is whether the trial judge erred by giving the deadlocked jury a "dynamite" instruction. In his charge, the judge emphasized the case must be decided by a jury at some point. He said a trial necessitated a substantial investment in time and resources. He told jurors holding a minority position to "respect the majority opinion" and to "question their own judgment if a majority of the jurors take a different view of the case." With this, the judge acted in clear and prejudicial violation of the California Supreme Court's holding in People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (Gainer). Consequently, we must reverse.
BACKGROUND
A dispute, which attracted many onlookers, took place in front of defendant's house. According to prosecution witnesses, defendant had a gun and fired into the air. On the other hand, defendant presented witnesses who indicated someone else had a gun and fired the shot.
Defendant was tried by jury on charges of unlawful discharge of a firearm and being a convicted felon in possession of a firearm. The day after jury deliberations began, the jury sent the court a note, stating: "We seem unable to reach agreement." The jury was called back into court.
After making a few comments unrelated to the impasse, the trial judge stated: "This is a significant turn of events, obviously. And I respect everyone's opinion and everyone's conscientious effort to try to do this. This case involved a great deal of effort by both the parties, a great deal of time and preparation, no small amount of time of your own, and everybody else's, heat, light, in the building, and the rental, and dedication of resources to this matter. An inability to come to a conclusion one way or the other, 12-0, 0-12, means we would not complete the task that we all set out to do.
"There was a Rabbi who in the Third Century said, said to have said: If not us, and if not now, when. The short answer to that question, those questions are another 12 or 15 people. And when is going to be later. I don't know when, but the People will be free to bring the case again. I had a few other instructions. I'm not sure who wrote these. I don't know if they came from an appellate court or not, but they're about actually, they're about choosing a [presiding juror]. And so it tells the jury to choose a [presiding juror] who can insure that these things happen. I am sure we have the right [presiding juror] so I didn't give it. But do let me share the kinds of things that I think we all want to go on in deliberations, and then I would appreciate your all telling me if we *439 got this done if that's what we all did, or if somehow we didn't. So let me share this." The judge read instructions concerning the appropriate conduct of the jury in deliberations.
The judge subsequently stated, "Let me just share this final counsel and then ask a few more questions. This repeats that. The jurors should listen with proper deference to each other and should question their own judgment if a majority of the jurors take a different view of the case.
"The jurors should not, however, surrender their own convictions of the truth and weight of the evidence. Each juror must decide the case for himself or herself and not merely acquiesce to the conclusion of others.
"The verdict should represent the individual opinion of each juror. In reaching a verdict a juror should not violate his or her individual judgment and conscience.
"So this kind of restates what I said the other day. I mean it says respect the majority opinion, but don't give up your own view, as I read that. And so that's only marginally helpful, to my view of thinking."
The judge then questioned the presiding juror and the other jurors. The presiding juror and some jurors advised the court they believed they had fairly deliberated and simply reached a respectful difference of opinion. However, other jurors subsequently suggested additional time might yet make a difference and the presiding juror stated, based on some of the comments, it appeared more time might be helpful. The judge responded: "Well, I appreciate that. I appreciate all of those who express a similar view. I, just because of the magnitude of the effort that's gone to this point, I'm just very reluctant to turn away and toss that out the window and say and put us all back to square one. Because, as the Rabbi said: I think this is the right group. Wewe have got a very fine group to decide this question. And I would be hard pressed to find a better twelve people.
"I am going to ask that you go back and give it another solid try and keep us posted as before. Whatever you need. We're here to help. . . . And I appreciate very much your conscientious effort on this part."
After the jury left, there was an off-the-record discussion and defense counsel then placed on the record an objection to the court's "dynamite" instruction, stating it was "a civil instruction."
The jury reached its verdict the next day. Defendant was convicted of unlawfully discharging a firearm in a grossly negligent manner and possession of a firearm by a convicted felon. Based on these convictions, the trial judge revoked defendant's probation from a previous case.
DISCUSSION
Defendant claims the trial judge improperly and prejudicially advised the jury following its initial inability to reach a verdict. As already made clear, we agree.
The trial judge's remarks were error in light of Gainer, supra, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, which held certain components of a so-called Allen or dynamite instruction violated state law. (See Allen v. United States (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (Allen); see also People v. Remiro (1979) 89 Cal.App.3d 809, 153 Cal.Rptr. 89.) The Gainer court held: "[B]oth controversial features of the Allen-type charge discussed herein inject extraneous and improper considerations into the jury's debates. We therefore hold it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division *440 or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." (Gainer, supra, at p. 852, 139 Cal.Rptr. 861, 566 P.2d 997.)
The Supreme Court noted the latter improper component of an Allen-type instruction was not specifically approved in Allen itself, and these types of instructions had been developed through "[d]ecades of judicial improvisation." (Gainer, supra, 19 Cal.3d at p. 845, 139 Cal.Rptr. 861, 566 P.2d 997.) The court also observed: "A third common feature of Allen-type instructions is a reference to the expense and inconvenience of a retrial. While such language was absent from the charge in this case, it is equally irrelevant to the issue of defendant's guilt or innocence, and hence similarly impermissible." (Id. at p. 852, 139 Cal.Rptr. 861, 566 P.2d 997, fn. 16.)
The trial judge's remarks to the jury here, even when considered in context, typify all three improper components of this type of instruction.
First, the judge instructed jurors holding a minority position to question that position in light of the majority's view. The judge stated that the jurors should "respect the majority opinion" and should "listen with proper deference to each other and should question their own judgment if a majority of the jurors take a different view of the case." That the judge also emphasized each juror must still reach his or her own decision did not repair the damage done by the instruction. Like the instruction in Gainer, it directed "the jurors to include an extraneous factor in their deliberations, i.e., the position of the majority of jurors at the moment." (Gainer, supra, 19 Cal.3d at p. 848, 139 Cal.Rptr. 861, 566 P.2d 997.)
Second, the judge indicated the case would be retried if the jury could not agree. Though the judge said at one point the prosecutor would merely be "free" to try the case again, the judge implied the case would be retried if the jury could not agree. The judge stated the case would at some point be decided by "another 12 or 15 people" and later reiterated it "would be hard pressed to find a better twelve people."
And third, the judge emphasized the costs of the trial and implied that it would be necessary to expend further costs in a retrial. Near the beginning of his remarks, the judge directly referred to the time and resources devoted to the trial, as well as the other expenses incurred.
The judge's remarks, considered individually and collectively, injected extraneous and improper considerations into the jury's deliberations. (Gainer, supra, 19 Cal.3d at p. 852, 139 Cal.Rptr. 861, 566 P.2d 997.)
The judgment must be reversed based on the error here, which cannot be characterized as harmless. Our own view of the weight of the evidence is not dispositive in these circumstances, because the jury actually reached an initial deadlock or impasse. "[W]hen the erroneous admonition to minority jurors is given or repeated to a criminal jury which have indicated that they are divided, it is difficult if not impossible to ascertain if in fact prejudice occurred; yet it is very likely that it did." (Gainer, supra, 19 Cal.3d at p. 855, 139 Cal.Rptr. 861, 566 P.2d 997.) Accordingly, "a conviction following such a charge given in those circumstances is a `miscarriage of justice' within the meaning of article VI, section 13, of the California Constitution, and the judgment must be reversed." (Ibid.)
Furthermore, the judge's other remarks aggravated this error. Statements indicating *441 the case must at some time be decided present "a significant danger that the verdict will be influenced by a false belief that a mistrial will necessarily result in a retrial" and the concomitant expense to the government. (Gainer, supra, 19 Cal.3d at p. 855, 139 Cal.Rptr. 861, 566 P.2d 997.) Any juror in a voting minority would have been particularly susceptible to the multiple pressures exerted by the judge, and it might well have been one or more of such jurors who ultimately suggested further deliberations could be helpful.
The judge's error here is particularly troubling considering the law is so well settled. Even worse, in overruling defendant's objection, the judge indicated he instructed the jury based on a benchbook on civil proceedings and on a civil case, Inouye v. Pacific Southwest Airlines (1981) 126 Cal.App.3d 648, 179 Cal.Rptr. 13 (Inouye). The instruction used in Inouye was similar in certain respects to some of the comments made by the judge here. (See id. at pp. 650-651, 179 Cal.Rptr. 13.) But the Inouye court recognized: "`This type of instruction was disapproved for use in criminal trials by the Supreme Court in [Gainer, supra, 19 Cal.3d 835, [139 Cal.Rptr. 861, 566 P.2d 997]].'" (Id. at p. 651, 179 Cal.Rptr. 13.) The Inouye court found the particular considerations in a civil case to be distinguishable and concluded the instruction was not unfairly coercive under the circumstances. (Id. at pp. 651-652, 179 Cal.Rptr. 13.)
When he gave the jury instruction, the judge had the benefit of Gainer, supra, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, which is now the established law of this state and has been so for more than 25 years. He also had the benefit of decisions decided since that time that refer directly to Gainer, such as Inouye, supra, 126 Cal.App.3d 648, 179 Cal.Rptr. 13. To avoid error, the judge merely needed to give due respect to precedent by familiarizing himself with the very authority he cited (Inouye), a brief opinion consisting of approximately two and one-half pages and slightly more than 1,000 words.
Moreover, if the judge had been familiar with recent authority in this district, he would have found a model for how to instruct the jury following its initial deadlock. A little less than a year before these jury deliberations, this court decided People v. Moore (2002) 96 Cal.App.4th 1105, 117 Cal.Rptr.2d 715. In Moore, the jury was unable, initially, to reach a unanimous verdict on one of two counts, and the court further instructed the jury in an attempt to break the deadlock. (Id. at pp. 1118-1120, 117 Cal.Rptr.2d 715.) On appeal, this court quoted the trial judge's instruction at length and concluded it did not contravene Gainer and was not unfairly coercive. (Id. at pp. 1118-1121, 117 Cal.Rptr.2d 715.) This court concluded: "The trial judge did not err in giving the challenged instruction. Indeed, the trial judge (Judge Michael G. Virga) should be commended for fashioning such an excellent instruction." (Id. at p. 1122, 117 Cal.Rptr.2d 715.) The distinction between the judge's action here and Judge Virga's action in the earlier case requires no further comment. Suffice it to say, if the judge here had been aware of Judge Virga's instruction, available in a recently reported decision, the error would surely have been avoided.
Under the topic "Encouraging Verdict" in the California Judges Benchbook, available to every judge in California, the California Center for Judicial Education and Research (CJER) states: "In encouraging the jury to reach a verdict, the court may `advise jur[ors] of their proper role in a manner which may assist them in their deliberations,' but may not admonish minority jurors to consider numerical division *442 or preponderance of opinion, nor may it refer to the necessity or the expense and inconvenience of a retrial. People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, [566 P.2d 997]." (Cal. Judges Benchbook: Criminal Trials (CJER 1991) Jury Trials, § 3.27, p. 83.) The Continuing Education of the Bar (CEB) practice guide, Criminal Law Procedure and Practice, uses almost identical language in describing the judge's duties under the heading "Determining Whether Jurors Are Unable to Reach Verdict; Declaring Mistrial." (1 Criminal Law Procedure and Practice (Cont.Ed.Bar 7th ed.2004) § 33.26, pp. 921-922.)
Citing and quoting liberally from Gainer, the venerable Bernard Witkin and our esteemed colleague Justice Norman Epstein, in their treatise, California Criminal Law, devoted four pages to the topic of coercing minority jurors. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 38-39, pp. 59-63.) They noted: "The most questionable feature of the [Allen] instruction is the discriminatory admonition directed to minority jurors to rethink their position in light of the majority's views." (Id. at § 39, p. 61.)
The use note in the California Criminal Jury Instructions (CALJIC) guide states concisely under CALJIC No. 17.40 (Individual Opinion Required Duty to Deliberate): "After holding the Allen-type `dynamite' instruction improper, the Supreme Court recommended the continued use of this instruction. (People v. Gainer[, supra], 19 Cal.3d 835, 856, 139 Cal.Rptr. 861, 872, 566 P.2d 997, 1008 (1977).)" (Use Note to CALJIC No. 17.40 (Jan.2004 ed.) p. 1214.)
Abraham Lincoln wrote: "[You ask] `the best mode of obtaining a thorough knowledge of the law' is received. The mode is simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. . . . Work, work, work, is the main thing." (Lincoln, Letter to John M. Brockman, Sept. 25, 1860 in Collected Works of Abraham Lincoln (Basler edit., 1953) vol. 4, p. 121.) Since our 16th president's day, we have been given a plethora of aids to lighten the burden of determining what the law is on any given subject, yet this trial judge failed even to undertake the modest endeavor of consulting the most obvious sources. The life of a judge is not meant to be one of ease.
Because we conclude defendant's convictions must be reversed, we need not consider defendant's other contentions attacking the validity of the judgment. We note, however, that, because the revocation of probation was based on the tainted verdicts, we must also reverse the revocation.
DISPOSITION
The judgment (02F04337) and order revoking defendant's probation (97F08671) are reversed. These matters are remanded to the trial court for further proceedings consistent with this opinion.
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18 Cal.Rptr.3d 9 (2004)
121 Cal.App.4th 825
In re Jayson Wayne DIKES, on Habeas Corpus.
No. A104121.
Court of Appeal, First District, Division Four.
July 28, 2004.
As Modified August 17, 2004.
Review Denied November 17, 2004.[*]
*10 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Jennifer A. Neill, Pamela B. Hooley, Deputy Attorneys General, for Appellant State of California.
Matthew Zwerling, Executive Director, L. Richard Braucher, First District Appellate Project, under appointment by the Court of Appeal, for Respondent Jayson Wayne Dikes.
RIVERA, J.
After a prison disciplinary hearing, Jayson Wayne Dikes was found to have possessed a controlled substance in violation of prison regulations, based on a positive urinalysis test. He petitioned the superior court for a writ of habeas corpus, challenging the drug test as insufficient evidence to sustain a finding of possession. The court agreed and granted the petition, directing that the disciplinary finding be set aside and ordering the restoration of good time credits. The warden appeals, contending that the drug test satisfied the "some evidence" standard of proof required for prison disciplinary actions. We reverse and remand for further proceedings consistent with this opinion.
I. BACKGROUND AND PROCEDURAL HISTORY
Dikes was convicted November 14, 2001, for violations of Health and Safety Code *11 section 11379.6, subdivision (a) and Penal Code section 4573, both drug-related offenses, and sentenced to serve eight years in state prison. On April 28, 2002, while incarcerated at California State Prison, Solano, Dikes provided a urine sample to prison authorities as part of the prison substance abuse program's random drug testing policy. The sample tested positive for a controlled substance, THC (cannabinoids). Based on the positive test, the warden brought a disciplinary action against Dikes, charging him with possession of a controlled substance in violation of California Code of Regulations, title 15, section 3016, subdivision (a).[1] The possession charge was sustained and Dikes was assessed a 130-day credit loss. Dikes's administrative appeals were denied.
On November 25, 2002, Dikes filed a petition for writ of habeas corpus in Solano County Superior Court. The superior court granted the writ, concluding that a positive urinalysis test was insufficient evidence to sustain the disciplinary charges against Dikes and ordering reversal of Dikes's guilty finding. This timely appeal ensued.
II. DISCUSSION
A. Due Process and the "[S]ome [E]vidence" Standard
The Legislature has granted the Department of Corrections[2] broad authority for the discipline of inmates in state prisons (Pen.Code, § 5054), including the authorization to promulgate regulations governing discipline. (In re Scott (2003) 113 Cal.App.4th 38, 44, 5 Cal.Rptr.3d 887 (Scott).) A good time credit is a prospective benefit that depends on the inmate's sustained good behavior and is subject to review and withdrawal for cause by the disciplinary board. While the Department cannot interpret regulations arbitrarily or capriciously, it does not abuse its discretion when it has some basis in fact for its decision. (Ibid.) An administrative agency must be granted "broad discretion and not be `subject to second-guessing upon review.' [Citation.]" (In re Powell (1988) 45 Cal.3d 894, 904, 248 Cal.Rptr. 431, 755 P.2d 881.) A prison disciplinary action must be supported by "some evidence" (Superintendent v. Hill (1985) 472 U.S. 445, 447, 105 S.Ct. 2768, 86 L.Ed.2d 356 (Hill)); and on review, we must uphold any Department decision that is "supported by `"some evidence"'" (Scott, supra, 113 Cal.App.4th at p. 44, 5 Cal.Rptr.3d 887).
Due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest in good time credits. (Wolff v. McDonnell (1974) 418 U.S. 539, 556-557, 94 S.Ct. 2963, 41 L.Ed.2d 935.) In Wolff, the court held that before being stripped of good time credits, an inmate must receive certain minimum due process protections, including written notice of the claimed violation, an opportunity to be heard and to call witnesses unless doing so would jeopardize prison security, and a written statement detailing evidence relied on and reasons for the disciplinary action. (Id. at pp. 563-567, 94 S.Ct. 2963.) However, Wolff also acknowledged that the inmate's due process interest must be accommodated in the distinctive setting of a prison, where disciplinary *12 proceedings "take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so." (Id. at p. 561, 94 S.Ct. 2963.) Prison disciplinary proceedings are not part of a criminal prosecution, and the "full panoply of rights" due a defendant in such proceedings does not apply. (Id. at p. 556, 94 S.Ct. 2963.) As a result, the standard courts apply in reviewing disciplinary proceedings is lower than that applied in reviewing criminal convictions.
In Hill, supra, 472 U.S. at page 454, 105 S.Ct. 2768, the United States Supreme Court held that the requirements of due process in a prison disciplinary action are satisfied if "some evidence" supports the decision by the prison disciplinary board to revoke good time credits. In determining whether the evidentiary standard is satisfied, 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, 105 S.Ct. 2768.) The determination does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. (Id. at p. 455, 105 S.Ct. 2768.) Provided "the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary," due process does not require courts to set aside decisions of prison administrators. (Id. at p. 457, 105 S.Ct. 2768.) "Requiring a modicum of evidence to support a decision to revoke good time credits will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens." (Id. at p. 455, 105 S.Ct. 2768.)[3]
The Hill court resisted adopting a more stringent evidentiary standard as a constitutional requirement because prison disciplinary proceedings take place in a highly charged atmosphere, and it is often necessary for prison administrators to act promptly on the basis of evidence that might be insufficient in less taxing circumstances. (Hill, supra, 472 U.S. at p. 456, 105 S.Ct. 2768.) California cases have also applied this rule. (See In re Jackson (1987) 43 Cal.3d 501, 510, 233 Cal.Rptr. 911, 731 P.2d 36 ["disciplinary findings need not be supported by substantial evidence, but merely `some' or `any' evidence"]; see also Scott, supra, 113 Cal.App.4th at p. 44, 5 Cal.Rptr.3d 887; In re Estrada (1996) 47 Cal.App.4th 1688, 1695, 55 Cal.Rptr.2d 506.)
B. The Positive Drug Test as "[S]ome [E]vidence" of Possession
Dikes was found guilty of possession of a controlled substance, in violation of section 3016, subdivision (a), which prohibits inmates from introducing into their body, possessing, or having under their control any controlled substance, except as authorized by the facility's health care staff.
Dikes contends that the THC-positive urinalysis result, standing alone, is insufficient evidence to support the Department's finding that he possessed a *13 controlled substance.[4] He relies on People v. Spann (1986) 187 Cal.App.3d 400, 408, 232 Cal.Rptr. 31 (Spann), which held that "`possession [ ]' . . . does not mean `use' and mere evidence of use (or being under the influence) of a proscribed substance cannot circumstantially prove its `possession.'" The defendant in Spann was a jail inmate. A correctional officer observed him behaving in a manner consistent with being under the influence of an illicit substance, and ordered a blood sample to be drawn. The sample tested positive for Valium, a controlled substance. This evidence was used to prove Spann possessed the unauthorized narcotic in violation of Penal Code section 4573.6, and he was sentenced to state prison. (Spann, at p. 402, 232 Cal.Rptr. 31.) The Court of Appeal reversed on the ground that "mere evidence of use" of a proscribed substance cannot circumstantially prove its possession. (Id. at pp. 408-409, 232 Cal.Rptr. 31.)
The issue here is not whether evidence of a controlled substance in Dikes's urine is sufficient to support the burden of proof in a criminal conviction, but rather whether the THC in his urine sample is "some" or "any" evidence that he had possessed marijuana in violation of prison rules. (See Hill, supra, 472 U.S. at pp. 455-456, 105 S.Ct. 2768.)[5] Although evidence of drug use is not by itself sufficient to support a criminal conviction for possession, our Supreme Court has acknowledged that "evidence of being identifiably under the influence of a specific drug or other evidence of having introduced it into one's body tends to prove having knowingly, and hence unlawfully, possessed it." (People v. Morales (2001) 25 Cal.4th 34, 44, 104 Cal.Rptr.2d 582, 18 P.3d 11.) While it is possible to ingest a controlled substance without the knowledge, dominion and control necessary to sustain a criminal conviction (see People v. Palaschak (1995) 9 Cal.4th 1236, 1241, 40 Cal.Rptr.2d 722, 893 P.2d 717 (Palaschak)), we conclude the presence of THC in Dikes's body is some evidence to sustain the finding that he possessed it.
Dikes contends this result is inconsistent with the statutory and regulatory scheme. He points out that use and possession of controlled substances are treated differently by state law (see Health & Saf.Code, §§ 11550, 11377, subd. (a)),[6] and that the regulations of the Department likewise treat use and possession of controlled substances differently (see, e.g., § 3315, subd. (a)(3)(E), (3)(F).) Furthermore, section 3016 cites as authority the Health and Safety Code (§§ 11014.5, 11350-11383) and the Penal Code (§§ 5054, 5058, 2931, 4573, 4573.6). According to Dikes, these references, combined with the lack of a separate definition of "possess" in section 3016, *14 indicate that possession under section 3016 was never intended to carry a different connotation than that set forth in the criminal statutes, which require knowledge, dominion and control of the substance, and should therefore be treated no differently. (Palaschak, supra, 9 Cal.4th at p. 1242, 40 Cal.Rptr.2d 722, 893 P.2d 717.) Moreover, Dikes contends the Department's definition of possession is "so violently at odds with preexisting statutory and regulatory authority" that it results in a violation of due process by failing to put him on notice that a positive test for a controlled substance would be punished as possession.[7]
We find these arguments unpersuasive. The Department's regulations provide: "The test results from a urine sample submitted for testing for the presence of an unauthorized controlled substance that has been confirmed as positive by a laboratory may be considered as sufficient evidence to charge the user with having had possession of the controlled substance." (§ 3290, subd. (f).) This provision indicates to us both that the Department's regulations show an intent to discipline inmates for possession of controlled substances based on a positive drug test, and that inmates are on notice of this intention.[8]
Dikes takes the position that this regulation was intended to authorize prison officials to charge inmates with possession based on a positive test, but not to sustain the charge based on the same evidence. In our view, it is unlikely the regulations were intended to allow officials to bring charges based on evidence that was insufficient to sustain the charge. (See Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 29, 285 Cal.Rptr. 515 [regulations must be given reasonable and commonsense interpretation consistent with apparent purpose and intention of the agency].) Furthermore, an agency's interpretation of its own regulation is entitled to "great weight and deference," and will ordinarily not be disturbed unless it is "`"plainly erroneous or inconsistent with the regulation."'" (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 612-613, 52 Cal.Rptr.2d 846.) We cannot conclude that an interpretation of the Department's regulations that permits a finding of possession of a controlled substance based on a positive drug test is plainly erroneous or inconsistent with the Department's regulations.[9]
*15 Finally, Dikes contends that Penal Code section 2932 supports his position. He relies on the portion of the statute that provides: "(2) Not more than 180 days of credit may be denied or lost for a single act of misconduct, except as specified in paragraph (1), which could be prosecuted as a felony whether or not prosecution is undertaken. [¶] (3) Not more than 90 days of credit may be denied or lost for a single act of misconduct which could be prosecuted as a misdemeanor, whether or not prosecution is undertaken." (Pen. Code, § 2932, subd. (a).) This statute does not change our view that there was some evidence to support the finding that Dikes possessed a controlled substance in violation of prison regulations. However, it does implicate the issue of whether the discipline imposed for the violation was authorized.
Penal Code section 2932, subdivision (a)(4) provides: "Not more than 30 days of credit may be denied or lost for a single act of misconduct defined by regulation as a serious disciplinary offense by the Department of Corrections." Only if the act of misconduct can be prosecuted as a felony or a misdemeanor can the disciplinary action involve a loss of more than 30 days credit. (Pen.Code, § 2932, subd. (a)(2), (3).)[10] The Department now takes the position that Dikes's conduct could not be prosecuted criminally (see Health & Saf.Code, § 11550, subd. (a)), and so falls within the rule of Penal Code section 2932, subdivision (a)(4). Accepting this concession for purposes of this appeal, we conclude that the Department cannot impose a credit forfeiture of more than 30 days for the act of misconduct in question.
III. DISPOSITION
The order of the trial court is reversed.
We concur: REARDON, Acting P.J., and SEPULVEDA, J.
NOTES
[*] Brown, J., did not participate therein.
[1] All further undesignated references are to title 15 of the California Code of Regulations.
[2] The respondent below (and appellant here) was the warden, Tom L. Carey. Dikes's final administrative appeal was denied by the Inmate Appeals Branch of the California Department of Corrections. For the sake of convenience, we will refer to appellant here and the Department of Corrections collectively as the Department.
[3] The issue for the court in Hill was whether the findings of a prison disciplinary board that resulted in loss of good time credits must be supported by "some evidence." There, the board heard testimony and received a written report from a prison guard, stating he heard a loud voice, saw an inmate with injuries to the mouth and eye, and dirt strewn about; he then observed three inmates jogging away together, with no other inmates present in the area. (Hill, supra, 472 U.S. at pp. 447-448, 105 S.Ct. 2768.) The court upheld the assault charges against the inmates observed fleeing from the injured inmate, describing the evidence presented as "meager," but sufficient. (Id. at p. 457, 105 S.Ct. 2768.)
[4] Dikes argued below that the methods employed at the disciplinary hearing violated his constitutional due process rights. He does not argue on appeal that the trial court's ruling should be affirmed on those grounds; and accordingly, we do not consider the issue here.
[5] The Department has asked us to take judicial notice of a 1992 unpublished Department administrative bulletin. This document was apparently not submitted to the trial court, and the copy submitted to us was not authenticated. The bulletin discussed the "`some' evidence" standard in proving possession, and cited an unpublished case from the Fourth District Court of Appeal. We deny the request. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493, 495, 138 Cal.Rptr. 828 [Court of Appeal will not take judicial notice of documents not presented to and considered by the trial court, or documents not properly certified].)
[6] For example, use of a controlled substance is a misdemeanor (Health & Saf.Code, § 11550), while possession may be a felony (Health & Saf.Code, § 11350).
[7] Dikes shores up his due process claim by pointing out that the credit forfeiture schedule is vague in that it provides for different sanctions for possession (121 to 150 days) (§ 3323, subd. (d)(6)), versus refusing to provide a urine sample (61 to 90 days) (§ 3323, subd. (f)(1)), with no section specifying credit forfeiture for use. Dikes contends this scheme allows for absurd results, in that an inmate who knowingly used a controlled substance would simply refuse to provide a urine sample, since the consequences of a positive test meant he would be punished for the more serious violation of possession. We need not address this argument because the Department has agreed the credit loss should be no more than 30 days.
[8] Dikes concedes that he received a copy of the Rules and Regulations of the Director of Corrections (§ 3000 et seq.), as required by section 3002.
[9] The Department contends, additionally, that the regulation under which Dikes was charged also prohibits inmates from inhaling, ingesting, injecting or otherwise introducing any controlled substance into their bodies (§ 3016, subd. (a)), and thus there was ample evidence to support the Department's finding of a violation of that regulation. While this is accurate as far as it goes, it is clear from the record the Department made specific findings of "possession" as distinct from ingestion, the former being a more serious offense under the prison's disciplinary system. (§ 3323, subds.(d)(6) & (f)(1).)
[10] Even greater losses of credit can be imposed for acts specifically enumerated in Penal Code section 2932, subdivision (a)(1), none of which are charged here.
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421 A.2d 1350 (1980)
David E. PETERSON, Plaintiff, Appellant,
v.
Clifford E. HALL, Secretary of the Department of Highways and Transportation for the State of Delaware, Defendant, Appellee.
No. 261980.
Supreme Court of Delaware.
Submitted June 5, 1980.
Decided September 24, 1980.
*1352 Roy S. Shiels, Dover (argued), of Brown, Shiels & Barros, Dover, for plaintiff, appellant.
Mark A. McNulty, Deputy Atty. Gen. (argued), Dover, for defendant, appellee.
Harvey B. Rubenstein, Wilmington (argued), amicus curiae for Council 81, AFSCME.
Charles J. Durante, Deputy Atty. Gen., Dover, amicus curiae for State Personnel Commission.
Before McNEILLY, QUILLEN and HORSEY, JJ.
HORSEY, Justice:
David E. Peterson, a former employee of the Delaware Department of Highways and Transportation, appeals Superior Court's affirmance of the State Personnel Commission's ruling that he was properly discharged by the Department for failure to join Local 837 of the AFSCME[1] in violation of the Union's collective bargaining agreement with the Department.
In a prior appeal in this case, Peterson v. Hall, Del.Supr., 382 A.2d 1355 (1978), we held that the Commission had jurisdiction under 29 Del.C. § 5949(a) to hear Peterson's claim that he was dismissed without cause, even if his dismissal involved application of the terms of a union contract requiring union membership.
An Agreement between the Department and the Union required all covered employees of the Department to join the Union as a condition of continued employment. The Agreement defined "employee" to include various job classifications, including "all Highway Engineering Technicians." However, the Agreement then exempted from Union membership certain Department personnel, including "all employees having a professional classification or the equivalent of a Bachelor's Degree."
Peterson's job title with the Department was "Highway Engineering Technician." However, he claimed exemption under the Union contract-contending that he held the equivalency of a "Bachelor's in Technology" degree which he argued was synonymous with a "Bachelor's Degree" within the meaning of the contract exemption.
In remanding the case to the Personnel Commission, we stated:
"... the critical question in this case is whether Peterson is properly classified as a Technician, and as to this the Union contract is silent. In other words, the contract does not include any procedure for determining whether an employee should or should not be regarded as having the equivalent of a bachelor's degree. There is no dispute between the parties about the consequences of a proper classification of an employee. Thus, if Peterson is properly classified as a Highway Engineering Technician, then, under Article II, Section (b) of the Contract, he was in the bargaining unit and was obliged to join the Union or be dismissed. See Article II, Section 2(a) of the Contract and 29 Del.C. § 5949(c). But if Peterson is entitled to be regarded as holding the `equivalent of a Bachelor's Degree,' then under the specific language of the Contract he is excluded from the bargaining unit, see Article II, Section 1(c), and his dismissal for failure to join the Union was improper." (382 A.2d at 1358).
I
The Personnel Director's administrative procedures were not legally deficient because a subordinate of the Personnel Director originally determined appellant's lack of qualification for "equivalency" exemption. *1353 Under 29 Del.C. § 5911(3) and § 5912, the Personnel Director was authorized to appoint deputies and assistants to assist him in the administration of the merit system. In any event, the Personnel Director later and the Commission eventually reviewed and ratified the subordinate's determination of Peterson's lack of qualification for exemption.
II
After an evidentiary hearing, the Personnel Commission concluded that Peterson was properly classified as a "Highway Engineering Technician" and that he did not possess the "equivalent of a Bachelor's Degree."
The Commission interpreted the contract language to require an exempt employee to hold the equivalent of a Bachelor's Degree in his field of employment; and since Peterson's field of work with the Department was engineering, he was required to have the equivalent of a Bachelor of Science in Civil Engineering to be exempt from Union membership.
The Commission's interpretation of the contract language as to equivalency exemption is reasonable and supported by sufficient competent evidence and was not shown to be clearly wrong. Nationwide Mutual Insurance Company v. Krongold, Del.Supr., 318 A.2d 606 (1974); Connell v. Delaware Aircraft Industries, Inc., Del.Super., 55 A.2d 637 (1947).
There was also sufficient evidence to support the Commission's finding that Peterson's education, training and experience did not meet the equivalency exemption and that he was properly classified as a Highway Engineering Technician. In re Artesian Water Co., Del.Super., 189 A.2d 435 (1963). Hence, Peterson was a covered employee within the bargaining unit under the contract and required to join the Union or be dismissed. Peterson v. Hall, supra.
III
Peterson alternatively contends that he was not subject to discharge under the collective bargaining agreement because he had attained "permanent" employee status before enactment of 29 Del.C. § 5949(c). However, any merit employee under "permanent appointment," has always been subject to discharge "for cause" under 29 Del.C. § 5930 and § 5949(a)-a generalized, undefined term that requires flexible application. See Karchmar v. City of Worcester, Mass.Supr., 301 N.E.2d 570 (1973).
Further, the right of public employees to organize and enter into collective bargaining agreements with their employers[2] preceded the establishment of a merit system for State employees[3] and the attainment by Peterson of "permanent status".[4] Hence, we think it matters not that 29 Del.C. § 5949(c) was enacted[5] one month after appellant achieved permanent employee status. What is significant is the purpose of the legislation, namely, to "resolve any potentially unharmonious or inconsistent areas" in the functioning of the two laws. And § 5949(c) expresses clear legislative intent that the terms of a collective bargaining agreement take precedence in any conflict with the provisions of § 5949(a) or (b). State v. American Federation of State, County and Municipal Employees, AFL-CIO 1726, Del.Ch., 298 A.2d 362 (1972).
We also find no merit in appellant's related argument that Peterson had acquired, through "permanent appointment" merit status, a vested right to continued employment which was constitutionally protected. Property interests in public employment in a state are created by statute or contract, not by the Constitution, and claims of entitlement thereunder are determined by reference to State law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 *1354 L.Ed.2d 684 (1976); Karchmar v. City of Worcester, supra. The law in this State is clear,
"... termination of employment as a result of a refusal to abide by the terms of a union contract requiring employees to join a bona fide labor organization on reasonable terms amounts to a voluntary quitting without good cause ...." State Department of Labor v. Unemployment Insurance Appeal Board, Del.Super., 297 A.2d 412, 415.
IV
We decline to consider appellant's final contention-only touched on-that forced union membership is a violation of First Amendment Rights under the Federal Constitution. The question was not properly raised and fairly presented to the Trial Court or fully briefed below. Supreme Court Rule 8.
The Personnel Commission and the Superior Court did not err in applying 29 Del.C. § 5949(c) to appellant and in holding that Peterson, being a non-exempt employee, was subject to discharge for cause for failure to join the Union.
AFFIRMED.
NOTES
[1] American Federation of State, County and Municipal Employees.
[2] 55 Del. Laws, Ch. 126, effective June 15, 1965.
[3] 55 Del. Laws, Ch. 443, effective July 1, 1966.
[4] June 1, 1968.
[5] 56 Del. Laws, Ch. 376, effective July 1, 1968.
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777 F.Supp. 1533 (1991)
NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,
v.
C. Dale DUVALL, as Commissioner of the Bureau of Reclamation, United States Department of the Interior, et al., Defendants.
Central Valley Project Water Association, et al., Intervenors.
No. Civ. S-88-375 LKK.
United States District Court, E.D. California.
July 26, 1991.
*1534 Hamilton Candee, San Francisco, Cal., for plaintiffs.
Kenneth A. Kuney, Tulare, Cal., Paul Scott Simmons, Stewart Leslie Somach, Sacramento, Cal., and Thomas Humphrey, for intervenors.
ORDER
KARLTON, District Judge.
Before the court is the plaintiffs' motion for summary judgment.[1] Plaintiffs' suit attacks the adoption of regulations implementing the Reclamation Reform Act ("RRA") on the grounds that prior to adoption the Bureau of Reclamation was required to perform an Environmental Impact Study ("EIS") pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. For the reasons I explain below, the motion is granted.
*1535 I
THE RECLAMATION ACTS
In 1902, Congress adopted the first Reclamation Act. Its purpose was to "encourage family farming on modest sized parcels and to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands." Barcellos & Wolfson, Inc. v. Westlands Water Dist., 899 F.2d 814, 824 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990). The Act was designed to limit private speculative gains resulting from the existence of reclamation projects, see United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1119 (9th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1156, 51 L.Ed.2d 571 (1977), which ultimately provided irrigation water to farmers throughout the 17 western states at prices substantially below cost. To ensure family-sized farming and prevent private speculation, the original Act limited the delivery of water to farms no greater than 160 acres in size[2] actually occupied by the farmer.[3]
Congress' intent to limit the benefits of the Reclamation Act to small family farms was frustrated by the executive branch. "As the program has been administered by the Department of the Interior ... the vast federal subsidy has been flowing to many farming operations which in no way resemble the small, family-owned farms envisioned by the enacting Congress." Peterson v. U.S. Dept. of the Interior, 899 F.2d 799, 804 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 567, 112 L.Ed.2d 574 (1990). Instead, through leasing arrangements and other devices, the water districts and large farming interests, with the acquiescence of the Department, "found ways to circumvent the 160-acre limitation," id., resulting in the enormous federal subsidies involved in supplying reclamation water being provided to very large farming operations. Id. at 805.
In 1982, Congress again addressed the question of the appropriate recipients of federal water subsidies. "With the RRA, Congress redefined completely who could receive subsidized reclamation water and the price they would pay." Id. at 806. The 160-acre limitation "was discarded as incompatible with modern farming techniques. In its place, Congress authorized the sale of project water at the new, though still subsidized, rates to `qualified recipients' for land holdings up to 960 acres and to `limited recipients' for land holdings up to 320 acres." Id.; and see 43 U.S.C. § 390ee(a).
The RRA is divided into discretionary and mandatory provisions.[4] The discretionary provisions concern the increased acreage limitations, § 390dd, the equivalency provisions, § 390gg, the operation and maintenance charge provisions, § 390hh, and provisions pertaining to certification of compliance, § 390ff. The Act contains a "hammer clause," 43 U.S.C. § 390cc, which provides that any water district that does not conform its contracts to comport with the discretionary provisions of the RRA by April 12, 1987, must pay full costs for water delivered to land holdings in excess of 160 acres. Thus, "[a]lthough the Act does not bar the Department of Interior from providing water altogether to qualified recipients for use on leased lands that exceed the 960-acre limitation, the recipients are required to pay the `full cost' for any such water." Peterson, 899 F.2d at 806.
II
THE REGULATIONS AND NEPA
A. The Adoption of the Regulations
The RRA provides that "[t]he Secretary may prescribe regulations and shall collect all data necessary to carry out the provisions *1536 of [the] ... Federal reclamation law." 43 U.S.C. § 390ww(c). On two occasions, the Bureau of Reclamation has promulgated regulations to implement the RRA. The first set of regulations were issued on December 6, 1983. An Environmental Assessment ("EA") with a finding of no significant impact ("FONSI") was issued for this set of regulations in 1983. The second set of regulations was issued on April 13, 1987, the date the hammer clause went into effect. A second EA, which again resulted in a FONSI, issued in 1987. In 1988, the 1987 rules were revised[5] and the 1987 EA and FONSI were supplemented.[6] It is the second and third set of regulations which are challenged in this lawsuit.[7]
The 1987 regulations, covering a wide variety of matters, were issued in compliance with the notice and comment requirements of 5 U.S.C. § 553. Among other things, the regulations set the price of water and, where the Secretary is given discretion, the amount for recovery of capital costs; define the term "lease;" determine whether trusts are subject to the acreage limitation provisions; determine whether non-resident aliens can indirectly receive subsidized water; and prescribe the procedures by which water users will comply with both the certification, reporting and water conservation provisions of the RRA.
Plaintiffs assert that the FONSI relating to the adoption of the rules implementing the RRA was unjustified and that the Bureau was required to do an Environmental Impact Statement ("EIS") under the NEPA, 42 U.S.C. §§ 4321 et seq.
NEPA requires that all agencies of the federal government prepare an EIS for inclusion "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). Under the pertinent administrative regulations, "major Federal action" includes "new or revised agency rules, regulations, plans, policies or procedures." 40 C.F.R. § 1508.18(a). The Bureau conceded in the 1987 FONSI that the challenged rules are "a major federal action pursuant to CEQ [Council of Environmental Quality] regulations," FONSI at 2[8], and no party contests that finding. Accordingly, adoption of these regulations requires preparation of an EIS if their adoption may significantly affect the quality of the human environment.
B. Standard of Review
Because NEPA is essentially a procedural statute, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), review of agency action is governed by section 706(2)(D) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D). Accordingly, the agency action at bar may be set aside if undertaken "without observance of procedure required by law." Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988); see also People ex rel. Van De Kamp v. Marsh, 687 F.Supp. 495, 498 (N.D.Cal.1988).[9] The Ninth Circuit has *1537 held that in determining whether or not an EIS must be prepared, the applicable standard is one of "reasonableness." Foundation for North Am. Wild Sheep v. United States, 681 F.2d 1172, 1177 n. 24 (9th Cir. 1982).
Intervenors and defendants, relying upon Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), argue that the arbitrary and capricious standard applies. Defendants claim that the present litigation primarily involves issues of fact, and that under Marsh, the court applies the arbitrary and capricious standard of review to resolve any dispute under NEPA involving such issues. While they acknowledge that Marsh dealt with the standard of review relative to a decision not to supplement an EIS, they argue that there is no reason to apply a different standard of review in the instant case. I cannot agree.
I begin by noting that the Ninth Circuit has had an opportunity to consider the Marsh decision and has not indicated any intent to give Marsh the expansive reading intervenors suggest. Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1422 n. 3 (9th Cir.1989). Moreover, Marsh simply cannot be read to imply that all environmental review should be governed by an arbitrary and capricious standard. Indeed, the Marsh Court limited its holding to the "narrow question" of what standard governs review of a decision not to supplement an EIS. Marsh, 490 U.S. at 376, 109 S.Ct. at 1860. Finally, as a matter of proper statutory implementation, Marsh ought not be read to compel a single standard. Various questions under NEPA implicate different statutory concerns and the standard appropriate for resolution of one issue is not necessarily appropriate for the other. Given the different statutory concerns, a distinction should exist between review of the adequacy of an EIS and review of a FONSI determination. In the first case, a full blown environmental review has occurred, and the question is its adequacy; in the later, no further environmental assessment will be undertaken. An inappropriate FONSI frustrates, at the initiation of the deliberative process, the statutory purpose of insuring that the agency take a "hard look" at the environmental consequences of its action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976).
The Circuit has observed "the spirit of [NEPA] would die aborning if the facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review." Foundation for North Am. Wild Sheep, 681 F.2d at 1182-83, citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir.1973). Consistent with this view, the Circuit has established a relatively low threshold for preparation of an EIS. In Save the Yaak Committee, 840 F.2d at 717, the court explained that in reviewing an agency's decision not to prepare an EIS pursuant to NEPA, the inquiry is whether the responsible agency has reasonably concluded that the project will have no significant adverse environmental consequences. Id., citing San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980). "[I]f substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable." Save the Yaak Committee, 840 F.2d at 717, quoting Foundation for North Am. Wild Sheep, 681 F.2d at 1178. An agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to "supply a convincing statement of reasons why the potential effects are insignificant." Save the Yaak Committee, 840 F.2d at 717, quoting The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir.1985). As the court explained, "the statement of reasons is crucial" to determining wheth the agency took a "hard look" at the potential environmental impact of a project. Save the Yaak Committee, 840 F.2d at 717, quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). Finally, the Ninth Circuit held that "we will defer to an agency's decision only when it is `fully informed and well considered.'" Save the Yaak Committee, 840 *1538 F.2d at 717, quoting Jones v. Gordon, 792 F.2d 821, 828 (9th Cir.1986).
III
THE 1987 EA
A. Incorporation of the 1981 DEIS and 1983 EA
Before turning to plaintiffs' attack on the EA, I must establish what materials may be examined in its support. In that regard, it is fundamental that the environmental document at issue and the material incorporated therein are the sole permissible source of justification for an agency's conclusions. See generally, LaFlamme v. FERC, 852 F.2d 389, 399 (9th Cir.1988); see also Foundation for North Am. Wild Sheep, 681 F.2d 1172. As I have previously observed, "[w]hile those attacking the administrative determination explained in the EIS are by necessity not ordinarily bound by the administrative record," Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 612 (9th Cir. 1981) (Karlton, J., dissenting), citing generally, Asarco, 616 F.2d at 1153, generally justification for the agency's decision "is limited to the four corners of the environmental statement itself, since it is the administrative record for purposes of review." California v. Bergland, 483 F.Supp. 465, 488 (E.D.Cal.1980), aff'd in part, rev'd in part, California v. Block, 690 F.2d 753 (9th Cir.1982).
Defendants assert that both the 1981 DEIS and the 1983 EA were incorporated by reference into the 1987 Environmental Assessment.[10] It is true that the EA contains some reference to a study conducted in connection with the 1981 regulations.[11] The question is whether an EA may incorporate by reference and, if so, under what standards.[12]
I begin by noting that there is no apparent reason to believe that an incorporation process is appropriate relative to an EA. Thus although the CEQ regulations permit, under stringent standards discussed below, incorporation by reference in an EIS, 40 C.F.R. § 1502.21, no such provision is made for an EA. On the contrary, the regulations appear to contemplate that an EA will be a concise public document which briefly presents sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI. 40 C.F.R. § 1508.9. Given the purpose of an EA, such restriction on the document does not appear unreasonable. As I explained above, the threshold for requiring an EIS is quite low. Thus only in those obvious circumstances where no effect on the environment is possible, will an EA be sufficient for the environmental review required under NEPA. Under such circumstances, the conclusion reached must be close to self-evident and would not require an extended document incorporating other studies. Moreover, because the purpose of an EA is to decide whether an EIS must be prepared, 40 C.F.R. § 1501.4(a), (b), (c); Jones v. Gordon, *1539 792 F.2d 821, 827 (9th Cir.1986), the document itself (and any attachments or appendices included with it) must facilitate or enable public comment concerning the agency's determination that the project does not significantly affect the environment. Cf. Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1193 (9th Cir.1988).
Moreover, even if an EA need not stand on its own, the standards applicable to the incorporation of material into a document created in response to the regulations implementing NEPA are relatively rigid. Application of those standards to the instant EA demonstrates that neither the 1981 DEIS nor the 1983 EA were properly made a part of the determination at bar.
As I have previously explained, under certain circumstances the law permits incorporation of materials by reference into an EIS.[13] The propriety of such incorporation is dependent upon meeting three standards: 1) the material is reasonably available; 2) the statement is understandable without undue cross reference; and 3) the incorporation by reference meets a general standard of reasonableness. See California v. Bergland, 483 F.Supp. at 485 (incorporation of material into a DEIS), aff'd in relevant part, California v. Block, 690 F.2d at 765. Application of the three criteria noted above suggests that the court must find that the 1981 DEIS and the 1983 EA were not incorporated into the 1987 EA.[14]
I begin by noting that there is an absence of record evidence concerning public availability of the assertedly incorporated material. Second, while the EA's conclusion is understandable without reference to the incorporated material, to the extent the 1987 EA is dependent for its justification on the findings in the DEIS and the 1983 EA, undue cross-reference is required because the previous findings are referred to in the 1987 document in only the briefest and most cursory manner. Finally, incorporation fails the test of general reasonableness. While the 1987 EA adverts to the Westlands study conducted in conjunction with the 1981 EA, it neither details the study nor even explicitly asserts incorporation. Finally, the 1987 EA is completely silent as to the 1983 EA. I conclude that the 1981 DEIS and 1983 EA have not been incorporated into the 1987 EA. Accordingly, the only justification for the conclusion that the regulation would have no significant impact is to be found within the language of the 33 pages of the 1987 EA and any material properly incorporated therein. I find that document utterly fails the most deferential test of reasonableness. Below, I sketch some of the EA's more serious deficiencies.
B. Rational Utility Maximizer
Underlying the Finding of No Significant Impact is the Bureau's assumption that the farmers subject to the Reclamation Reform Act will act as "rational utility maximizers." By this the FONSI means "individuals and legal entities affected by changes in acreage limitation will always act in their own best economic interest." EA at 16. By virtue of this assumption, the FONSI concludes that farmers will not want to pay full cost if they can legally avoid doing so and thus will become subject to the hammer clause so as to obtain the higher acreage limitation. It also concludes that where farmers are unable to obtain subsidized water they will switch to groundwater, but any increase in groundwater use by those subject to full cost will be offset by a decrease in groundwater use *1540 by those farmers who "took over" the surface supply declined by others. It is this court's view that the notion of a "rational utility maximizer" is an economic construct having no counterpart in the real world and is thus an inappropriate basis for the determinations which were made.
Ordinarily, the questions posed by a NEPA inquiry ask various scientific disciplines to consider what effect a given course of conduct will have on specific aspects of the environment.[15] In the EA at issue, however, the Bureau thought it necessary to predict the reaction of those affected by the hammer clause as a condition precedent to an assessment of the environmental consequences of the agency's action in adopting the regulations. The government chose to address this question by treating it as a theoretical economic issue, ignoring actual agricultural and economic conditions, much less historical, psychological, sociological and family considerations which might bear on individual farmers' reactions. This hardly inevitable Marxist-like exclusive focus on economic theory, itself a violation of the regulations, see footnote 15, is unexplained. What is inevitable, however, is that reliance on an economic construct will lead to false conclusions about the real world.
Even if it is conceded that it is not unreasonable to believe that those affected by the hammer clause will frequently act in what they believe to be their own best economic interests, rather than from other motives, such an assumption has little predictive value. To be able to predict conduct from such an assumption requires reliance on a series of other assumptions, none of which can be adopted with confidence. Thus to draw predictive conclusions, it is necessary to believe that all farmers are in possession of all the relevant economic data, will be able to evaluate the data correctly, and that the best interest can be determined at an abstract level without consideration of the particular circumstances of each farmer. The fact that particular economic circumstances will bear on any given farmer's decision and that in any event evaluations of the best economic interest differ, should hardly surprise anyone. In sum, even assuming that the government's scenario were the most likely, a matter itself far from self-evident, it simply cannot bear the weight accorded it. A conclusion that the consequences of adoption of the regulations are uncertain points to the need for an EIS in order to study all the potential consequences of their adoption. Put another way, given that the government's premise is insupportable either as a matter of verifiable fact or as a matter of logic, the FONSI based on the premise is unreasonable. As I explain below, the FONSI suffers from a variety of other deficiencies.
C. Ground Water and Surface Water Uses
The plaintiffs attack the EA as failing to recognize the effect the regulations will have on both ground and surface water use. The EA recognizes that concerns were expressed regarding the effect acreage limitation rules would have on large farming operations. Nonetheless, the EA's analysis of the final rules suggests that the large farm operations would have options available to avoid adverse impact. The EA asserts that "despite the foregoing analysis, some large operations could conceivably choose to refuse federal project water in order to escape the full cost provisions of law; but, if they did, other operations in the same district would unquestionably make use of this project water, thereby reducing their own ground water usage." EA at 32. The EA concludes that the total amount of both types of water used would not be affected.
The reasonableness of the EA's conclusion is, to say the least, in doubt. The presumption that farming operations which had to switch to ground water would use the same amount as when they were able to use subsidized surface water is wholly unsupported and appears insupportable. *1541 Indeed, if use of ground water costs no more than surface water, the entire subsidization process of the Reclamation Act would be unnecessary. More to the point, inasmuch as the EA has failed to analyze the various costs, its conclusion is not supported within the four corners of the EA. If, as appears likely, the cost of ground water is greater than the cost of surface water, farmers are as likely to switch to crops that use less water, or convert to dry land farming as switch to ground water. Moreover, the presumption of the EA that the change in ground water/surface water would be balanced seems equally dubious.
The EA presumes that a farmer wanting to convert to ground water use can do so with relative ease. That presumption flies in the face of the available evidence. Wells relatively short distances apart can yield dramatically different amounts of water. See Charles E. Corker, "Ground Water Law, Management and Administration," National Water Commission, at 47 (hereinafter "NWC"). If there are several wells in the same area rapidly drawing down the water table, interference between the wells can result and the pump will start sucking air. Id. at 47, and see p. 95. Although surface and ground water are often considered as separate systems, they are actually an integrated system because the surface water feeds the ground water and vice versa. Changes made in one part of the system inevitably effect other parts of the system. NWC at 53. Surface waters are sometimes imported for irrigation (i.e., not part of the natural flow of the streams) and may contribute through seepage and return flows a large quantity of non-native waters to the underground aquifer. NWC at 58. Depending upon the permeability of the soil, using less surface water in one area may change the amount by which the underground aquifer is recharged. Furthermore, overdrafted basins are becoming a serious problem in the West. See, generally, Anne J. Schneider, "Ground Water Rights in California," Governor's Commission to review California water rights law (1977). Overdrafted basins can seriously compound already existing well interference problems. If the overdraft becomes serious enough, ground water might become so expensive to pump that ground water would effectively become unavailable. None of these considerations are addressed in the 1987 EA.
Other problems associated with the use of ground water also are not addressed in the 1987 EA. Subsidence can be a major problem, causing damage to surface structures and irrigation works. NWC at 84. Ground water withdrawal in one area may not cause these problems, but when the farmers in an area switch, as suggested by the EA, these problems could appear because of a difference in soil composition in the new withdrawal area. Another problem not discussed in the EA is salt build-up. In areas of heavy ground water usage, salinity build-up is a great problem. See NWC at 88. Surface water must be used in conjunction with ground water, otherwise the soil will become toxic to plant life. Id.
Finally, given its narrow regional approach, the study which forms the basis of the EA's conclusion appears inadequate. The EA bases its conclusion in large part on the Westlands case study. This California case study, however, does not necessarily reflect the legal and practical conditions in other western states. California has a hodgepodge of ground water management districts under no central control. Many of the other western states, however, designate critical areas which may be closed to further appropriation, see Kan.Stat.Ann. §§ 82a-1020 to 82a-1035; Mont.Code Ann. § 85-2-506; Nev.Rev.Stat. §§ 534.010 to 534.340; N.M.Stat.Ann. § 72-12-20; Ore. Rev.Stat. § 537.730, or administer ground water under central state authority. See Colo.Rev.Stat. §§ 37-90-102 et seq., Ariz. Rev.Stat. §§ 45-401 et seq. Thus presumptions about whether irrigators could easily switch to ground water in California are not necessarily applicable to other states.
In sum, I conclude that the central assumptions supporting the EA, leading to the central conclusion that application of the hammer clause will have no significant effect upon the use of water, appear unreasonable. Accordingly, an EIS is required.
*1542 D. Water Conservation
Plaintiffs contend that the agency was required to consider an alternative that might provide greater environmental benefit through encouraging water conservation. Under the CEQ regulations, an EA must "include a brief discussion of alternatives as required by [NEPA]." 40 C.F.R. § 1508.9(b). Those regulations are entitled to "substantial deference," California v. Block, 690 F.2d 753, 763. Under plaintiffs' theory, the agency is required to determine the significance of beneficial environmental effects that might result from an alternative regulatory program. See 40 C.F.R. § 1508.27(b)(1) (a significant effect may exist even if on balance a federal agency believes the effect will be beneficial).
Under the statute, the Secretary is required to consider "prudent and responsible water conservation measures in the operation of non-federal recipients of irrigation water from federal reclamation projects, where such measures are shown to be economically feasible for such non-federal recipients." 43 U.S.C. § 390jj(a). The statute also requires that each district develop a water conservation plan.
While the EA examines the economic effects of the four alternatives considered, there is no discussion of the effect of water conservation. In light of the express statutory language, the absence of such an alternative appears to be inconsistent with the Secretary's duty.
E. Land Use and Cropping Patterns
Underlying the EA analysis that there will be no environmental effect from the implementation of the hammer clause is the EA's expectation that no land will go out of production. EA at 32. By virtue of this conclusion, the 1987 EA contains no discussion of the environmental effects of the reorganization of large farms into smaller units or the retirement of marginal lands as a result of the full cost provisions of the RRA. Defendants and intervenors seek to support the conclusion of continued land use at the same level by pointing to evidence in the Administrative Record. As noted above, however, the FONSI must be justified by the EA and the materials incorporated therein. Moreover, given a report commissioned by the agency, the Moore report, it is hardly certain that no change in land pattern use will occur. Because there is reasonable doubt, analysis of alternatives is required.
IV
CONCLUSION AND ORDER
The court has concluded that summary judgment is appropriate on plaintiffs' NEPA cause of action. The question of the appropriate remedy pending completion of an EIS and promulgation of new regulations remains.[16] When raised at oral argument, all parties requested an opportunity for further briefing on this issue. The parties are therefore directed to address the following issues:
(1) What will be the effect of setting aside the current regulations pending completion of an EIS and promulgation of new regulations in compliance with the Bureau's NEPA obligations;
(2) Should the government maintain the operation of the current regulations in the interim;
(3) What plan is appropriate to ensure the Bureau's compliance with NEPA and promulgation of new regulations on a timely basis?
Plaintiffs shall file their proposed remedies and any points and authorities in support thereof within thirty (30) days of the *1543 effective date of this order; defendants and intervenors are granted thirty (30) days thereafter to reply; and plaintiffs may file a closing memorandum fifteen (15) days thereafter. The court will set a hearing on the remedy if it believes such a hearing will be useful.
IT IS SO ORDERED.
NOTES
[1] Also pending before the court is the motion of the intervenors seeking to strike material tendered to the court in support of the motion for summary judgment. Because the relevant evidence concerning the adoption of the regulations appears not to be in dispute, I believe that this disposition renders that motion moot. To the extent the motion is still vital, it is denied. Evidence tendered to demonstrate standing should not be stricken on the basis that it is de hors the administrative record, since such an objection is simply irrelevant. Material de hors the record tendered to demonstrate that the agency failed to adequately consider all factors is also admissible. Asarco, Inc. v. U.S. E.P.A., 616 F.2d 1153, 1160 (9th Cir.1980); Love v. Thomas, 858 F.2d 1347, 1356, (9th Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989).
[2] "No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one land owner." 43 U.S.C. § 431.
[3] Delivery was restricted to "an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land." 43 U.S.C. § 431.
[4] The provisions of the RRA to which all receivers of federal water are subject are contained in sections 390ii-zz.
[5] The Bureau on December 16, 1988, issued a limited number of supplemental rules to implement the 1987 amendments to the RRA. 53 Fed.Reg. 50,530 (as codified in 43 C.F.R. §§ 426 et seq.) (1988).
[6] Because the supplemental EA and FONSI are based on the 1987 EA, their validity depends on the 1987 EA.
[7] Intervenors contend that plaintiffs are barred by laches in bringing this challenge. This action was filed within eleven months after promulgation of the regulations at issue. Plaintiffs' response to the laches charge demonstrates that intervenors' argument borders on the frivolous.
[8] The FONSI notes several changes from the 1983 rules that have impact on landowners or lessees. They include criteria to distinguish between lessees and custom farmers, trust land attribution, non-resident alien eligibility through legal entities, water transfer criteria, deed covenant applications with respect to involuntary acquisitions, leasing of lands by religious and charitable organizations, calculations of non-full cost entitlement, commingling criteria, the appropriate rate for water delivery to lands under extended recordable contracts, and certification and reporting requirements. 1987 EA at 6-7.
[9] The statute provides in part: "The reviewing court shall (2) hold unlawful and set aside agency action, findings and conclusions found to be (A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; ... (D) without observance of procedure required by law...." 5 U.S.C. § 706.
[10] Although the 1981 DEIS and the 1983 EA have each been made a part of the administrative record in this case, it does not follow that they are part of, or incorporated into the 1987 EA. LaFlamme v. FERC, 852 F.2d 389, 399 (9th Cir.1988).
[11] The relevant language of the EA reads: "The Westlands case study, appendix F, of the 1981 draft environmental impact statement for acreage limitation, examined these and other potential sources of impact to the natural environment related to the implementation of acreage limitation provisions on the WWD. The study of the natural environment on Westlands concluded that the impacts resulting from acreage limitations were of a very minor nature. Our reexamination of the 1981 Westlands studies indicates that its conclusions concerning the natural environment are generally applicable to the current proposed rules on WWD will be insignificant. Because the WWD would be one of the areas most highly impacted by this rulemaking, it follows that the impacts to the natural environment resulting from the rulemaking in other areas should be even less significant." 1987 EA at 32.
[12] The 1987 FONSI is a two-page document to which the 1987 EA is attached. Pursuant to CFR regulations, the Bureau properly incorporated the environmental assessment. See 40 C.F.R. § 1508.13. I note that the regulations provide only for incorporation of an EA in a FONSI. Because the FONSI depends on the EA for its analysis of no environmental impact, its justification must be found in the 1987 EA.
[13] While the discussion of incorporation by reference in the text is premised on the regulations governing an EIS, they appear to this court to be applicable by analogy to incorporation into an EA, assuming that such incorporation is permissible at all. See 40 C.F.R. § 1508.9 (no discussion of incorporation by reference). Although intended to be brief and to demonstrate a relatively self-evident proposition, the EA has the same purpose as an EIS, namely demonstrating the environmental consequences of a particular governmental action.
[14] The issue of whether material was incorporated involves questions of both law and fact. Since the proponent of an issue ordinarily bears the burden of persuasion, Federal Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 262 (E.D.Cal.1987), it would appear that the government bears the burden of persuasion on the issue.
[15] The regulations require that the agencies "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences ... in decisionmaking." 40 C.F.R. § 1501.2(a).
[16] Plaintiffs seek declaratory relief as well as injunctive relief. Because of the court's disposition of the NEPA claim, the claim predicated on violation of the APA will not be addressed here. Although NEPA is essentially a procedural statute, see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. at 558, 98 S.Ct. at 1219; Strycher's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980), and does not necessarily compel substantive results, at this juncture it is unclear what formulation the newly promulgated regulations will take after completion of an EIS. This court has no power to render advisory opinions, see Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). Accordingly, I cannot decide claims based on a hypothetical set of regulations.
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280 Pa. Superior Ct. 522 (1980)
421 A.2d 845
COMMONWEALTH of Pennsylvania
v.
Herbert JACKSON, Appellant.
Superior Court of Pennsylvania.
Submitted April 16, 1980.
Filed September 19, 1980.
*523 *524 John H. Corbett, Jr., Assistant Public Defender, Pittsburgh, for appellee.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Before SPAETH, WICKERSHAM and LIPEZ, JJ.
SPAETH, Judge:
This is an appeal from a judgment of sentence imposed after a jury convicted appellant of attempt[1] and possession of an instrument of crime,[2] and the lower court convicted him of the summary offense of criminal mischief.[3] Appellant argues 1) that he was improperly convicted of both attempt and possession of an instrument of crime; 2) that the lower court should have instructed the jury on criminal mischief because under the facts of this case it was a lesser offense included in the greater offense of attempt; and 3) that if we conclude that this second argument has been waived because not properly raised before the lower court, we should remand the case to the lower court to determine whether trial counsel was ineffective.
The Commonwealth properly concedes the correctness of appellant's first argument. Appellant was convicted of attempted burglary and possession of an instrument of crime because he tried to break into a restaurant by banging *525 on the door with a hammer.[4] Section 906 of the Crimes Code[5] states that a defendant should not be convicted of more than one inchoate crime for conduct designed to end in the same ultimate crime. Accordingly, appellant should not have been sentenced for both attempt and possession of an instrument of crime, but only for one or the other. We shall therefore vacate the judgments of sentence for attempt and possession of an instrument of crime and remand the case to the lower court so that it may resentence appellant for either attempt or possession of an instrument of crime. Commonwealth v. Jackson, 261 Pa.Super. 355, 396 A.2d 436 (1978); Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978).
It is clear that appellant's trial counsel waived appellant's second argument.[6] We must therefore remand *526 this case to the lower court for the appointment of new counsel and a hearing on appellant's ineffectiveness claim. Appellant's present counsel is from the same office as his trial counsel, the Pittsburgh Public Defender's office. In Commonwealth v. Boyer, 277 Pa.Super. 82, 419 A.2d 671 (1980), we stated:
When an appellant raising the ineffectiveness of trial counsel is represented by appointed counsel from the same office that represented him at trial, the proper procedure is to remand for the appointment of new counsel not associated with trial counsel. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Crowther, 241 Pa.Super. 446, 361 A.2d 861 (1976) (SPAETH, J. concurring opinion). Appellant may, however, choose to retain his counsel provided he is made aware of the dangers and possible disadvantages of proceeding with counsel whom he asserts is ineffective. Therefore, on remand, the court should inform appellant of the facts necessary to ensure that his decision is an intelligent one, voluntarily made. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Roach, 268 Pa.Super. 340, 408 A.2d 495 (1979).
Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. Upon entry of new judgment or order granting a new trial, as the case may be, either party may file a new appeal, as provided by law.
NOTES
[1] 18 Pa.C.S.A. § 901 (Purdon's 1973).
[2] 18 Pa.C.S.A. § 907 (Purdon's 1973).
[3] 18 Pa.C.S.A. § 3304 (Purdon's 1973).
[4] In Commonwealth v. Rios, 246 Pa.Super. 479, 371 A.2d 937 (1977), this court held that a hammer used in an assault was not an instrument of crime because it was "not reshaped or specially constructed to inflict bodily injury," nor was it "so commonly used in the commission of crimes, that the legislature intended to prohibit [its] possession." Thus appellant might have argued below and before us that the evidence of his possession of a hammer was insufficient to support his conviction for possession of an instrument of crime. However, since appellant did not so argue, he may be resentenced either for possession of an instrument of crime or attempt, depending on what the lower court decides.
It may be noted parenthetically that while a sufficiency of the evidence claim will be held waived if it was not properly raised in the lower court, this is not so of a Section 906 claim, because an improper conviction of two inchoate crimes renders the resulting sentence illegal. Thus, the Commonwealth concedes that appellant's failure to raise his Section 906 claim in the lower court does not preclude his raising the claim before us.
[5] 18 Pa.C.S.A. § 906 (Purdon's 1973).
[6] After the court charged the jury, it asked counsel whether there were any additions to the charge that should be made. Appellant's trial counsel stated that he "had nothing." N.T. 102 (February 14, 1979). He made no mention of appellant's present claim that the court should have charged the jury on criminal mischief. Nor did appellant's trial counsel make that claim in his post-verdict motions or argument. Because appellant's counsel failed to raise the jury charge issue either at trial or on post-verdict motions, we cannot consider it now. Commonwealth v. Blair, 460 Pa. 231, 332 A.2d 441 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
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120 N.H. 652 (1980)
THE STATE OF NEW HAMPSHIRE
v.
HAYDN A. JONES
No. 79-236.
Supreme Court of New Hampshire.
September 26, 1980.
Gregory H. Smith, acting attorney general (Peter W. Mosseau, assistant attorney general, orally), for the State.
*653 Eleanor Krasnow, of Manchester, by brief and orally, for the defendant.
PER CURIAM.
In May 1977, the State tried and convicted the defendant of aggravated assault on the ground that he recklessly caused "bodily injury to another by means of a deadly weapon." RSA 631:2 II. The Trial Court (Flynn, J.) denied the defendant's motion to dismiss because of insufficient evidence. The defendant excepted to that denial and to the failure of the court to give requested instructions on self-defense and the weight to be given police testimony. He made no other objections to any of the instructions given. The trial court transferred the defendant's exceptions with respect to the jury instruction on the weight to be given police testimony to this court and we overruled them. State v. Jones, 119 N.H. 114, 398 A.2d 847 (1979). Thereafter, new counsel for the defendant filed a motion to set aside the verdict and for a new trial, which was amended to a petition for a writ of habeas corpus based on the claim that there was insufficient evidence to support the verdict and that the instructions on the elements of the crime were so erroneous as to deprive defendant of the right to trial by jury on each element of the crime. The petition was denied by Flynn, J., and the defendant appealed on the basis of alleged federal constitutional violations.
[1] The defendant was represented by admittedly competent counsel at his trial and on his direct appeal. Recognizing that he raised none of the issues now raised below or on the previous appeal by objection, exception or even by suggestion, the defendant seeks to persuade this court to permit him to bypass our contemporaneous exception rule. Nowhere is the rule more useful in furthering the State's interest than in the area of complaints about instructions to the jury. All of the defendant's claims, except with regard to the insufficiency of the evidence, fall into this class. We continue to adhere to our rule and recognize no exception into which defendant's case would fall. See Martineau v. Perrin, 119 N.H. 529, 404 A.2d 1100 (1979); State v. Gullick, 120 N.H. 99, 411 A.2d 1113 (1980); State v. Carroll, 120 N.H. 458, 417 A.2d 8 (1980).
[2] We also reject the defendant's claim that the evidence was insufficient under the standards of Jackson v. Virginia, 443 U.S. 307 (1979), to convict him. Although defendant did raise the question of the sufficiency of the evidence before the trial court he failed to pursue his claim here and thereby waived it.
[3] In any event, we are satisfied that the evidence was *654 sufficient to convict under the Jackson test. The charge arose out of an altercation which occurred when the defendant, who was being detained at the Manchester police station, refused to enter a cell in which he was being placed in order to avoid further fighting between his girlfriend and another female cellmate. The defendant took hold of an officer's revolver and, while it was still in the holster, fired a shot which superficially wounded another officer. The evidence clearly supports a finding that the defendant did in fact grab the gun and fire it. The jury was entitled to find beyond a reasonable doubt that the defendant knew that there was a risk that someone would be injured if he fired the gun and that he consciously disregarded that risk.
Appeal dismissed.
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167 Cal.App.4th 430 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES ANTHONY GUIFFRE, Defendant and Appellant.
No. C057127.
Court of Appeals of California, Third District.
October 8, 2008.
*432 Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BUTZ, J.
Defendant Charles Anthony Guiffre pleaded no contest to single counts of passing a forged check (Pen. Code, § 470, subd. (d))[1] in two separate cases. He also admitted an on-bail or own recognizance (O/R) enhancement. (§ 12022.1.) On June 7, 2007 (all further calendar references are to that year), the trial court suspended sentence and placed defendant on 60 months of formal probation. At the time of granting probation, the trial court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b) (section 1202.4(b)) and stayed a $200 probation revocation restitution fine pursuant to section 1202.44.
Defendant's probation was revoked after he was found to have violated its terms and conditions. On September 27, the trial court sentenced him to an *433 aggregate state prison term of four years eight months on the two forgery counts and O/R enhancement. Both the court minutes and the reporter's transcript of September 27 recite that the court again fined defendant $200 pursuant to section 1202.4(b). The court also imposed a $200 restitution fine pursuant to section 1202.45 and stayed the fine pending defendant's successful completion of parole. No mention was made of the previously stayed probation revocation restitution fine pursuant to section 1202.44.
DISCUSSION
Defendant's sole contention on appeal is that the trial court violated People v. Chambers (1998) 65 Cal.App.4th 819, 822 [76 Cal.Rptr.2d 732] (Chambers) by imposing a second restitution fine under section 1202.4(b). In Chambers, the defendant entered a no contest plea to first degree burglary. The trial court granted probation and, as a condition of probation, imposed a $200 section 1202.4(b) restitution fine. The trial court later revoked probation and sentenced the defendant to state prison, while imposing a $500 restitution fine pursuant to the same section. (Chambers, supra, 65 Cal.App.4th at p. 821.) We determined that the $500 restitution fine was unauthorized, declaring that there was "no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation." (Id. at p. 823.)
The Attorney General contends that Chambers was not violated because the second fine was, in fact, an imposition of the section 1202.44 fine, which had been stayed when probation was granted. This argument is lent some plausibility by the fact that both statutory fines were in the sum of $200. However, defendant's argument cannot be dismissed so easily, because the trial court made no mention of section 1202.44 when it pronounced sentence in September 2007.
(1) Resolution of this appeal turns on an important distinction between the two types of fines. The fine imposed under section 1202.4(b) is a garden-variety restitution fine, payable to the state.[2] "Restitution fines are *434 required in all cases in which a conviction is obtained." (Chambers, supra, 65 Cal.App.4th at p. 822.) The fine imposed under section 1202.44, however, is a probation revocation restitution fine, which was intended to mirror the parole revocation restitution fine currently provided for in section 1202.45. (People v. Taylor (2007) 157 Cal.App.4th 433, 439 [68 Cal.Rptr.3d 682].)
(2) Section 1202.44, which was enacted after Chambers was decided (Stats. 2004, ch. 223, § 3, eff. Aug. 16, 2004), calls for the imposition of a probation revocation fine at the same time a section 1202.4(b) restitution fine is imposed. Confusingly, section 1202.44 also requires that the revocation fine be in the same amount as the section 1202.4(b) fine.[3]
Thus, a convicted defendant who is granted probation will ordinarily be subject to two restitution finesa state Restitution Fund fine under section 1202.4(b) and a probation revocation restitution fine under section 1202.44, which is stayed unless probation is revoked.
That is exactly what the minutes reflect in this case. When it granted probation on June 7, the trial court dutifully checked the boxes and filled in amount lines, imposing a section 1202.4(b) fine in the amount of $200 and a $200 stayed probation revocation fine pursuant to section 1202.44.
(3) However, when the court sent defendant to state prison on September 27, both the oral pronouncement of sentence and the court minutes show that defendant was apparently fined again under section 1202.4(b). Under Chambers, the trial court did not have the authority to impose a second section 1202.4(b) fine, because the original fine survived the revocation of probation. (Chambers, supra, 65 Cal.App.4th at p. 822.) However, imposition of the probation revocation fine under section 1202.44 was not only authorized, it was mandatory, since probation had been revoked.
(4) The trial court either (1) intended to impose the section 1202.44 fine, but mistakenly referred to it as a section 1202.4(b) fine, or (2) erroneously *435 imposed a second section 1202.4(b) fine, when it should have instead lifted the stay on the section 1202.44 fine. In either case, this court has the inherent power to correct the judgment to reflect what the law requires. (§ 1260; People v. Smith (2001) 24 Cal.4th 849, 854 [102 Cal.Rptr.2d 731, 14 P.3d 942]; In re Sandel (1966) 64 Cal.2d 412, 417-418 [50 Cal.Rptr. 462, 412 P.2d 806].)
Unlike the court minutes, the abstract of judgment submitted to the Department of Corrections and Rehabilitation does not reflect the imposition of two section 1202.4(b) fines. Item 9.a. pertaining to "FINANCIAL OBLIGATIONS" correctly shows only one $200 restitution fine, payable forthwith. Item 9.a. also shows the $200 section 1202.45 parole revocation restitution fine. Below that entry, there is a second entry that should have been filled out in this case to read: "$[200] per P[enal] C[ode section] 1202.44 is now due, probation having been revoked." (Italics added.)
Unlike the abstract of judgment form, the trial court's "SENTENCING-PRISON" form does not have an entry line for lifting the stay on the probation revocation restitution fine. Thus, when the court pronounced sentence, it had no reason to reflect on the disposition of the section 1202.44 revocation fine that it had imposed, but stayed, when it placed defendant on probation.
(5) To avoid confusion and unnecessary appellate litigation, trial courts using prison sentence disposition forms that do not conform to the abstract of judgment forms promulgated by the Judicial Council are advised to modify them by adding an entry for payment of the section 1202.44 fine, so that defendants who are sent to prison following revocation of probation will be ordered to pay the proper fines under the correct code sections.
DISPOSITION
The trial court minutes of September 27 are corrected to reflect that the $200 fine imposed on defendant was a probation revocation fine pursuant to section 1202.44 rather than a state restitution fine under section 1202.4(b). Item 9.a. of the abstract of judgment is modified to reflect that defendant's $200 probation revocation restitution fine under section 1202.44 is now due and payable.
*436 The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. So modified, the judgment is affirmed.
Sims, Acting P. J., and Hull, J., concurred.
NOTES
[1] Undesignated statutory references are to the Penal Code.
[2] As pertinent here, subdivision (b)(1) of section 1202.4 provides: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor."
Section 1202.4, subdivision (e) provides that the fine shall be deposited in the Restitution Fund in the State Treasury.
[3] Section 1202.44 provides in relevant part: "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record."
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281 Pa. Superior Ct. 188 (1980)
421 A.2d 1212
John E. GALLAGHER and Mary E. Gallagher,
v.
TRANSPORT POOL INCORPORATED, a corporation, Appellant,
v.
RYDER TRUCK LINES, Helms Express Division.
Superior Court of Pennsylvania.
Argued November 12, 1979.
Filed September 19, 1980.
*189 Herman C. Kimpel, Pittsburgh, for appellant.
Paul E. Moses, Pittsburgh, for Gallagher, appellees.
James A. Prozzi, Pittsburgh, for Ryder, appellee.
Before PRICE, CAVANAUGH and WATKINS, JJ.
PRICE, Judge:
Appellant appeals the order of the court of common pleas granting appellee Ryder Truck Lines' (hereinafter Ryder's) petition for judgment on the pleadings and thereby dismissing appellant's complaint to join Ryder as an additional defendant. For the reasons stated herein, we affirm the order in part, reverse in part, and remand the case to the court of common pleas for further proceedings consistent with this opinion.
*190 The pertinent facts are as follows. Appellee John Gallagher, a truck driver employed by Ryder, was injured in the course of his employment when he allegedly slipped into a hole in the floor of a trailer leased by appellant to Ryder. The lease agreement contained an indemnity clause whereby Ryder agreed to indemnify appellant from liability to persons injured as a result of Ryder's failure to maintain the trailer in accordance with the provisions of the agreement.[1] Appellee Gallagher and his wife filed a complaint in trespass against appellant alleging that his injuries directly resulted from, inter alia, appellant's negligence in leasing the trailer in a dangerous and defective condition, and they each[2] sought compensatory damages in excess of $10,000. Appellant filed an answer denying appellees' allegations and new matter in which it alleged that a substantial change in the condition of the trailer was effected between the date of the lease agreement and appellee's accident. Appellant thereafter filed a complaint to join Ryder as an additional defendant and alleged that the dangerous condition of the trailer was caused by Ryder's negligence and that it had a contractual right of indemnification against Ryder. Ryder answered appellant's complaint and subsequently filed a motion for judgment on the pleadings based upon appellant's alleged failure to state a claim upon which relief could be granted. Ryder contended, in essence that as an employer in the context of the Pennsylvania Workmen's Compensation Act,[3] it was absolved of liability to third parties and that appellant's attempted joinder was therefore precluded. In granting the motion for jugdment on the pleadings, and thereby dismissing appellant's complaint against Ryder, the court of common pleas relied upon our decision in Hefferin v. Stempkowski, *191 247 Pa.Super. 366, 372 A.2d 869 (1977) and the decision of the Allegheny County Court of Common Pleas in Szemanski v. Vulcan Materials Company, 126 P.L.J. 167 (1978), reversed, 272 Pa.Super. 240, 415 A.2d 92 (1979).
On appeal, appellant contends that the trial court erred in granting Ryder's motion for judgment on the pleadings because the Workmen's Compensation Act allows joinder of an employer when a written indemnity contract is in force.[4] We agree.
Prior to the General Assembly's amendment of section 303 of the Workmen's Compensation Act (77 P.S. § 481), a third party being sued by an injured employee was permitted to join the plaintiff's employer as an additional defendant. See, e.g., Burke v. Duquesne Light Company, 231 Pa.Super. 412, 332 A.2d 544 (1974). However, in 1974 the legislature amended section 303(b) to provide as follows:
"(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action of law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party *192 alleged to be liable prior to the date of the occurrence which gave rise to the action." (footnotes omitted).
We had occasion to review this amendment in Hefferin v. Stempkowski, supra, and we there concluded that the General Assembly intended to make the Workmen's Compensation Act a complete substitute for, not a supplement to, common law tort actions against employers. Indeed, in Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978) our supreme court stressed that section 303 "obliterates" third parties' causes of actions for negligence against employers. Therefore, we conclude that the court of common pleas was correct in dismissing Count I of appellant's complaint which alleged negligence on the part of Ryder. See Szemanski v. Vulcan Materials Company, supra.
The trial court's and appellees' reliance on Hefferin, however, is misplaced as applied to Count II of appellant's complaint. Hefferin concerned the situation in which an employer is joined as an additional defendant only to determine his liability for negligence. In the case sub judice, appellant, in the second count of his complaint, sought to join Ryder to enforce a contractual right of indemnification. In reversing the Szemanski v. Vulcan Materials Company decision relied upon by the trial court in the instant case, a panel of our court determined that although section 303 bars joinder of an employer as an additional defendant to determine liability, it does not bar joinder to enforce a contractual obligation for indemnity pursuant to a written contract signed by the employer. We find that Szemanski controls the instant situation and therefore hold that the court of common pleas erred in granting Ryder's motion for judgment on the pleadings with respect to the second count of appellant's complaint.
Accordingly, we affirm the order of the court of common pleas as it applies to Count I of appellant's complaint, reverse the order as it applies to Count II of the complaint and remand the case for further proceedings consistent with this opinion.
NOTES
[1] The lease agreement provided, inter alia, that the lessee (Ryder) agreed, at its sole costs and expense, "to keep said equipment at all times during the life of this Agreement in good repair and operating condition . . . and to replace with new parts any and all badly worn or broken parts ...."
[2] Mrs. Gallagher's claim was in the nature of loss of consortium.
[3] Act of June 2, 1915, P.L. 736, Art. 1, §§ 101 et seq., as amended, 77 P.S. §§ 1 et seq.
[4] Appellant also contends that Ryder waived any attack to the joinder by failing to file preliminary objections. Our disposition of the instant case renders consideration of this issue unnecessary.
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FILED
NOT FOR PUBLICATION JUN 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10382
Plaintiff - Appellee, D.C. No. 2:08-cr-00288-PMP-RJJ-
3
v.
CALWAY WILLIAM CAULEY, AKA MEMORANDUM *
William Cauley,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10412
Plaintiff - Appellant, D.C. No. 2:08-cr-00288-PMP-RJJ-
3
v.
CALWAY WILLIAM CAULEY, AKA
William Cauley,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted May 17, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Calway William Cauley appeals his convictions of conspiracy to commit
bank and mail fraud, in violation of 18 U.S.C. § 1349, and mail fraud and aiding
and abetting, in violation of 18 U.S.C. §§ 2 and 1341, as charged in Counts One
and Two of the Second Superceding Indictment. The government cross-appeals
the district court’s denial of the government’s motion to enter an in personam
criminal forfeiture money judgment. We affirm Cauley’s convictions but reverse
and remand the district court’s denial of the government’s motion to order
forfeiture in light of United States v. Newman, 659 F.3d 1235 (9th Cir. 2011).
Because the parties are familiar with the factual and procedural history of this case,
we need not recount it here.
I
Sufficient evidence in the record supports Cauley’s convictions as charged
in Counts I and II of the second superceding indictment. Cauley’s sufficiency-of-
the-evidence challenge to his convictions succeeds “only if, viewing the evidence
in the light most favorable to the prosecution, no rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
-2-
States v. Lo, 231 F.3d 471, 475 (9th Cir. 2000). To prove mail fraud, “the
government must establish that a defendant used the mails ‘for the purpose of
executing such [fraudulent] scheme or artifice or attempting to do so.’” Id. at 478
(quoting 18 U.S.C. § 1341). “[T]he use of the mails need not be an essential
element of the scheme.” Schmuck v. United States, 489 U.S. 705, 710 (1989)
(citing Pereira v. United States, 347 U.S. 1, 8 (1954)). Where a defendant “does
an act with knowledge that the use of the mails will follow in the ordinary course
of business, or where such use can reasonably be foreseen, even though not
actually intended, then he causes the mails to be used.” Pereira, 347 U.S. at 8-9
(internal quotation marks omitted).
The conspirators could have reasonably foreseen that the mails would be
used in furtherance of their scheme. In order to obtain the loan underlying
Cauley’s conviction, the conspirators had to sign a servicing disclosure statement
that clearly stated that the mortgage lender, Sierra Pacific Mortgage Company
(SPMC), did not service its mortgage loans and that it intended to assign, sell, or
transfer the servicing of these loans. The closing documents also indicated that
SPMC assigned, sold, or transferred “100%” of its loans in 2004, 2005, and 2006.
It was therefore reasonably foreseeable that SPMC would use the mail to send the
-3-
loan documents from its Nevada office to its California office, where it
subsequently bundled and sold the loan to Countrywide.
Although SPMC mailed the loan documents after it funded the loan, the
mailing underlying a mail fraud conviction “can occur after the defendant has
obtained her fee, if ‘the mailing is part of the execution of the scheme as conceived
by the perpetrator at the time.’” Lo, 231 F.3d at 478 (quoting Schmuck, 489 U.S. at
715); see also United States v. Miller, 676 F.2d 359, 362 (9th Cir. 1982) (“A
fraudulent scheme may depend on a mailing even after the defrauders have
received their money.”). Just as the mailing in Schmuck was required for the car
dealers to complete the transaction by passing title to their customers, 489 U.S. at
707, the mailing in this case was required to execute the conspirators’ scheme by
allowing SPMC to sell the loan to Countrywide. Without that mailing, the
conspirators could not have used the proceeds of this loan to continue to execute
their fraudulent scheme of obtaining cash back on loans and using some of that
money to pay loans on other properties and to pay straw buyers.
II
The district court erred by declining to order Cauley to pay the statutorily
required criminal forfeiture judgment. When proper notice is given and forfeiture
is authorized by statute, “the district court must impose criminal forfeiture in the
-4-
amount of the ‘proceeds’ of the crime.” Newman, 659 F.3d at 1239. “For
purposes of criminal forfeiture, the ‘proceeds’ of a fraudulently obtained loan
equal the amount of the loan” and, in a conspiracy, the “proceeds” “equal the total
amount of the loans obtained by the conspiracy as a whole.” Id. at 1244. Thus,
because Cauley was found guilty of conspiracy to commit mail fraud, he is subject
to mandatory criminal forfeiture equal to the total amount of the loans obtained by
the conspiracy. Id. We therefore reverse and remand, in part, in light of Newman.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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215 Cal.App.3d 951 (1989)
264 Cal. Rptr. 39
ARMSTRONG WORLD INDUSTRIES, INC., Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MORAN CONSTRUCTION COMPANY et al., Real Parties in Interest.
Docket No. B042228.
Court of Appeals of California, Second District, Division Four.
November 16, 1989.
*953 COUNSEL
Munger, Tolles & Olson, Stephen M. Kristovich and M. Edward Whelan III for Petitioner.
No appearance for Respondent.
William M. Harmon, Ryan, Feldman & Brzoviv, Lana Feldman and Joseph J. Ryan for Real Parties in Interest.
OPINION
WOODS (A.M.), P.J.
This original proceeding in mandate presents the narrow "good-faith settlement" issue of whether a defendant tortfeasor's waiver of litigation costs in settling with a plaintiff constitutes "consideration paid" for the settlement within the meaning of section 877 of the Code *954 of Civil Procedure,[1] so as to reduce plaintiff's total recovery against nonsettling defendants proportionately.
We determine that by operation of section 877, subdivision (a), a waiver of litigation costs by a settling defendant effects a reduction in the liability of nonsettling defendants in the same manner as though the settlement involved payment of the equivalent amount to plaintiff in cash.
The facts giving rise to this proceeding are simple and not in material dispute.
In September 1985, 10 occupants of a new office building filed suit against various entities responsible for construction of the building, claiming personal injuries from toxic chemicals that were being generated within the building.
In December 1986, plaintiffs added petitioner in place of a fictitiously named defendant. Petitioner had installed ceiling tiles in the building. Plaintiffs allege the tiles leaked formaldehyde and contributed to their personal injuries and loss of earnings. The various defendants filed cross-complaints against one another.
In February 1989, petitioner obtained summary judgment against one group of ten plaintiffs (the Call plaintiffs) on the basis that their action against petitioner was barred by the applicable statute of limitations.
After judgment was entered, the Call plaintiffs and petitioner entered into a settlement whereby plaintiffs would forbear from appealing the summary judgment in consideration for petitioner forbearing from seeking an award of the costs it incurred in defending the action for two years. Pursuant to the settlement, plaintiffs did not appeal and petitioner did not seek an award of costs.
In March 1989, petitioner filed its motion for an order confirming its settlement as one made in "good faith" and dismissing the pending cross-complaints against it.
The motion was supported by a declaration by counsel stating that petitioner's litigation costs concerning the "Call plaintiffs" are estimated to total $15,000. The motion was also supported by authorities and exhibits material to the issue of petitioner's "reasonable range" of comparative fault *955 for the toxic chemical injuries and to the issue of the plaintiffs' potential total recoverable damages.
The nonsettling defendants filed opposition contending that under Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 [213 Cal. Rptr. 256, 698 P.2d 159], as a matter of law, a costs-waiver settlement by a defendant entitled to dismissal under a statute of limitations may not be in "good faith." They also urged that petitioner's settlement does not fall within the Tech-Bilt "reasonable range" of petitioner's probable liability.
Respondent denied the motion on the ground that petitioner's waiver of costs could not effect any economic benefit to the nonsettling defendants as a setoff against a subsequent plaintiffs' judgment. Respondent made no express finding whether $15,000 was within petitioner's "reasonable range" of probable liability. Respondent did state that, if the settlement had included an express agreement by plaintiffs permitting a $15,000 offset against any judgment they recover against the nonsettling defendants, then the settlement might have been approved.
The petition for writ of mandate followed.
We issued an alternative writ directing respondent to reconsider petitioner's motion on the basis that the waiver of costs is legal consideration effecting a corresponding reduction in the liability of the nonsettling defendants.
I
(1a) Respondent's denial of petitioner's motion is based on the premise that the settlement could confer no economic benefit to the nonsettling defendants because there was no express agreement by plaintiffs that petitioner's costs waiver would reduce the liability of the nonsettling defendants. Respondent concluded that the settlement thus fails to meet the statutory objective of fair apportionment of liability, as explained in Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 877-878 [239 Cal. Rptr. 626, 741 P.2d 124], in the context of sliding-scale settlements.
We find this analysis flawed. The controlling statutes do not distinguish between types of legal consideration for purposes of effecting the section 877, subdivision (a) reduction in the liability of nonsettling tortfeasors. The cases hold that settlements involving legal consideration other than a direct payment of money will effect such a reduction if the Tech-Bilt "reasonable range" test is otherwise met.
*956 The source of the "reduction" or "offset" criterion for "good faith" settlements is section 877, subdivision (a). It provides that a good faith settlement between a plaintiff and less than all defendants "... shall reduce the claims against the others [nonsettling defendants] in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater." (Italics added.)
By its terms, section 877, subdivision (a), effects the same automatic reduction in nonsettling defendants' liability for all judicially confirmed "good faith" settlements. The statute does not impose requirements as to how or when consideration is to be paid under a settlement agreement. (See Abbott Ford, Inc. v. Superior Court, supra, 43 Cal.3d at pp. 874, 877, & 877, fn. 21, and Southern Cal. Gas Co. v. Superior Court (1986) 187 Cal. App.3d 1030, 1035 [232 Cal. Rptr. 320].)
Neither does case law create any proscriptions against payment of consideration by other than immediate, direct payment of money. The analysis in Abbott Ford, Inc. v. Superior Court, supra, 43 Cal.3d at pages 877-887, determining what may constitute "consideration paid" under section 877, subdivision (a), reflects that the underlying costs-waiver settlement conferred cognizable consideration.
In the context of the sliding-scale, contingent-payment settlement before it (where the settling defendant made no payment contemporaneous with the settlement, and promised later payment only if plaintiffs recovered less than $3 million from the nonsettling defendants), Abbott Ford holds that if the settling defendant has at the time of settlement "... realistically paid a `consideration' that is within its Tech-Bilt `ballpark,' and if the nonsettling defendants obtain a reduction in the plaintiff's claims against them in an amount equal to that consideration, the statutory fair apportionment objective should be satisfied." (Abbott Ford, Inc. v. Superior Court, supra, 43 Cal.3d at p. 877, fn. omitted.) Abbott Ford goes on to hold that the amount of noncash consideration given in such settlements may be fixed by reasonable valuation by the settling parties (but subject to disputation by those opposing court approval of the settlement). Nonsettling defendants benefit from a proportionate section 877, subdivision (a) reduction in their liability to the settling plaintiff even though the settling defendant has made no direct payment of money to that plaintiff. (Abbott Ford, Inc. v. Superior Court, supra, at pp. 877-878, 886-887.)
In the context of the underlying cost-waiver settlement, the Abbott Ford analysis teaches that valuable consideration may be "paid" within the meaning of section 877, subdivision (a) absent an actual physical transfer of *957 funds. It also shows that noncash consideration will effect a proportionate section 877, subdivision (a) reduction in the liability of nonsettling defendants, to the extent of the value of the noncash consideration given.
These same principles recognized in Abbott Ford were earlier applied in Southern Cal. Gas Co. v. Superior Court, supra, 187 Cal. App.3d at page 1035, to a noncontingent payment settlement highly analogous to a cost-waiver settlement. There the settling defendant assigned certain tort causes of action to plaintiffs as part of its noncontingent settlement payment. In its writ opinion (per Kaufman, J.) the Court of Appeal holds that the settling defendant's assignment of actionable tort causes constituted valuable consideration, which by operation of section 877, subdivision (a) effected a proportionate reduction of the nonsettling defendants' liability. In dictum, the court suggested that the precise value of the assignment, for purposes of determining the liability reduction conferred upon the nonsettling defendants, may be fixed by the settling parties' declarations.
So, contrary to respondent's view, operation of the section 877, subdivision (a) setoff does not depend upon any express "offset" provision in the settlement agreement or upon an actual transfer of money.
The cases discussed above demonstrate there is no merit in real parties' contention that petitioner's forbearance from seeking an award of litigation costs may not constitute legal consideration. (2) Moreover, it is a fundamental principle of contract law that forbearance from exercising a legal right constitutes legal consideration. (Healy v. Brewster (1967) 251 Cal. App.2d 541, 551 [59 Cal. Rptr. 752].) Also, forgiveness of a prior indebtedness is legal consideration for a new contract.
As petitioner has pointed out from the outset, the identical consideration to the settling plaintiffs (and the identical benefit to the nonsettling defendants) could have been achieved by the more circuitous route whereby petitioner would obtain a $15,000 costs award, receive plaintiffs' $15,000 payment thereon, and then give plaintiffs a $15,000 settlement check from that fund. The distinction urged by real parties is purely one of form.
II
(1b) Neither is there merit to real parties' contention that, as a matter of law, under Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d 488, a settlement may not be in "good faith" where defendant's consideration is a waiver of costs.
*958 In Tech-Bilt, the statute of limitations had run against the defendant. When the statute of limitations bar was discovered by plaintiffs, defendant had incurred only $55 in costs. Defendant settled with plaintiffs by waiving its $55 costs without any view toward its probable substantial share of liability on the merits of plaintiff's action. Tech-Bilt holds only that the essentially valueless settlement was not within the "reasonable range" of the defendant's probable liability and thus did not satisfy the section 877.6 objective "of allocating costs equitably among multiple tortfeasors." (Tech-Bilt, supra, 38 Cal.3d at pp. 501-502.)
Real parties also argue that Tech-Bilt disapproves all costs-waiver settlements by defendants shielded from suit by a statute of limitations. Real parties' interpretation of Tech-Bilt is refuted by Tech-Bilt's grounding of its holding squarely upon its "reasonable range" test and by its detailed discussion, at page 501, approving Widson v. International Harvester Co. (1984) 153 Cal. App.3d 45 [200 Cal. Rptr. 136], as properly applying the principles underlying that test to a costs-waiver settlement.[2]
III
Finally, we dispose of real parties' contentions that were not raised in the proceedings below. Consideration of the merits of most of these new contentions is barred by fundamental rules of appellate review. None of the contentions has merit.
(3) We first reject real parties' new argument that petitioner's waiver of costs did not constitute legal consideration. The argument is that because petitioner did not timely move for a costs award before the settlement, its forbearance from doing so, by reason of its settlement-agreement promise, resulted in a postsettlement failure of legal consideration when the period for seeking such costs ran.
This is a sophistic argument. The subject settlement was entered into when petitioner had the legal right as prevailing party to seek a costs award. The consideration given by petitioner was its promise to forbear from exercising its legal right to seek costs (not to forbear from enforcing a costs award). Such a promise to forbear from exercising a legal right is legal consideration supporting a contract. (Healy v. Brewster, supra, 251 *959 Cal. App.2d at p. 551.) The implicit false premise in real parties' argument is that the sufficiency of a promise to forbear as legal consideration is to be evaluated not at the time of the contract but in the future when the underlying right lapses by reason of the failure to have exercised it.
(4) Real parties also advance the new contention that no evidentiary proof of the amount of litigation costs was adduced below. Although evidence of the value of the costs waiver was presented in the form of an attorney declaration below, we decline to entertain real parties' contention because it was never raised below. This contention involves a factual issue and evidentiary objections that should have been raised in real parties' initial opposition. Had this issue been raised below, it would have permitted a ruling and given petitioner the opportunity to cure any evidentiary defect determined to exist. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780 [97 Cal. Rptr. 657, 489 P.2d 537]; Haskell v. Carli (1987) 195 Cal. App.3d 124, 129 [240 Cal. Rptr. 439].)
Moreover, whether petitioner's costs totaled at least $15,000 is not a critical issue here. Rather, the issue is whether $15,000 would confer a fair proportionate reduction of real parties' liability to plaintiffs if the settlement were approved as being in "good faith." The record in this proceeding shows that plaintiffs were served with notice of petitioner's section 877.6 motion and all subsequent papers and orders concerning that motion. Plaintiffs, represented by counsel, were aware that they would be subject to a $15,000 reduction of their recovery from the nonsettling defendants if petitioner's motion were granted. Yet no plaintiff has opposed petitioner's motion or otherwise disputed the $15,000 figure. This being so, real parties have no cause to dispute for the first time in this mandate proceeding whether petitioner's costs in fact amounted to at least the $15,000 value.
Finally, real parties now complain that no proof was adduced as to how the $15,000 reduction would be apportioned as between the 10 plaintiffs. Consideration of this belated contention in this proceeding is barred because the factual issue was not raised in the trial court where real parties had the burden of discrediting the settlement. In addition, real parties' new apportionment issue appears relatively insignificant. The 10 plaintiffs settled with petitioner as a group represented by the same counsel. There is no indication that an equal apportionment of the $15,000 reduction among 10 plaintiffs would render the settlement unfair.
IV
Let a peremptory writ of mandate issue directing respondent to vacate its orders of April 12 and May 17, 1989, which denied the motion of petitioner, *960 Armstrong World Industries, Inc., for a "good faith settlement determination," and thereafter reconsider that motion on the basis that petitioner's waiver of litigation costs will effect a corresponding $15,000 reduction in the liability of the nonsettling defendants to plaintiffs.
McClosky, J., and George, J., concurred.
NOTES
[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] In Widson v. International Harvester Co., supra, 153 Cal. App.3d 45, the statute of limitations had run as to the settling defendant tortfeasor. Defendant nevertheless paid $30,000 to settle with plaintiff. Widson held that the settlement had properly been determined to be in "good faith" because defendant's consideration was reasonable in light of his potential liability and plaintiff's probable range of recovery in the action. (Id., at p. 58.)
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506 N.E.2d 56 (1987)
AMERICAN BUILDINGS COMPANY, Appellant (Defendant below),
v.
KOKOMO GRAIN COMPANY, Inc., Appellee (Plaintiff below), and LeMaster Steel Erectors, Inc., Nominal Appellee (Defendant below).
No. 34A02-8607-CV-235.
Court of Appeals of Indiana, Second District.
April 13, 1987.
Rehearing Denied April 30, 1987.
*57 Thomas J. Trauring, Fell, McGarvey & Trauring, Kokomo, for appellant.
Glenn D. Commons, David M. Hamacher, David W. Holub, Saul I. Ruman & Associates, Hammond, for appellee Kokomo Grain Co. Inc.
Paul H. Johnson, Jr., Donaldson, Andreoli & Truitt, Lebanon, for appellee LeMaster Steel Erectors, Inc.
SULLIVAN, Judge.
Appellant American Buildings Company (American) appeals an interlocutory order *58 granting appellee Kokomo Grain Company's (Kokomo) motion to compel discovery. We hold the order to be erroneous in part, and remand for further proceedings.
The litigation stems from the collapse of a grain storage building sold by American to Kokomo. Following the collapse, Kokomo filed its complaint against American alleging breach of contract, negligence, fraud, and strict liability in tort for defective engineering, design, manufacturing, erection and construction of the building.
In the course of discovery, Kokomo filed a request for production by American of all investigative reports and notes made by American, or on its behalf, regarding six prior similar failures of buildings sold by American. Kokomo specifically requested the report of Jim Fisher, an expert hired by American to analyze the collapse of a building in Wisconsin similar to the building sold by American to Kokomo. American objected to the request, asserting that the documents sought were irrelevant and protected by the work-product doctrine. Kokomo moved for an order compelling discovery, and the court granted the motion as follows:
"THE COURT NOW ORDERS THE FOLLOWING:
Motion Requesting Extension of Deadline to Complete Discovery is granted all as per written order.
Court having taken under advisement the plaintiff's motion to compel, now grants said motion and orders the defendant to comply therewith save and except those matters which are the work product of the attorneys on any and all cases that were actually filed and active at the time the information sought was determined. The court finds that all other memorandums, testing results and the like are relevant to the case at bar and are discoverable as non-work product. Court finds that this order is an interlocutory order and contains a substantial question of law, the early determination of which will produce a more orderly disposition of the case, and finds that remedy by appeal after judgment is inadequate pursuant to Indiana Rules of Procedure 4(B), 6(B)(C). Court notifies counsel."
American perfected this interlocutory appeal to challenge the order.
American argues that the order is in error in that it (1) permits discovery of work product from previously terminated litigation, (2) requires a case to have been actually filed and active at the time a document was created in order for the document to qualify as work product, and (3) limits the work-product doctrine to work product of attorneys. Kokomo argues that the order is not in error because American has failed to carry its burden of demonstrating that the items sought are work product.
At the outset it must be noted that a trial court is vested with considerable discretion in matters of discovery. CIGNA-INA/Aetna v. Hagerman-Shambaugh (1985) Ind. App. 3d Dist., 473 N.E.2d 1033, 1036.
It must also be pointed out that while both parties couch their arguments in terms of the work-product doctrine, this case also involves the requested production of a document prepared by an expert in anticipation of litigation. The concepts are distinct. The discovery of work product and matters from experts are governed by separate provisions within Trial Rule 26. Trial Rule 26(B)(3) codifies the work-product doctrine and provides in pertinent part as follows:
"(3) Trial Preparation: Materials. Subject to the provisions of subdivision (B)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (B)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery *59 of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
Subdivision (B)(4) provides for the discovery from experts. For purposes of this case, the relevant section of the subdivision is 26(B)(4)(b), which provides as follows:
"(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."
Our Trial Rule 26 is adopted from the Federal Rules of Civil Procedure. Federal authorities, therefore, are relevant in our discussion. Coster v. Coster (1983) Ind. App. 1st Dist., 452 N.E.2d 397. The Advisory Committee Notes to Federal Rule 26(b)(4) state that the subdivision's provisions, "reject as illconsidered the decisions which have sought to bring expert information within the work product doctrine." See also In re I.B.M. Peripheral EDP Devices Antitrust Litigation (1977) N.D.Cal., 77 F.R.D. 39, 42 ("[T]he work product rule does not apply to experts... .") Additionally, it has been held that because of the specific provisions of Federal Rule 26(b)(4) with respect to experts, the more general provisions of Federal Rules 26(b)(1) and 26(b)(3) are not controlling on the issue of production of experts' reports. Quadrini v. Sikorsky Aircraft Div., United Aircraft Corp. (1977) D.Conn., 74 F.R.D. 594. Thus, when discussing the discovery of facts known and opinions held by an expert, we are not concerned with a branch of the work-product doctrine but rather a separate exception to the general rule codified by T.R. 26(B)(1) that all relevant matters are discoverable.
Because the rule governing discovery of materials from experts is distinct from the rule governing discovery of work product, our inquiry with respect to the report prepared by Jim Fisher is not whether the work-product exception to the general discovery rule of 26(B)(1) applies to work product prepared in anticipation of prior litigation, but whether the 26(B)(4) exception applies to experts retained in anticipation of prior litigation. We hold that it does not.
This is a question of first impression in Indiana and the authorities construing T.R. 26(B)(4) are few. However, there is federal authority which is helpful in the resolution of the issue.
In Grinnell Corp. v. Hackett (1976) D.R.I., 70 F.R.D. 326, the defendant sought to depose the plaintiff's experts. The court determined that the experts could be deposed concerning a report which had not been prepared in anticipation of litigation but which was going to be introduced as evidence at trial. "Since the information sought from their experts was not acquired in anticipation of litigation or for trial, Rule 26, as I interpret it, would permit their deposition if the liberal requirements of Rule 26(b)(1) are satisfied without necessitating the satisfaction of the more restrictive requirements of Rule 26(b)(4)(A) or (B)." Id. at 351. Although there was no contention in Grinnell that the information sought had been prepared in anticipation of prior litigation, the Grinnell court's construction of Rule 26(b)(4) led it to conclude "that discovery of experts is to be limited only insofar as the information sought was obtained for the very purpose of preparing for the litigation in question." Id. at 332 (Emphasis supplied).
The court in Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co. (1975) E.D.Va., 68 F.R.D. 397, made reference to the Advisory Committee notes in construing the rule and reached a conclusion similar to that reached by the court in Grinnell.
"Referring to Subdivision (b)(4) as a whole, the Committee observed:
*60 This is a new provision dealing with discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation... . (Emphasis supplied).
This explanation, applied to the whole of Subdivision (b)(4), indicates that when an expert is referred to anywhere in the Subdivision, such reference contemplates an expert who has been retained for purposes of the pending litigation." Id. at 406-7 (Emphasis supplied).
In Sullivan v. Sturm, Ruger & Co., Inc. (1978) D.Mont., 80 F.R.D. 489, the plaintiff sought to depose an expert employed by the defendant weapons manufacturer. The expert had been employed by a plaintiff in a previous similar action against the same defendant weapons manufacturer. The plaintiffs in the subsequent action indicated that they would limit their deposition to inquiries concerning work done by the expert while employed by the plaintiff in the previous litigation. The court relied on Grinnell, supra, 70 F.R.D. 326, to hold that the expert was not protected by 26(b)(4)(B).
"This court believes the Grinnell rationale should be extended to cover the present situation. The knowledge, opinions and materials plaintiffs seek to discover were not formed and developed by Hillberg for defendant. True, such were prepared in anticipation of litigation; but not in anticipation of this lawsuit nor for the defendant in this lawsuit." Id., 80 F.R.D. at 491.
Our reading of Indiana Trial Rule 26(B)(4) leads us to the same conclusion reached by the cases cited above that the protection granted materials from experts does not extend to facts known or opinions held by an expert retained or specifically employed in anticipation of prior litigation. Subsection (a) of T.R. 26(B)(4) clearly applies only to experts retained in anticipation of the pending litigation:
"(a)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." (Emphasis supplied).
This future reference to the trial clearly limits application of this provision to experts retained for the purposes of the pending litigation. The same future reference to a trial is present in subsection (b) of the rule:
"(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." (Emphasis supplied).
The only logical interpretation of this subsection is that the trial in preparation of which the expert was hired, and the trial at which the expert is not expected to be called, are one and the same trial. It is impossible for an expert not to be expected to be called as a witness in a trial which has already taken place. Thus, 26(B)(4)(b) does not apply to expert witnesses retained or specifically hired in anticipation of prior litigation.[1] The report prepared by Jim *61 Fisher was not protected from discovery by T.R. 26(B)(4)(b).
A determination that items are not protected by T.R. 26(B)(4) does not necessarily preclude a determination that the same materials are protected from discovery under T.R. 26(B)(3). Virginia Electric & Power Co., supra, 68 F.R.D. 397. However, in this case it is clear that the Fisher report does not fall within the ambit of 26(B)(3), even though 26(B)(3) may protect work product prepared in anticipation of prior litigation. Trial Rule 26(B)(3) protects documents and tangible things prepared in anticipation of litigation by a party or the party's representative, including his attorney, consultant, surety, indemnitor, insurer, or agent.
Fisher was an expert retained by American rather than a representative of American. It could be argued that Fisher was a consultant. However, in the context of Trial Rule 26(B)(3) a consultant must do more than simply provide information. A consultant provides advice. One who provides advice does so in order to aid the party he is advising. The two are teamed in an effort to achieve a successful result. In contrast, the primary function of an expert is to provide information. "[A]n expert is expected to owe his allegiance to his calling and not to the party employing him." Virginia Electric & Power Co., supra, 68 F.R.D. at 406. In this case, there is nothing of record to indicate that Fisher served American in any role other than that of expert. He provided American with his expert opinion as to the reason for the Wisconsin building collapse. He did not advise American in its preparation for litigation. He was not a consultant and his opinion and report were not protected by T.R. 26(B)(3).
Because the report prepared by Fisher is not protected either by T.R. 26(B)(3) or T.R. 26(B)(4), it is discoverable under the general provisions of T.R. 26(B)(1).[2]See Grinnell Corp., supra, 70 F.R.D. 326; Sullivan, supra, 80 F.R.D. 489. There can be no doubt that the Fisher report is relevant.
"[R]elevancy for the purposes of discovery is not the same as relevancy at trial. A document is relevant to discovery if there is the possibility the information sought may be relevant to the subject matter of the action." CIGNA-INA/Aetna v. Hagerman-Shambaugh, supra, 473 N.E.2d at 1036 (citations omitted).
The reasons for the previous collapse of a building similar to that purchased by Kokomo might closely approximate the circumstances or conditions surrounding the Kokomo collapse. The Fisher report is, therefore, discoverable.
We now consider the other documents sought to be protected by American under the work-product doctrine of T.R. 26(B)(3).[3] These other documents, like the Fisher report, were apparently prepared in anticipation of prior litigation. However, our holding that the protections of T.R. 26(B)(4) apply only to experts retained in anticipation of pending litigation does not mandate a similar interpretation with regard to T.R. 26(B)(3). As noted, the exceptions to the general discovery provision of T.R. 26(B)(1) *62 which are provided for work product and experts are distinct. Restrictions upon the discovery of materials from experts imposed by 26(B)(4) are designed to guard against the danger that one party will unfairly use another party's experts to prepare his case. Annot., 33 A.L.R.Fed. 403, 420. Thus, the concern underlying the exception is the maintenance of fairness in a particular adversarial proceeding. In contrast, the rationale supporting the work-product doctrine goes to the heart of the attorney-client relationship.
"The primary purpose of the work product privilege is to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client. The work product privilege would be attenuated if it were limited to documents that were prepared in the case for which discovery is sought. What is needed, if we are to remain faithful to the articulated policies of Hickman, is a perpetual protection for work product, one that extends beyond the termination of the litigation for which the documents were prepared. Any less protection would generate the very evils that the Court in Hickman attempted to avoid." In re Murphy (1977) 8th Cir., 560 F.2d 326, 334.
The rationale of the Murphy court is persuasive. Accordingly, we hold that the work-product doctrine applies to items prepared in anticipation of prior litigation. Our holding is in accord with the majority of federal cases which have considered the question. See Annot., 41 A.L.R.Fed. 123 (1979). See also 10 Federal Proc., L.Ed. § 26:41 ("The older view that the work product privilege extends only to documents prepared in anticipation of the instant litigation has given way to the modern view that the work product privilege extends to documents prepared in anticipation of any litigation, not just the instant litigation.")
We recognize the apparent inconsistency between our holding that 26(B)(3) applies to prior litigation and our holding that 26(B)(4) does not. However, we must reiterate that, despite their presence within the same trial rule, 26(B)(3) and 26(B)(4) are independent exceptions to the general discovery provision. Given the intent of Trial Rule 26(B)(3) and 26(B)(4), it is not logically possible to harmonize the meaning of "in anticipation of litigation" within the two sections.
American next argues that a case need not have been filed and active at the time a document was created in order for the document to be considered work product. Indiana Trial Rule 26(B)(3) requires that the document be created "in anticipation of litigation." Courts and commentators have offered a variety of formulas in an effort to define more precisely the term "in anticipation of litigation." See 23 Am.Jur.2d, Depositions and Discovery § 53 (1983). While these authorities have failed to establish a clear line between those documents which are prepared in anticipation of litigation and those which are not, they have made clear that a case need not actually be filed at the time the document is produced in order for work-product protection to attach. "`Indisputably, the work-product doctrine extends to material prepared or collected before litigation actually commences.'" CIGNA-INA/Aetna v. Hagerman-Shambaugh, supra, 473 N.E.2d at 1037, quoting In re Grand Jury Investigation (1979) 3d Cir., 599 F.2d 1224, 1229.
The work-product doctrine does extend to documents created prior to the actual filing of a case. However, the question remains as to when a document becomes a document prepared in anticipation of litigation. While there is no precise way to answer in every case, the test suggested by Professors Wright and Miller draws as clear a line as possible.
"Prudent parties anticipate litigation, and begin preparation prior to the time *63 suit is formally commenced. Thus, the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." 8 Wright & Miller, Federal Practice & Procedure § 2024 at 198 (1970).
American is also correct in its contention that the work-product doctrine, notwithstanding its genesis in the attorney-client relationship, protects the work product of persons other than attorneys. Trial Rule 26(b)(3) applies to documents prepared in anticipation of litigation "by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)... ."
"The work product provision codified in the Federal Rules and comparable state rules is not confined to information gathered or assembled by a lawyer. In giving non-lawyers equal status with lawyers for the purposes of `in anticipation of litigation' in the 1970 amendment to Rule 26, it was not the Advisory Committee's goal to widen or narrow the scope of the basic work product doctrine, but rather to require a showing of relevancy and need for the production of trial preparation materials whether they are prepared by an attorney or by the party or his agent." 23 Am.Jur.2d, Depositions and Discovery § 51 (1983).[4]
Our agreement with American's interpretation of the work-product doctrine does not necessarily lead to a conclusion that the documents are protected against discovery. As stated in 8 Wright & Miller, Federal Practice and Procedure § 2024: "In order to come within the qualified immunity from discovery created by Rule 26(b)(3) three tests must be satisfied. The material must be:
"1. `documents and tangible things;'
2. `prepared in anticipation of litigation or for trial;' and
3. `by or for another party or by or for that other party's representative.'"
Kokomo argues that American failed to satisfy these tests, and specifically argues that American failed to show that the materials sought were prepared in anticipation of litigation. Thus, it is asserted that the documents American sought to protect never came within the ambit of T.R. 26(B)(3) and were therefore properly discoverable.
Resolution of the work-product claim might perhaps best be described as a threestep process of shifting burdens. In actuality, however, the focus is not so compartmentalized. It is more often than not required to be viewed in a totality. It is nevertheless helpful to consider the requirements in terms of burdens falling upon the respective parties.
In the first step, the party seeking discovery serves upon the other party a request to produce the documents sought pursuant to Trial Rule 34.[5] The burden at this stage is upon the party seeking discovery to describe the items sought with reasonable particularity. In the second step, the burden is upon the party resisting discovery to make a prima facie showing that the documents are protected by the work-product doctrine as defined by T.R. 26(B)(3). If that showing is adequately made, the party seeking discovery must show "substantial need" of the materials *64 and an inability to obtain a substantial equivalent without "undue hardship."
The determinative process of the trial court is not triggered unless the discovery petitioner demonstrates with reasonable specificity the nature and extent of the discovery materials sought. If the court may not summarily deny discovery upon the grounds that the petition is clearly and patently a fishing expedition, it then falls to the opposing party to come forward with a prima facie demonstration that the materials sought fall within the work-product protection. If such showing is not made the court should grant discovery even though the petitioner has not shown that the materials are essential and not otherwise available.
If a prima facie showing of work-product has been shown, the trial court may then require the demonstration of necessity, failing which the court should deny discovery.
Of course, a discovery petitioner may properly make its two assertions at the same time. It may seek to demonstrate the necessity component of the equation in the contingent expectation that the opposing party might assert a work-product protection. In such event, if the contingency does not occur, the court need not and should not consider whether the petitioner has shown necessity.
Kokomo successfully met its burden in the first step of the process by requesting, "All investigative reports and notes made by American Buildings or any one on American Buildings' behalf regarding the six other building collapses referred to in response to previous Interrogatories submitted to plaintiff." While Kokomo's request in this regard was far from specific, it was sufficient to meet the reasonable particularity standard. As stated in 8 Wright & Miller, Federal Practice and Procedure § 2211 (1970): "Even a generalized designation should be sufficient when the party seeking discovery can not give a more particular description and the party from whom discovery is sought will have no difficulty in understanding what is wanted." In this case, Kokomo could not reasonably know what reports were prepared regarding the previous building collapses. Kokomo's request was therefore sufficiently specific enough to advise American what was wanted.
The question thus becomes whether American met its burden in attempting to bring the documents within the work product protection of Rule 26(b)(3). There is a paucity of authority detailing what a party must do to meet this burden. However, it is clear that a party must do more than merely claim that the requested documents constitute work product. "A party may not simply claim that materials have been prepared in anticipation of litigation; it must specify the basis for the objection and the items of work product involved." 4 Moore's Federal Practice § 26.64[2]. See also In re Shopping Carts Antitrust Litigation (1982) S.D.N.Y., 95 F.R.D. 299, 306 ("[D]efendants have the burden of establishing that any requested information is protected. They have not attempted to do so beyond this unspecific and generalized objection.")
In this case, American has failed to meet its burden with respect to the documents sought by Kokomo. Kokomo requested "[a]ll investigative reports and notes made by American Buildings or any one on American Buildings' behalf regarding the six other building collapses... ." American objected asserting that the documents Kokomo sought to discover were work product. Additionally, John Norton stated in his affidavit that the documents sought by Kokomo were prepared in anticipation of litigation and contained mental impressions, conclusions, opinions, or legal theories of an attorney or another representative of American concerning the anticipated litigation. At no time did American specify the items of work product involved or the litigation for which the alleged work product was prepared. American's general work-product objection was insufficient to establish, even prima facie, that the material requested was protected.
*65 Absent a sufficiently specific objection, it is impossible to determine whether any of the documents sought by Kokomo are discoverable merely upon a showing of relevance under 26(B)(1) or upon a showing of substantial need and undue hardship under 26(B)(3). Additionally, the documents sought may enjoy a near absolute immunity from discovery under 26(B)(3) if they contain the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the ligitation. In re Murphy, supra, 560 F.2d 326. We simply are unable to determine whether the documents are discoverable based upon American's vague work-product objection.
It is impossible to affirm or reverse the order of the trial court. The order is that all documents other than those which constitute attorney work-product on cases active at the time of the discovery request are discoverable. We have detailed our disagreement with the trial court's apparent interpretation of the breadth of the work-product doctrine. However, we cannot reverse the order because the order does nothing to change the status of the parties. The order simply conveys an incorrect definition of the work-product doctrine and leaves to the parties the determination of which documents fall within the trial court's definition.
More specifically, the order fails to determine which, if any, of the documents are discoverable and which therefore must be produced. Conversely, the order fails to determine which, if any, of the documents are work-product, or otherwise protected from discovery.
Because we cannot reverse the effect of an order which has no effect, we remand the matter to the trial court. However, we do approve the order to the extent that it may be construed to require production of the Fisher report.
With regard to the other documents sought by Kokomo, the matter is remanded for a ruling upon the production of those documents in a manner not inconsistent with this opinion.
Costs are hereby assessed against the appellant.
SHIELDS, P.J., and BUCHANAN, J., concur.
NOTES
[1] We are aware of one case in which the protection of 26(B)(4) was been extended to experts retained in anticipation of prior litigation. However, the case involved exceptional circumstances which are not present in the case before us.
In In re "Agent Orange" Product Liability Litigation (1985) E.D.N.Y., 105 F.R.D. 577, the plaintiff sought to depose experts who had been retained by the defendant in anticipation of an action which had already been settled. However, the settled action was part of the same multidistrict litigation as the case before the In re "Agent Orange" court. The court held that Federal Rule 26(b)(4) controlled discovery of the experts.
"Given the legal and factual similarities, the involvement of many of the same parties, and the procedural realities of the M.D.L. process, it is reasonable to interpret Rule 26(b)(4) to reach experts retained by a party for trial preparation in a closely related case that is before the court as part of the same multidistrict litigation." Id. at 580.
[2] Trial Rule 26(B)(1) provides:
"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
[3] The work-product doctrine has its roots in Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, and that case's progeny. A 1970 amendment to the Federal Rules of Civil Procedure, Rule 26(b)(3), codified the doctrine announced in Hickman and refined by subsequent cases. 8 Wright & Miller, Federal Practice and Procedure § 2023 (1970).
[4] One might appropriately suggest that extension to materials prepared by persons other than attorneys does indeed widen the scope of the work-product protection. The fact remains, however, that the language of the rule itself does precisely that.
[5] Trial Rule 34 provides in pertinent part:
"(A) Scope. Any party may serve on any other party a request:
(1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including, without limitation, writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which intelligence can be perceived, with or without the use of detection devices) or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(B) and which are in the possession, custody or control of the party upon whom the request is served... ."
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280 Pa. Superior Ct. 115 (1980)
421 A.2d 432
Frank MACINA
v.
Robert McADAMS, Appellant.
Superior Court of Pennsylvania.
Argued March 12, 1980.
Filed July 25, 1980.
*116 C. Dean Francis, Philadelphia, for appellant.
G. Taylor Tunstall, Philadelphia, for appellee.
Before SPAETH, BROSKY and VAN der VOORT, JJ.
*117 SPAETH, Judge:
This appeal arises from an order granting a new trial.
On December 31, 1970, at approximately 5:00 a.m. appellee was driving a milk truck on Roosevelt Boulevard in Philadelphia when he was hit from the rear by an automobile operated by appellant. Appellee subsequently instituted a trespass action alleging that appellant's negligence caused him to sustain back injuries. At trial appellant admitted that his negligence caused the accident, but claimed that appellee had suffered no injury. The jury returned a verdict in favor of appellant, and appellee filed a motion for judgment non obstante veredicto or a new trial. The lower court refused to order judgment n.o.v., but granted a new trial on the ground that the jury's verdict was contrary to the evidence.
Appellant argues that the lower court erred in granting a new trial because the causation of appellee's back injuries was an issue for the jury to determine. Specifically, he asserts that a jury question was raised by Dr. Bong Lee's testimony that he could not find any traces of traumatic injury to appellee's back when he examined appellee almost four years after the accident, and that he believed that any disability appellee was experiencing at that time was the result of a birth defect. Appellant also cites appellee's testimony regarding his employment. It appears that the accident did not cause appellee to miss work, and that for a year and a half after the accident, he continued to work as a milkman, lifting milk cartons weighing 50 to 60 pounds. It also appears that when appellee quit his job as a milkman, he became a general masonry and cement contractor, employment which also entailed manual labor. Appellant further asserts that appellee's credibility as a witness was undermined during cross-examination regarding the preparation of his income tax returns.
"It is the general rule that the granting or denying of a new trial is a decision within the sound discretion of the trial judge." Palmer v. Brest, 254 Pa.Super. 532, 536, 386 A.2d 77, 79 (1978). Thus,
*118 "[o]ne who appeals from the grant of a new trial assumes a very heavy burden indeed. Before we will reverse, the appellant must be able to show that the trial court was guilty of a palpable abuse of discretion or acted on an erroneous rule of law which, in the circumstances, controlled the outcome of the case and is certified by the trial court as the sole reason for the granting of a new trial." Mohr v. Plotkin, 186 Pa.Super. 615, 617, 142 A.2d 414, 415 (1958), quoting Mozino v. Canuso, 384 Pa. 220, 223, 120 A.2d 300, 301 (1956).
See also Eisert v. Jones, 399 Pa. 204, 159 A.2d 723 (1960); Seidel v. Yeadon Borough, 191 Pa.Super. 45, 155 A.2d 370 (1959). However, a trial court
may not grant a new trial merely because it believes that the jury should have decided differently. A new trial should not be granted on the ground that the verdict is against the weight of the evidence where the evidence is conflicting and the jury could have decided in favor of either party. Hilliard v. Anderson, 440 Pa. 625, 271 A.2d 227 (1970); Burrell v. Philadelphia Electric Company, [438 Pa. 286, 265 A.2d 516] supra; Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951). "A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Jones v. Williams, 358 Pa. 559, [564], 58 A.2d 57; Carroll v. Pittsburgh, supra, 368 Pa. at 447, 84 A.2d 505; Brown v. McLean Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 606 (1969)." Burrell v. Philadelphia Electric Company, supra, 438 Pa. at 289, 265 A.2d at 518. See also Naponic v. Carlton Motel, Inc., 221 Pa.Super. 287, 289 A.2d 473 (1972). Dixon v. Andrew Tile & Mfg. Corp., 238 Pa.Super. 275, 280, 357 A.2d 667, 670-71 (1976).
See also Weaver v. Firestone Tire & Rubber Co., 267 Pa.Super. 526, 407 A.2d 45 (1979); Sindler v. Goldman, 256 Pa.Super. 417, 389 A.2d 1192 (1978).
*119 Applying these principles, we have concluded that the lower court did not abuse its discretion in granting a new trial.
Appellee testified that the accident caused him to spring forward and back in his seat, and that while he did not notice any physical injury at the time, by the following day his back began to bother him. He subsequently visited his family physician, who, in turn, referred him to an orthopedic specialist, Dr. Stanley Brown. Dr. Brown examined appellee on three occasions during 1971 and as a result of the examinations appellee obtained medication and bought a back brace. Meanwhile, appellee continued to work as a milkman, even though the lifting of milk cartons was painful, because the salary was good and he had a family to support. In July 1972, appellee had to quit his job as a milkman because he "couldn't handle it no more." Much of the manual labor involved in his subsequent employment as a general contractor was performed by other persons.
The above testimony was not contradicted by appellant, nor was the testimony of appellee's wife concerning the disability appellee experienced after the accident. Moreover, Dr. Brown testified to his belief that appellee was born with a weak back, that his back was injured in the accident, and that the disability appellee was experiencing resulted from the accident. While Dr. Lee testified for appellant that he believed the trauma of the accident was not responsible for the disability appellee complained of, when he examined appellee almost four years after the accident, Dr. Lee refrained from stating that the accident caused appellee no injury. Indeed, Dr. Lee testified that he thought appellee might have suffered "a soft tissue injury from the accident." N.T. at 210.
It is true, as appellant contends, that the jury might have disbelieved all of appellee's proof regarding his injuries, even though much of the proof was uncontradicted. Yet, even if the jury could have done so without rendering *120 its verdict arbitrary and capricious, appellee was nevertheless entitled to recover the expenses he incurred for medical examinations to determine whether he had been injured in the accident. Gudat v. Heuberger, 275 Pa.Super. 535, 419 A.2d 30 (1980); Surgent v. Stein, 280 Pa.Super. 142, 421 A.2d 445 (1980) (SPAETH, J., concurring).
It may be noted that the lower court stated in its opinion filed pursuant to Pa.R.A.P. 1925(a) that its "decision to grant a new trial was based on the overwhelming evidence supporting the contention that [appellant] was solely responsible for the accident." Slip op. at 4. The court also stated that "[i]f, in fact, [appellee] cannot prove that the alleged injury to his back or his alleged lost wages are due to the accident, he would still be entitled to a verdict in his favor, however small in amount." Slip op. at 5. These statements indicate a misunderstanding by the lower court of the elements of a cause of action founded upon negligence. Those elements are:
1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure on his part to conform to the standard required.
3. A reasonably close causal connection between the conduct and the resulting injury . . . .
4. Actual loss or damage resulting to the interests of another.
Prosser, Law of Torts, § 30 at 143 (4th ed. 1971).
See also Brodhead v. Brentwood Ornamental Iron Co., Inc., 435 Pa. 7, 255 A.2d 120 (1969); Surgent v. Stein, supra; Speck v. Finegold, 268 Pa.Super. 342, 370, 408 A.2d 496, 511 (1979) (SPAETH, J., concurring and dissenting) (loss or damage is element of action founded upon negligence). The subcommittee note to Pennsylvania Standard Jury Instructions, Civil Instruc. No. 3.25-Legal Cause (Subcommittee Draft, Oct. 14, 1973), cited in the lower court's opinion, is not contrary. The note merely states that so as not to confuse the jury, the proposed instruction on legal cause "relates *121 causation to the happening of the accident, rather than to the injury or to the harm." Neither the note nor the proposed instruction purports to state-as the lower court in its opinion implies-that a jury fails in its duty if it finds for a defendant in a negligence action where the plaintiff does not prove injury resulting from the defendant's negligence.
While the lower court's opinion might be read as indicating that the lower court granted a new trial solely on the basis of its misunderstanding of the law, we believe that underlying the opinion is the perception by the lower court that appellee was entitled to some recovery from appellant, a perception that was justified, since, as we have observed, at the very least appellant was entitled to recover the expenses incurred for medical examinations. Because "[t]he presumption is that the trial court was justified in granting a new trial even when the reason given is insufficient, unless it is stated to be the only reason," Seidel v. Yeadon Borough, supra, 191 Pa.Super. at 50, 155 A.2d at 372; Mohr v. Plotkin, supra, 186 Pa.Super. at 617, 142 A.2d at 415, we shall not disturb the lower court's order.
Affirmed.
VAN der VOORT, J., concurs in the result.
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288 Md. 199 (1980)
421 A.2d 60
TIMOTHY SWEETWINE
v.
STATE OF MARYLAND
[No. 41, September Term, 1979.]
Court of Appeals of Maryland.
Decided August 12, 1980.
*200 The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE,[**] ORTH, COLE and DAVIDSON, JJ.
George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
Stephen H. Sachs, Attorney General, with whom was Diane G. Goldsmith, Assistant Attorney General, on the brief, for appellee.
ELDRIDGE, J., delivered the opinion of the Court.
In this criminal case, the defendant was charged with both a greater offense and a lesser included offense based upon the same act. He pled guilty to the lesser included charge, was convicted and sentenced only upon that charge, and the greater charge was not submitted to the trier of facts. Later, the defendant repudiated the guilty plea and was successful in obtaining a new trial. The issue before us is whether, under these circumstances, the defendant may be retried on the greater charge and, upon conviction, receive a sentence for the greater offense which exceeds the sentence previously imposed for the lesser offense.
The petitioner, Timothy Sweetwine, was charged with *201 robbery in violation of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 486, with armed robbery in violation of Art. 27, § 488, and with other related offenses.[1] Pursuant to a plea agreement, he pled guilty to robbery under § 486; the State agreed to drop the other charges; and he was sentenced to six years' imprisonment.[2] Claiming that his plea was involuntary, Sweetwine appealed to the Court of Special Appeals. His conviction was reversed by that intermediate appellate court, in an unreported opinion, on the ground that the record did not adequately reflect that the "plea was voluntarily or intelligently made."
On remand for a new trial before a different judge, the State offered Sweetwine the same plea bargain which had been agreed to at the first trial. Furthermore, on the condition that Sweetwine would once again plead guilty to the robbery count charging simple robbery, the trial judge offered to limit the sentence to the six-year term that was *202 imposed at the first proceeding. Sweetwine declined the offer, pled not guilty, and was subsequently retried on the entire indictment. The jury found him guilty of armed robbery, and the trial judge sentenced him to twenty years' imprisonment. Thereafter, the conviction was affirmed by the Court of Special Appeals, Sweetwine v. State, 42 Md. App. 1, 398 A.2d 1262 (1979).
Sweetwine then filed a petition for a writ of certiorari, raising several issues. We granted the petition, limiting our review solely to the question of whether, after petitioner's first conviction for simple robbery was reversed on appeal, he could be retried for and given a greater sentence for armed robbery.
The petitioner's attack upon the retrial for armed robbery and the increased sentence has several different prongs. Relying chiefly upon Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), Sweetwine argues that the retrial for the greater offense violated the Fifth Amendment's prohibition against double jeopardy. The petitioner also urges that, apart from constitutional considerations, we should follow the decision in People v. McMiller, 389 Mich. 425, 208 N.W.2d 451, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), and, as a matter of state criminal procedure, refuse to countenance retrial on the higher charge under the circumstances of this case. Next, petitioner argues that even if retrial on the armed robbery charge were permissible, the increased sentence was inconsistent with due process principles as set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Additionally, the petitioner contends that the increased sentence after retrial violated Code (1974, 1980 Repl. Vol.), § 12-702 (b) of the Courts and Judicial Proceedings Article.
(1)
In holding that double jeopardy principles did not bar the trial for armed robbery after a reversal of the robbery conviction, the basic reason offered by the Court of Special *203 Appeals was that, at the first trial, jeopardy never attached to the armed robbery count. The intermediate appellate court relied on the fact that no evidence was offered with respect to the armed robbery count, and relied on the State's failure to nolle pros or otherwise dismiss that count. Sweetwine v. State, supra, 42 Md. App. at 3. As an alternate ground, the court below took the view that whether jeopardy attached or not, in a plea bargain situation "the whole package of reciprocal arrangements is conditional" and if the defendant has the guilty plea set aside, "both the defendant and the state return to `square one.'" 42 Md. App. at 4.
We agree with the holding of the Court of Special Appeals, although not entirely with that court's reasoning. At petitioner's first trial, when the court accepted his plea of guilty to simple robbery, "jeopardy" attached to the greater charge of armed robbery based on the same act. See, e.g., Blondes v. State, 273 Md. 435, 445, 330 A.2d 169 (1975); Brown v. State, 367 So.2d 616, 620-621 (Fla. 1979); Ray v. State, 231 So.2d 813, 814-815 (Fla. 1969); State v. Taylor, 22 Wash. App. 308, 589 P.2d 1250, 1252-1253 (1979). However, the fact that jeopardy has attached with regard to an offense does not automatically mean that retrial is precluded in all circumstances. In some situations, "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973).
Under circumstances like those in the case at bar, we believe that a defendant can ordinarily be retried on the greater charge whether or not "jeopardy" is deemed to have attached to that charge at the first trial. This would be true even if the greater charge had formally been nolle prossed at the conclusion of the first proceeding. Moreover, although we agree with the court below concerning the nature of a plea bargain in this situation, we think that the defendant could have been retried for armed robbery regardless of whether the original guilty plea to simple robbery was the product of a negotiated plea agreement.
In our view, this case is controlled by the principle of *204 United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Recently in Parks v. State, 287 Md. 11, 15, 410 A.2d 597, 600 (1980), Judge Cole pointed out for the Court: "Since United States v. Ball ... was decided, it has been settled that the ... protection [against double jeopardy] imposes no limitation upon the power of a competent tribunal to retry a defendant who has succeeded in getting his first conviction set aside." After reviewing the facts and holding in United States v. Ball, Judge Cole continued in Parks (287 Md. at 16, emphasis supplied):
"Ball, then, makes clear that a defendant who successfully challenges his conviction may be retried by a court of competent jurisdiction, the rationale being that the defendant wiped the slate clean and the parties may start anew. Not only is the right of the defendant to an error-free trial protected but the societal interest that the guilty should be punished is preserved."
The reasons for the Ball principle were detailed in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964):
"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage *205 if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest."
Later, in North Carolina v. Pearce, supra, 395 U.S. at 719-721, the Supreme Court stated (emphasis supplied):
"At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided, it has been settled that this constitutional guarantee [against double jeopardy] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside....
"Although the rationale for this `well-established part of our constitutional jurisprudence' has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction .... But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean...."
See also United States v. Scott, 437 U.S. 82, 89-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Burks v. United States, 437 U.S. 1, 13, 98 S.Ct. 2141, 2148-2149, 57 L.Ed.2d 1 (1978); United States v. Wilson, 420 U.S. 332, 343-344, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975); Chaffin v. Stynchcombe, 412 U.S. 17, 23-24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714 (1973); United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966).
We recognize that the principle of United States v. Ball has normally been dealt with by the Supreme Court in the context of a retrial with regard to the identical charge on *206 which the defendant was previously convicted. The Court has not expressly considered the applicability of the Ball principle under circumstances like those in the present case, to permit a retrial on a different charge (whether or not that different charge is "deemed" the same offense under the required evidence test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Nevertheless, we agree with the great majority of state courts and lower federal courts which have held that, when a defendant succeeds in getting his conviction set aside, under circumstances like those in the instant case, ordinarily he may be retried on all of the charges in the original indictment which were not factually resolved, either expressly or implicitly.[3] The rationale underlying the *207 Ball principle, and the reasoning of the cases dealing with that principle, clearly lead to this conclusion.
In the present case, the conviction on the charge of simple robbery was completely intertwined with the armed robbery charge. Because of the accepted guilty plea to simple robbery, the armed robbery charge was not submitted for adjudication on its merits. The accepted guilty plea to simple robbery was the operative event which disposed of the armed robbery charge as well as the simple robbery charge. Because the defendant successfully challenged the guilty plea, thereby undermining the basis for the disposition of the simple robbery charge, he can under Ball be retried for simple robbery. Since the same guilty plea in effect was the basis for the disposition of the armed robbery charge, it would follow that the defendant's overturning the guilty plea similarly wipes out the disposition of the armed robbery count. As previously mentioned, the Supreme Court in North Carolina v. Pearce, supra, 395 U.S. at 721, stated that the rationale for the Ball principle "rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." Here, the foundation for the original disposition of both the simple robbery and the armed robbery charge has, at the defendant's behest, been wholly nullified. If the slate is to be "wiped clean," the defendant should be subject to retrial on both charges.
As pointed out in United States v. Tateo, supra, 377 U.S. at 466, the rule of United States v. Ball is also grounded upon fairness in the administration of justice, considering the interests of the public as well as those of the defendant. It would not be consistent with the fair administration of justice to limit the retrial, in the circumstances of the present case, to the lesser charge. The defendant escaped prosecution and a verdict on the armed robbery charge only by pleading guilty to simple robbery. Even in the absence of an express plea bargain, this is the implicit arrangement *208 when a court accepts a guilty plea to a lesser offense and the more serious charge is not submitted to the trier of facts. To immunize such a defendant from prosecution on the greater charge, while at the same time permitting a rescission of the guilty plea, would be to allow the defendant to repudiate the arrangement while at the same time retain its benefits. It would allow him to overturn his conviction on the lesser charge on the theory that there really was no guilty plea, because the "plea" was not shown to be voluntary, but inconsistently rely upon the existence of the guilty plea as a bar to prosecution on the greater charge. This is neither sound logic nor even-handed administration of justice.[4]
The reasoning in Supreme Court opinions, particularly Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), which is relied on by the defendant here, supports the view that the Ball rule is applicable under the facts of this case to permit retrial on the armed robbery count. Green, involving an entirely different situation from that here, is a case dealing with the applicability of the Ball principle to the matter of retrial on a greater charge than the charge on which the defendant was previously convicted. In Green, the defendant was indicted on two counts for arson and first degree murder. The jury was instructed that it could find Green guilty of arson under the first count, and of either first or second degree murder under the second count. *209 Green was found guilty of arson and second degree murder, but the jury's verdict was silent on the first degree murder charge. After Green's second degree murder conviction was subsequently reversed, he was tried again on the second count of the indictment and found guilty of first degree murder. In holding that the retrial and conviction for first degree murder was a violation of the Fifth Amendment's double jeopardy clause, the Supreme Court initially discussed the Ball principle that a defendant who obtains reversal of a conviction by his own appeal can be retried, 355 U.S. at 189. The Court then distinguished the case before it from the typical situation where retrial is permitted under Ball, pointing out that at the "new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge." (Id. at 190, emphasis supplied.) The Supreme Court went on to set forth two reasons why Green's second trial for first degree murder violated the double jeopardy prohibition. First, the Court held that the jury's refusal to convict Green of first degree murder constituted an implicit acquittal on that charge (ibid.):
"Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder...."
The second reason for the conclusion in Green was stated as follows (id. at 190-191, emphasis supplied):
"But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was *210 dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: `We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.'"
The basis on which the Court in Green distinguished that case from Ball, and the reasons set forth in Green for precluding retrial on the greater charge, suggest that the Ball principle, rather than the holding in Green, controls the situation in the case at bar. Thus, in initially pointing out that Green differed from the typical case of retrial after appeal, the Supreme Court referred to the fact that the first jury had refused to find the defendant guilty of the greater charge. And the first reason given in Green for the double jeopardy holding was that this refusal by the jury constituted an implicit acquittal. In the instant case, however, there was no refusal by the trier of facts to find the defendant guilty of armed robbery. The charge was never submitted to the trier of facts. The defendant was not "forced to run the gantlet" on the greater charge. Consequently, there is no basis for viewing the absence of an armed robbery conviction as an implied acquittal. The second reason for the Green holding is likewise inapplicable here. The Court in Green relied on the fact that the jury, "given a full opportunity to return a verdict," was nevertheless dismissed without returning a verdict on the greater charge "and without Green's consent." 355 U.S. at 191. In the present case, on the contrary, the trier of facts was not given an *211 opportunity to return a verdict and was not dismissed without the defendant's consent. Instead, it was the defendant's own act, in pleading guilty to the lesser charge, which prevented submission of the greater charge to the trier of facts.
Subsequent Supreme Court opinions applying the Green holding are also based on the same reasoning set forth in Green, and do not in any measure support the position of the defendant here. See Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ("The concept of continuing jeopardy implicit in the Ball case ... [does not apply] after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge.") (emphasis added); Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (an express acquittal on a different charge). Although in a different context, involving the Government's right to appeal under the Double Jeopardy Clause, what was recently said in United States v. Scott, supra, 437 U.S. at 98-99, is very instructive:
"We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of `waiver' of double jeopardy rejected in Green. Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of the defendant's factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment *212 by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him."
The Court thus distinguished Scott from Green on the ground that, in Green, the question of the defendant's factual guilt or innocence was actually submitted to the trier of facts, whereas in Scott, it was the defendant's own act which caused a termination of the proceedings on grounds unrelated to factual guilt or innocence and prevented this factual issue from being submitted to the jury. The Court clearly viewed the Green exception to the principle of United States v. Ball as limited to the situation where the merits of the greater offense were submitted to the jury for resolution. In the instant case, the merits of the armed robbery count were not submitted to the trier of facts. When the defendant obtained a reversal of the conviction on the lesser charge, the Supreme Court cases would indicate that he could be retried on all parts of the original indictment not submitted to the trier of facts for resolution.[5] Consequently, the defendant's retrial on the armed robbery charge was permissible.[6]
(2)
The defendant further contends that even if he could be retried for armed robbery, he could not properly receive a *213 sentence for that offense which exceeded the sentence previously imposed for simple robbery. He relies upon North Carolina v. Pearce, supra. There, the defendant Pearce had successfully overturned, in a post conviction proceeding, his conviction of assault with intent to rape, was retried, and was given a sentence for that identical offense which was longer than the sentence originally imposed. In the companion case to Pearce, Simpson v. Rice, the defendant Rice pleaded guilty to four charges of burglary and was sentenced to an aggregate of ten years' imprisonment. His convictions were later overturned in a state coram nobis proceeding, and he was retried and convicted on three of the same charges. Rice received a prison term which was approximately three times as severe as his first sentence. The Court stated in its Pearce opinion that under the Due Process Clauses, "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725. Recognizing the difficulty of showing vindictiveness, the Court held that due process principles required the following protective procedure (395 U.S. at 726):
"In order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal."
The Supreme Court concluded that the sentencing judges in the two cases before it had failed to offer reasons or justification for the increased punishments. Therefore, the sentences were set aside on due process grounds. 395 U.S. at 726.
*214 In arguing that the trial judge in the present case improperly imposed a more severe sentence upon his conviction for armed robbery, the defendant, in addition to his reliance on Pearce, also invokes Code (1974, 1980 Repl. Vol.), § 12-702 (b) of the Courts and Judicial Proceedings Article. This section, which incorporates the language of the Pearce opinion almost verbatim, was intended by the General Assembly to codify the Pearce due process holding.[7] Acts of 1973, 1st Sp. Sess., Ch. 2, § 1, Revisor's notes. Like Pearce, this section prevents the imposition of a more serious sentence upon retrial for the same offense except under limited circumstances.
The short answer to the defendant's argument, and the answer given by other courts to similar contentions, is that the sentence at the second trial was not for the same offense as the earlier sentence.[8] The longer sentence was imposed because of the conviction for a more serious crime, armed robbery. As stated by the United States Court of Appeals for the Second Circuit in United States ex rel. Williams v. McMann, 436 F.2d 103, 105 (2d Cir.1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971):
"Williams rather simplistically urges us to apply the Pearce rule to vacate his second sentence, because it recites no such justification. But Williams's straightforward argument overlooks the glaring fact that Judge Gale's sentence was imposed upon conviction for a more serious crime. Given this complete and obvious explanation for the longer *215 sentence, we see no need to demand the type of justification ordered in Pearce. ... To view Williams's longer sentence with a presumption of vindictiveness would be an illogical application of the salutary Pearce rule to a situation far removed from the problem for which it was designed."
See also, e.g., Martinez v. Estelle, 527 F.2d 1330, 1331-1332 (5th Cir.1976), cert. denied, 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292 (1976); State v. Taylor, 22 Wash. App. 308, 589 P.2d 1250, 1254 (1979).
The Legislature has prescribed a maximum punishment of ten years' imprisonment for simple robbery, Art. 27, § 486. However, because it has viewed robbery with a dangerous or deadly weapon as substantially more serious, the Legislature prescribed a twenty-year maximum punishment for armed robbery, Art. 27, § 488. Unlike the situation in North Carolina v. Pearce, a sentence for armed robbery which exceeds a sentence previously imposed for only simple robbery, is prima facie justified by the legislative policy. Under these circumstances, in our view, the longer sentence should not be held to violate the due process principles delineated in Pearce unless the defendant affirmatively shows that it was imposed out of vindictiveness or in retaliation for his prior appeal. The record in the case before us contains no such showing. On the contrary, the trial judge's comments at the time of sentencing demonstrate that the increased sentence was imposed because of the conviction for a more serious crime, because the defendant not only threatened his robbery victim with a knife but stabbed him causing serious injuries, and because of the defendant's prior extensive criminal record including a murder conviction. The defendant's twenty year sentence for armed robbery in this case was not in violation of either due process or statutory requirements.
Judgment affirmed.
Petitioner to pay costs.
NOTES
[**] Reporter's Note: Orth, J., participated in the hearing of the case and in the conference in regard to its decision but retired prior to the adoption of the opinion of the Court.
[1] Section 486 provides:
"Every person convicted of the crime of robbery, or as accessory thereto before the fact, shall restore the thing robbed or taken to the owner, or shall pay to him the full value thereof, and be sentenced to the penitentiary for not less than three nor more than ten years."
Section 488 provides:
"Every person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment in the Maryland Penitentiary for not more than twenty years."
Although treated in two statutory sections, both simple robbery under § 486 and armed robbery under § 488 constitute the common law felony of robbery. The statutory provisions merely fix the penalties for robbery (§ 486) and for that robbery if it is committed with a dangerous or deadly weapon (§ 488). See Whack v. State, 288 Md. 137, 140-141, 416 A.2d 265 (1980), and cases there cited. Nevertheless, because armed robbery requires proof of an additional element, the offenses are distinct. Simple robbery must be treated as a lesser included offense of armed robbery. See Bynum v. State, 277 Md. 703, 707, 357 A.2d 339, 341, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976).
[2] Although the State neither dismissed nor entered a nolle prosequi on the remaining counts of the indictment, this appears to have been implicitly agreed to. The record of the guilty plea hearing does indicate other matters relevant to the bargain. In return for the plea, the State agreed to request a presentence report and agreed to recommend that Sweetwine be allowed to remain out on the same bail. A recommendation as to the length of the sentence, however, was not a part of the bargain.
[3] See, e.g., Moore v. Foti, 546 F.2d 67 (5th Cir.1977); United States v. Williams, 534 F.2d 119 (8th Cir.1976), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Anderson, 514 F.2d 583, 586-588 (7th Cir.1975); Harrington v. United States, 444 F.2d 1190, 1193-1194 (5th Cir.1971); United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971); United States v. Wells, 430 F.2d 225 (9th Cir.1970); Ward v. Page, 424 F.2d 491 (10th Cir.1970), cert. denied, 400 U.S. 917, 91 S.Ct. 178, 27 L.Ed.2d 157 (1970); United States v. Myles, 430 F. Supp. 98, 101-102 (D.D.C. 1977), aff'd, 569 F.2d 161 (D.C. Cir.1978); Harris v. Anderson, 364 F. Supp. 465 (W.D.N.C. 1973); Clark v. State, 294 Ala. 485, 318 So.2d 805 (1974), cert. denied, 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1975); People v. Hill, 12 Cal.3d 731, 769, 528 P.2d 1, 117 Cal. Rptr. 393, 422 (1974), partially overruled on other grounds, People v. De Vaughn, 18 Cal.3d 889, 558 P.2d 872, 875 n. 5, 135 Cal. Rptr. 786 (1977); In re Sutherland, 6 Cal.3d 666, 672, 493 P.2d 857, 100 Cal. Rptr. 129 (1972); Brown v. State, 367 So.2d 616, 623 (Fla. 1979); State v. Russo, 299 So.2d 40 (Fla. App. 1974), cert. denied, 312 So.2d 746 (1975); Commonwealth v. Therrien, 359 Mass. 500, 269 N.E.2d 687 (1971); State v. Rhein, 117 N.J. Super. 112, 283 A.2d 759, 763 (1971); People v. Wolfson, 32 A.D.2d 813, 302 N.Y.S.2d 217 (1969); People v. Cignarale, 110 N.Y. 23, 17 N.E. 135, 142-143 (1888); State v. Asimakis, 86 S.D. 339, 195 N.W.2d 407, 408 (1972); State v. Johnson, 218 Tenn. 433, 404 S.W.2d 244 (1966); State v. Taylor, 22 Wash. App. 308, 589 P.2d 1250 (1979).
The only court which had flatly taken a contrary position on double jeopardy grounds, and only when the guilty plea was to a lesser included offense, was apparently the United States Court of Appeals for the Sixth Circuit. See United States v. Smith, 584 F.2d 759, 761-762 (6th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979); Rivers v. Lucas, 477 F.2d 199 (6th Cir.1973), vacated on other grounds, 414 U.S. 896, 94 S.Ct. 232, 38 L.Ed.2d 139 (1973); Mullreed v. Kropp, 425 F.2d 1095 (6th Cir.1970). However, in Hawk v. Berkemer, 610 F.2d 445 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit overruled its prior cases and adopted the same position as the other appellate courts on this issue.
A few state courts have taken a contrary position, although not on double jeopardy grounds. People v. Dugan, 15 Ill. App.3d 1071, 305 N.E.2d 308 (1973); People v. Thornton, 403 Mich. 389, 269 N.W.2d 192 (1978); People v. McMiller, 389 Mich. 425, 208 N.W.2d 451, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973).
[4] For these same reasons, we reject the defendant's alternate suggestion that we adopt his position as a matter of state criminal law policy. The only court which has done so, to our knowledge, is the Supreme Court of Michigan. The grounds for the Michigan court's view were set forth in People v. McMiller, supra, 208 N.W.2d at 453, as follows:
"Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant's right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny noncompliance with the guilty plea procedure established by the statute and the court rule."
With regard to the second ground, the danger foreseen by the Michigan court is unlikely to occur, at least in this state. There has been no scarcity in appellate opportunities to review compliance with the guilty plea procedure set forth in our rules. If anything, the problem has been too many appellate cases involving the issue. As to the first reason offered by the Michigan court, we believe that any danger of discouraging the right to appeal convictions based on guilty pleas claimed to be improperly accepted, if such a danger exists, is clearly outweighed by the reasons delineated above for permitting retrial on all of the original charges.
[5] Although not dealing with the double jeopardy prohibition, the opinions in Santobello v. New York, 404 U.S. 257, 263 n. 2, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and Miller v. State, 272 Md. 249, 255-256, 322 A.2d 527 (1974), are also relevant. It was there held that where the prosecution breached a plea bargain, entitling the defendant to rescind his guilty plea, if the defendant elected to rescind the guilty plea then "he will have to plead anew to all of the original charges, including those which the State had nol prossed." Miller, 272 Md. at 256.
[6] The cases have suggested or recognized some limitations to this rule under certain circumstances, none of which are present in the case at bar. See, e.g., Harrington v. United States, supra, 444 F.2d at 1193-1194; People v. Collins, 21 Cal.3d 208, 577 P.2d 1026, 1030, 145 Cal. Rptr. 686 (1978); State v. Satterlee, 58 Wash.2d 92, 361 P.2d 168, 170 (1961).
[7] Section 12-702 (b) provides:
"If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper judgment or sentence, or conduct a new trial, and if there is a conviction following this new trial, the lower court may impose any sentence authorized by law to be imposed as punishment for the offense. However, it may not impose a sentence more severe than the sentence previously imposed for the offense unless:
(1) The reasons for the increased sentence affirmatively appear;
(2) The reasons are based upon objective information concerning identifiable conduct on the part of the defendant occurring after the original sentence was imposed; and
(3) The factual data upon which the increased sentence is based appears as a part of the record."
[8] See n. 1, supra.
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280 Pa. Superior Ct. 384 (1980)
421 A.2d 775
COMMONWEALTH of Pennsylvania, Appellant,
v.
Freddie Marlin GOOSLIN.
Superior Court of Pennsylvania.
Submitted December 6, 1979.
Filed August 15, 1980.
Petition for Allowance of Appeal Denied December 2, 1980.
*385 Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellant.
Robert S. Trigg, Lancaster, for appellee.
Before BROSKY, WICKERSHAM and EAGEN, JJ.[*]
BROSKY, Judge:
Appellee, Freddie Marlin Gooslin, was charged with escape[1] after his failure to return from a work-release program in which he was participating while incarcerated for an earlier conviction.[2] Prior to trial on the escape charge, appellee's request for parole from the sentence he was then serving was denied based upon his violation of the conditions of the work-release program.
*386 Subsequently, appellee's omnibus pre-trial motion filed in the instant case was granted and the escape charge dismissed by virtue of the lower court's determination that prosecution upon the same set of circumstances which had earlier caused the court to deny the petition for parole appellee's failure to return from his work-release fell within the protection against double jeopardy afforded by Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand 455 Pa. 622, 314 A.2d 854 (1974). The Commonwealth has appealed from the dismissal.[3]
Our appellate courts have classified the prohibition against double jeopardy as being threefold. It protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishment for the same offense. See Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978). See also, Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978).
We believe the circumstances of the instant case do not place it within those guidelines and, accordingly, find no violation of appellee's constitutional right against double jeopardy.
In so doing, we dismiss at the outset any suggestion that the lower court's consideration of appellee's conduct specifically, his failure to return to the correction facility at a hearing for his application for parole can be deemed a prosecution for a criminal offense arising from such conduct. On the contrary, it was appellee's request for parole, rather than a proceeding initiated by the Commonwealth, which necessitated the court's review of appellee's conduct.
*387 The fact that that conduct also constitutes a criminal offense for which appellee was later (instantly) prosecuted does not transform the parole hearing into a prosecution. Thus, the instant prosecution is not, as appellee maintains, a second, but rather the initial prosecution. On that basis, Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d (1973), on remand 455 Pa. 622, 314 A.2d 854 (1974), is inapposite.
Similarly, neither do we believe that the instant prosecution exposes appellee to multiple punishment within the intended purview of his constitutional guarantee against double jeopardy. The granting of parole is not a right, but rather a matter of discretion. Commonwealth ex rel. Hendrickson v. State Board of Parole, 409 Pa. 204, 185 A.2d 581 (1962); Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971). See also Commonwealth v. Colding, 237 Pa.Super. 612, 352 A.2d 554 (1975). As such, while the determination not to exercise that discretion may be based upon, and thus attributable to, specific conduct of the applicant, we cannot conclude the denial of parole constitutes punishment as would result following a successful prosecution. A denial of parole more accurately amounts to the court's refusal to grant the applicant that privilege.
To conclude otherwise would be to allow appellee, or one similarly situated, to thwart the Commonwealth's efforts to prosecute him by having previously sought and been denied parole based upon the same conduct. No basis exists for such a result.
For the foregoing reasons, we cannot conclude that the prosecution of appellee upon the escape charge violated his constitutional guarantee against double jeopardy. Accordingly, we reverse the lower court's dismissal of such charge and remand the case for trial.
WICKERSHAM, J., files a concurring statement.
*388 WICKERSHAM, Judge, concurring:
I concur in the result.
NOTES
[*] Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania is sitting by designation.
[1] 18 Pa.C.S. Section 5121.
[2] Appellee was originally sentenced to serve not less than that time already served nor more than 12 months for operating a motor vehicle while under the influence of alcohol and granted immediate parole. Parole was subsequently revoked on August 11, 1978 and appellee directed to serve balance of his original sentence.
[3] The Commonwealth may appeal from an adverse ruling where, as here, the question involved is purely one of law. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 204 (1963); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211 (1956); Commonwealth v. Wallace, 114 Pa. 405, 6 A. 685 (1886).
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491 Pa. 607 (1980)
421 A.2d 1050
COMMONWEALTH of Pennsylvania, Appellee,
v.
John A. BUNDY, Appellant.
Supreme Court of Pennsylvania.
Submitted September 24, 1980.
Decided October 31, 1980.
John Halley, Pittsburgh (Court-appointed), for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
*608 OPINION
LARSEN, Justice:
In 1972, appellant was convicted of murder in the first degree in connection with the shooting death of his girlfriend. Motions for new trial and arrest of judgment were denied, and appellant was sentenced to life imprisonment. A direct appeal was taken to this Court, and we affirmed the judgment of sentence, see Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974).
Subsequently, appellant filed a petition under the Post Conviction Hearing Act alleging ineffective assistance of trial counsel. A hearing was held, and the relief requested was denied. Because appellant's counsel at that hearing was from the same public defender's office as was trial counsel, this Court reversed the lower court's order and remanded the case for a second hearing, see Commonwealth v. Bundy, 480 Pa. 543, 391 A.2d 1018 (1978). After that hearing, a second order denying relief was entered, and the instant appeal is from that order.
Appellant's sole contention is that he was denied effective assistance of counsel because his attorney failed to adequately prepare for trial. Appellant bases this assertion on the fact that his counsel met with him only once before the trial and failed to establish a working relationship with him.
The time devoted to attorney-client consultations affords no basis for inferring the total extent of trial preparation. Commonwealth v. Owens, 454 Pa. 268, 272, 312 A.2d 378, 381 (1972). This is particularly true in the instant case, as the record discloses that: an investigator from trial counsel's office interviewed appellant at length and taped the interview; as a result of that interview, other investigators were dispatched to locate potential witnesses; trial counsel reviewed appellant's taped statement and the investigators reports and spoke with each of the investigators who had worked on the case; trial counsel also obtained and reviewed his associate's file on, and the testimony from, the coroner's inquest; and, finally, trial counsel prepared for and argued a *609 pre-trial suppression motion which had been filed by appellant. This record amply supports the lower court's conclusion that trial counsel was adequately prepared for trial, and that court's order denying appellant's petition for post-conviction relief is, therefore, affirmed.
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964 N.E.2d 316 (2012)
CLARK
v.
REVIEW BD. OF DEPT. OF WORKFORCE DEVELOPMENT.
No. 93A02-1108-EX-800.
Court of Appeals of Indiana.
March 2, 2012.
FRIEDLANDER, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
RILEY, J. and MATHIAS, J., Concurs.
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280 Pa. Superior Ct. 527 (1980)
421 A.2d 847
COMMONWEALTH of Pennsylvania,
v.
William Kelly McGARRY, Appellant.
Superior Court of Pennsylvania.
Submitted April 16, 1980.
Filed September 19, 1980.
*528 Alan Ellis, State College, for appellant.
Kim C. Kesner, Assistant District Attorney, Clearfield, for Commonwealth, appellee.
Before SPAETH, WICKERSHAM and LIPEZ, JJ.
SPAETH, Judge:
This appeal raises the issue of ineffectiveness of defense counsel at guilty plea proceedings.
On March 5, 1979, appellant was arrested on charges of possession of amphetamines and marijuana and possession of marijuana with the intent to deliver.[1] On June 13, 1979, appellant entered a guilty plea to the latter charge, and was sentenced to imprisonment of two to five years, less one day. Appellant then filed a petition for reconsideration of sentence. Although the lower court issued a Rule to Show Cause as to why the court should not reconsider the sentence, no action appears to have been taken on that Rule. On July 11, 1979, appellant filed a Notice of Appeal, alleging that the sentence was excessive. In September 1979 the public defender representing appellant petitioned for leave to withdraw as counsel. This petition was granted on October 1, 1979. In the meantime, on September 14, 1979, another attorney filed an entry of appearance on appellant's behalf, and petitioned for an extension of time in which to file a brief. On January 14, 1980, however, this attorney *529 petitioned for leave to withdraw as counsel. This petition was granted on March 17, 1980. Appellant now files a prose brief.
Appellant argues that he was denied effective assistance of counsel by the public defender who represented him at his guilty plea hearing. In particular, appellant alleges that the defender: 1) failed to discuss with him potential defenses before advising him to plead guilty; 2) failed to adequately explain to him the charges to which he was about to plead, or to advise him that by pleading, he would waive his 5th Amendment rights; 3) threatened and misled him into believing that he would receive a short prison term with work release by pleading guilty, and made him believe that he had made a plea bargain to this effect; 4) failed to advise him that if he wished to challenge the sentences, either because the lower court failed to comply with the alleged plea bargain, or on other grounds, he would have to file a petition to withdraw his plea.[2]
In Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (footnotes omitted), our Supreme Court summarized *530 the guidelines in cases involving ineffective assistance of counsel:
It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable. Washington v. Maroney, supra, but whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. O'Neal Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979); Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369, 1371-72 (1979); Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979); Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). If a reasonable basis for counsel's trial strategy decision exists, that decision is imputed to the client. Commonwealth v. *531 Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973). Moreover, the fact that an ineffective assistance of counsel claim is entertained in a direct appeal, rather than in a collateral attack upon a judgment of sentence, does not relieve the party asserting the claim of providing a record which will support the contention.
486 Pa. at 107-108, 404 A.2d at 380 (footnotes omitted).
In the present case, such a record has not been provided to us. When it is impossible to determine from the record whether or not the actions of defense counsel had a rational basis, an appellate court will remand for an evidentiary hearing to establish counsel's reasons for his course of action. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Jackson, 267 Pa.Super. 63, 405 A.2d 1304 (1979); Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410 (1978). Therefore, we shall remand this case to the lower court for an evidentiary hearing on the alleged incompetency of counsel. After the lower court has conducted the hearing and ruled on the issue of the public defender's alleged ineffectiveness, either side may take a new appeal.
So ordered.
NOTES
[1] Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.C.S. § 780-113(a)(30) (Purdon's Supp. 1979-80).
[2] Ordinarily, in order to challenge the validity of a guilty plea, the defendant must file a petition to withdraw the plea in the trial court that accepted it. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975). Failure to file such a petition constitutes a waiver of the right to challenge the validity of the plea on appeal. Commonwealth v. Roberts, supra. However, it is also settled that if the trial court has failed to inform the defendant of his right to file such a petition, as well as the consequences of failure to do so, an invalid waiver of the right to jury trial will be conclusively inferred. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Marzik, 255 Pa.Super. 500, 388 A.2d 340 (1978).
In the present case, after pronouncing sentence, the court stated: Oh, you have the right to appeal from this Sentence, Mr. McGarry, on the three grounds stated by the District Attorney; that is, first upon the validity of your plea, second the jurisdiction of this court to impose Sentence, and finally the legality of the Sentence imposed. If you wish to enter an appeal and cannot afford an attorney to represent you, this Court will appoint one to represent you free.
THE DEFENDANT: How much time do you have to file one?
THE COURT: Thirty days. Very well.
(N.T. 17)
There is no indication in the record that appellant was ever made aware of the requirement to file a petition to withdraw his guilty plea as a condition of challenging the validity of the plea. In such a situation, we have in other cases remanded to allow the defendant to file a petition to withdraw his plea nunc pro tunc, thereby giving the trial court the first opportunity to rule on the underlying waiver issue. Commonwealth v. Johnson, supra; Commonwealth v. Kitis, 241 Pa.Super. 537, 358 A.2d 73 (1976); Commonwealth v. Velasquez, 238 Pa.Super. 368, 357 A.2d 155 (1976). Here, however, appellant's challenge to his guilty plea is based on ineffectiveness of counsel. We shall therefore follow the procedures that govern a direct appeal based on ineffectiveness claims.
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281 Pa. Superior Ct. 45 (1980)
421 A.2d 1139
Richard G. GROSS, Appellant,
v.
Helen A. GROSS.
Superior Court of Pennsylvania.
Argued April 16, 1980.
Filed August 22, 1980.
*47 Edgar J. Cooke, Bellevue, for appellant.
Robert A. Banks, Ambridge, for appellee.
Before SPAETH, WICKERSHAM and LIPEZ, JJ.
SPAETH, Judge:
This is an appeal from an order denying appellant-husband a divorce based upon indignities to the person.[1]
On July 11, 1977, the husband filed a complaint for a divorce, alleging indignities. On October 17, he filed an amended complaint that alleged desertion in addition to indignities. The lower court appointed a master, who held a hearing on July 28, 1978. On May 14, 1979, the master filed a report recommending that the husband be granted a divorce on the grounds of indignities. On September 4, the lower court sustained the wife's exceptions to the master's report and denied the husband a divorce. He has now brought this appeal.
In Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980), this court stated:
On an appeal from a divorce decree, we are obliged to make an independent review of the record. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927). However, "[a] report of a master who has had the advantage of seeing and hearing the parties and their witnesses, is, nevertheless, to be given fullest consideration." Vautier v. Vautier, 138 Pa. Super. 366, 367, 11 A.2d 207, 208 (1939). See also Lyons v. Lyons, 116 Pa.Super. 385, 176 A. 792 (1935).
*48 To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable and his or her life burdensome. Steinke v. Steinke, 238 Pa.Super. 74, 85-87, 357 A.2d 674, 680-81 (1976) (SPAETH, J., concurring) (collecting cases). Although no general rule can be formulated as to what constitutes indignities in a particular case, the matter being one that depends upon all the circumstances of the particular case and the position in life, character, and disposition of the parties, Margolis v. Margolis, 201 Pa.Super. 129, 133, 192 A.2d 228, 230 (1963), our cases hold that proof of "vulgarities, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule" may be sufficient to make out a case for divorce based on indignities. Barton v. Barton, 248 Pa.Super. 278, 283, 375 A.2d 96, 98 (1977). See also Bristol v. Baranyi, 259 Pa.Super. 418, 393 A.2d 897 (1978). Moreover, several of these factors "may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient." Barton v. Barton, supra [248 Pa.Super.] at 283, 375 A.3d at 98. Finally, it should be noted that the burden of proving indignities was on the husband as the party seeking the divorce, Mintz v. Mintz, 258 Pa.Super. 187, 392 A.2d 747 (1978); Taddigs v. Taddigs, 200 Pa.Super. 29, 186 A.2d 455 (1962), and that the husband was required to prove that he was an innocent and injured spouse, Mintz v. Mintz, supra.
Among the master's findings were the following. The parties were married on July 20, 1957, in Ambridge, Pennsylvania, and have two children, twin girls, Joyce and Janet, born on April 25, 1962. The marriage was troubled from the outset. The parties lived with the wife's father and her daughter from an earlier marriage. When the parties moved into a new home in 1963, the wife and her father *49 excluded the husband from decision-making about household repairs. The wife had a "foul" mouth; she would commonly curse the husband in Croatian and call him a "no good Nazi bastard." The wife complained that the husband did not earn enough money as a mill worker and continued to complain even when he took part-time jobs as a mover, and later as a bartender. The parties had practically no sexual relations because the wife was continually afraid of getting pregnant. The wife offered no love and affection to her husband generally. When the parties' children were born, the wife called her husband "a dirty son of a bitch" for getting her pregnant and he shouldered most of the responsibility for taking care of the children. In 1964, the husband was offered a better paying job that would have involved a great deal of travel. His wife and her father objected to his taking the job, and the wife accused him of having another woman, which was not true. In 1965 or 1966, the wife befriended one George Markley, with whom she bowled on Saturday nights. After she introduced Markley to her husband, she announced to him that she and her father had decided to allow Markley to move into the house as a boarder. Although the husband liked Markley personally, he did not want a boarder in the house. In spite of the husband's objections, the wife and her father bought a bed for Markley and moved him into the house. The husband began to have suspicions that the wife was having an affair with Markley because he would drive home for lunch with the wife, even though the parties' home was 22 miles away from his job. The husband's suspicions were never confirmed, but in August 1966, about a month or so after Markley moved into the house, the wife hired an attorney who prepared a separation agreement and various papers transferring property to the wife. The husband signed the papers and moved out of the house five days later. After the parties separated, the husband began dating one Gloria Stefano, with whom he presently lives. In 1967, the parties reconciled and the husband moved back into the house. However, the relationship was no better than it had been previously and the husband left again in January 1968. A *50 second reconciliation occurred in March 1969, but the husband moved out again in June of that year after he saw his wife with another man. The parties have not lived together since then. While the parties were still living together, the husband got intoxicated a number of times, sometimes as a result of arguments with his wife. However, the husband did not miss any work, cause any damage to the house or property, or physically abuse his wife as a result of his drinking.
In denying the husband a divorce, the lower court stated that "(1) He became drunk on a number of occasions. (2) He came home at all hours of the night and stayed out all night on many occasions. (3) He carried on an affair with one Gloria Stefano." Slip op. at 2. After examining the master's findings in the context of the entire record, as we have independently reviewed it, we have concluded that the lower court did not give sufficient weight to the fact that the master found the husband's testimony credible and supported by other facts in the record, and the wife's testimony "simply not convincing." Where the credibility of a witness is concerned, the findings of the master should be given the "fullest consideration." Mintz v. Mintz, supra, 258 Pa.Super. at 190, 392 A.2d at 749. The husband's testimony was that he was drunk on a number of occasions before the parties finally separated, but that he did not miss any work, cause any damage to the parties' house, or physically abuse his wife as a result of his drinking, N.T. at 53-54; that he stayed out late and returned in a drunken condition on several occasions only after the parties initially separated; and that he stayed out all night only a couple of times. N.T. at 33. In order for a husband to be an "innocent and injured spouse" he need not be "wholly free from fault." O'Leary v. O'Leary, 264 Pa.Super. 253, 399 A.2d 763 (1979); Ryave v. Ryave, 249 Pa.Super. 78, 375 A.2d 766 (1977). Here, the instances where the husband drank too much or stayed out all night were minor in relation to the wife's continual "vulgarities, . . . studied neglect, intentional incivility, manifest disdain, abusive language, [and] malignant *51 ridicule" of her husband. Barton v. Barton, supra, 248 Pa.Super. at 283, 375 A.2d at 98. Finally, the husband testified that he only began seeing Gloria Stefano after he was initially separated from his wife. By that time his wife had already committed indignities that would justify a divorce, and any acts of adultery on the part of the husband that occurred thereafter would not change his status as an "innocent and injured spouse." Ryave v. Ryave, supra, 249 Pa.Super. at 85, 375 A.2d at 769.
Order of the lower court vacated. Appellant is granted a divorce based on indignities.
NOTES
[1] See Act of May 2, 1929, P.L. 1237, § 10 as amended, 23 P.S. § 10 (Purdon's 1955) (repealed 1980). The new divorce code, which became effective July 1, 1980, specifically states that its provisions "shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act." Since the parties have not sought to have the new law applied, we decide this case under the law existing at the time the complaint was filed, that is, the Act of 1929 as amended by the Act of March 19, 1943, P.L. 21, § 1.
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176 N.J. Super. 1 (1980)
421 A.2d 1016
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES F. JOHNSON, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued September 16, 1980.
Decided October 8, 1980.
*2 Before Judges MICHELS, ARD and FURMAN.
John S. Redden, Assistant Essex County Prosecutor, argued the cause for appellant (John J. Degnan, Attorney General, attorney; Donald S. Coburn, Essex County Prosecutor, of counsel).
Lawrence Bitterman, Assistant Deputy Public Defender, argued the cause for respondent (Stanley C. Van Ness, Public Defender, attorney).
The opinion of the court was delivered by FURMAN, J.S.C. (temporarily assigned).
On this appeal by the State from a judgment of resentence by the three-judge resentencing panel, the State contends that the panel, which was constituted by a directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)), exceeded its authority and misapplied statutory and decisional law in granting defendant's motion for a resentence under N.J.S.A. 2C:1-1 d(2) of the Code of Criminal Justice.
N.J.S.A. 2C:1-1 d(2) provides for the reduction or modification "for good cause shown" of sentences of imprisonment imposed prior to the Code's effective date for offenses which are eliminated or downgraded in the code.
*3 The State contends on appeal that (1) good cause was not shown by defendant or specifically found by the panel, and without good cause no reduction in defendant's sentence could be ordered; (2) the panel erroneously determined the equivalent or congruent offense to impairing the morals of a minor (N.J.S.A. 2A:96-3), of which defendant had been convicted, and (3) the modification to concurrent and not consecutive sentences was not mandated by State v. Clark, 65 N.J. 426 (1974), on which the panel erroneously relied.
Defendant raises a fourth issue: that the State has no right of appeal because of the bar of the double jeopardy clause of the Fifth Amendment to the Federal Constitution, which is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
Defendant, now 56, has a criminal record dating back to 1941. His sentences for four sex-related crimes which occurred within a four-month period in late 1961 and early 1962 and for another sex-related crime which occurred in 1975 are the subject of this appeal.
Defendant pleaded guilty in 1962 to an accusation charging him with rape, in violation of N.J.S.A. 2A:138-1, and to three accusations charging him with assault with intent to commit rape, in violation of N.J.S.A. 2A:90-2. The victims were all elderly women. He was sentenced under the Sex Offender Act, N.J.S.A. 2A:164-3, to an indeterminate maximum 30-year term for rape and to three indeterminate maximum 12-year terms for assault with intent to commit rape. All terms were consecutive, an aggregate maximum of 66 years.
In April 1974 defendant was released on parole. Several months later he was indicted for impairing the morals of a minor, in violation of N.J.S.A. 2A:96-3, and for abduction, in violation of N.J.S.A. 2A:86-3. He admitted that he offered money to the victim, a 12-year-old girl, whom he had heard was a prostitute, and, when she refused him, hugged and kissed her to try to arouse her. On a plea bargain he pleaded guilty only *4 to impairing the morals of a minor and was sentenced to an indeterminate maximum term of three years under the Sex Offender Act, consecutive to his other sentences, on which he was recommitted for parole violation.
On a motion for post-conviction relief defendant was granted a resentence in September 1979 by Judge Dios in accordance with State v. Clark, supra. His three sentences for assault with intent to rape were made concurrent to his sentence for rape and to each other. All these offenses, closely related in time and in circumstances, were determined to have resulted from the same causes and aberrations. Judge Dios's resentencing judgments were not appealed.
Accordingly, at the time of his motion to the three-judge resentencing panel in November 1979 defendant was serving an aggregate maximum 33-year indeterminate term, 30 years for the four crimes to which he pleaded guilty in 1962 and 3 years for the crime to which he pleaded guilty in 1975. Because of his commitments under the Sex Offender Act, he is confined to the Adult Diagnostic and Treatment Center at Avenel.
The three-judge resentencing panel after oral argument determined that the equivalent or congruent crime under the Code to rape under Title 2A is aggravated sexual assault, N.J.S.A. 2C:14-2. That determination of equivalency is not challenged on appeal. The panel imposed a maximum 20-year sentence for a crime of the first degree and continued defendant's commitment to the Adult Diagnostic and Treatment Center.
The panel also determined that the equivalent or congruent crime under the Code to impairing the morals of a minor under Title 2A is endangering the welfare of a child, N.J.S.A. 2C:24-4. That determination of equivalency is challenged on appeal. The panel imposed a maximum 18-month sentence for a crime of the fourth degree, suspended that sentence and made it concurrent to the maximum 20-year term for aggravated sexual assault. In imposing and suspending this sentence the panel noted in the oral opinion by Judge Yanoff that under the Code defendant *5 would not be subject to commitment to the Adult Diagnostic and Treatment Center for the offense of endangering the welfare of a child, and that continued confinement in the Center and not in State Prison would be preferable because of the course of therapy defendant had undergone over many years. The order that the lesser sentence be concurrent and not consecutive to the sentence for aggravated sexual assault is challenged on appeal.
In addition, at issue on appeal is whether defendant met the statutory prerequisite of good cause prior to resentencing under N.J.S.A. 2C:1-1 d(2), both for aggravated sexual assault and for endangering the welfare of a child.
The initial issue to be resolved is the State's right of appeal. Defendant urges the bar of double jeopardy, not because of risk of a retrial but because a reimposition of his original sentence aggregating a maximum of 33 years would exceed the maximum 20-year sentence imposed in the judgment of resentence and expose him to double punishment for one criminal offense in violation of the Fifth Amendment.
Sentences are appealable by the State for illegality, e.g., failure to impose a mandatory minimum penalty (State v. Sheppard, 125 N.J. Super. 332, 336 (App.Div. 1973), certif. den. 64 N.J. 318 (1973)), and reviewable by the State for clerical error (State v. Matlack, 49 N.J. 491, 501 (1967), cert. den. 389 U.S. 1009, 88 S.Ct. 572, 91 L.Ed.2d 606 (1967)).
In the Code of Criminal Justice, N.J.S.A. 2C:44-1 f(2), the State is granted the right of appeal from a sentence to a term appropriate to a crime one degree lower than that of the crime of which a defendant was convicted.
In urging its right of appeal the State relies on State v. Williams, 139 N.J. Super. 290 (App.Div. 1976), aff'd o.b. 75 N.J. 1 (1977), which recognized the State's right of appeal from an order pursuant to R. 3:21-10 suspending sentence and placing defendant on probation conditional upon his entry into and successful completion of a drug rehabilitation program. The *6 opinion set forth at 139 N.J. Super. 298 that double jeopardy does not bar appeal by the State from a post-verdict ruling "where there is no possibility that an appellate decision would require further proceedings to resolve fact issues involving the underlying crime." That language is applicable to the appeal before us. In accordance with State v. Williams, R. 2:3-1(b)(4) provides that the State may appeal a judgment in a post-conviction proceeding collaterally attacking a sentence.
In State v. Barnes, 84 N.J. 362 (1980), the Supreme Court upheld the State's right to appeal from a County Court judgment reversing municipal court convictions, based upon a determination of the unconstitutionality of an ordinance.
United States v. DiFrancesco, 604 F.2d 769 (2 Cir.1979), cert. granted 444 U.S. 1070, 100 S.Ct. 1012, 62 L.Ed.2d 751 (1980), is relied on by defendant as authority barring the State's appeal from a lawfully imposed sentence as an infringement of the constitutional guarantee against multiple punishments for the same offense. DiFrancesco struck down as unconstitutional 18 U.S.C.A. § 3576, which authorizes appeal by the United States for abuse of discretion from a sentence imposed after a proceeding establishing a defendant as a dangerous special offender. Its holding conforms to dicta in United States Supreme Court opinions, including United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Ex parte Lange, 18 Wall 163, 85 U.S. 163, 173, 21 L.Ed. 872 (1874).
In Ex parte Lange the Supreme Court stated the constitutional principle: "... the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it."
In our view DiFrancesco does not foreclose the State's right of appeal for legal error from a judgment of resentence pursuant to N.J.S.A. 2C:1-1 d(2). The right to apply for resentencing is a legislative dispensation. Among the states which have adopted the Model Penal Code none except New Jersey has enacted a *7 provision for resentencing on motion when the crime of which the imprisoned person was convicted was eliminated or downgraded in the code as enacted. There is no constitutional right to a resentence. State v. McDermott, 175 N.J.Super 334 at 340 (App.Div. 1980).
Illegality in the resentence is reviewable under State v. Sheppard, supra, including legal error in the determination of the equivalent Title 2A crime under the Code or of the statutory prerequisite of good cause for resentencing. No resolution of disputed facts by the resentencing panel is challenged on the appeal before us.
Defendant availed himself of the newly enacted statutory procedure in N.J.S.A. 2C:1-1 d(2). A reversal of the judgment of resentence on appeal by the State would have the result of continuing in effect his prior sentences, consistent with the law when he was sentenced. We cannot equate that result, which would be reached for legal error, with double punishment for the same crime within the interdiction of the Fifth Amendment. We conclude that this appeal by the State is not barred by double jeopardy.
The next issue for resolution is whether defendant met the statutory prerequisite of good cause in N.J.S.A. 2C:1-1 d(2) before the resentencing panel. The specific statutory language is "... the court may impose a new sentence, for good cause shown as though the person had been convicted under the code."
Defendant argues in effect that he has a statutory right to a resentence because the maximum terms of imprisonment for the Title 2A crimes of which he was convicted exceed the maximum terms of imprisonment for the equivalent crimes under the code. According to this argument, disparity in sentence is sufficient good cause to meet the statutory prerequisite.
We disagree. According to the legislative intent expressed in a statement of the Senate Judiciary Committee, the *8 imposition of a resentence was to be discretionary rather than mandatory. Statement of Senate Judiciary Committee to S738, May 15, 1978 at 1-2. We are of the view that the phrase "good cause" is not surplusage and that defendant in moving for a resentence has the burden of showing good cause beyond mere disparity in sentence between Title 2A and the Code.
We need not delineate precisely the bounds of good cause. Obviously the aggravating and mitigating factors to be taken into consideration in original sentencing (N.J.S.A. 2C:44-1) should be weighed. A persistent offender, as defendant has been, may be subject under N.J.S.A. 2C:44-3 to a sentence to an extended term of imprisonment beyond the maximum in the code. The most relevant factors in the determination of good cause should bear on any past criminal record, the nature and circumstances of the crime for which resentencing is applied for, its violence, heinousness or depravity, any parole violations, and the risk that the applicant for resentencing will commit another crime, in particular if the result of resentencing is that his release from imprisonment is advanced to an early future date. These criteria are negative, tending to rebut good cause without which a resentence may not be granted under N.J.S.A. 2C:1-1 d(2).
Defendant's release would be imminent under the judgment on appeal which fixes a 20-year maximum on a term of imprisonment starting in 1962. In addition, because his concurrent sentences would be under the Code, defendant would be eligible for work and good behavior credits, which he was not eligible for as a committed sex offender under N.J.S.A. 2A:164-3.
In the hearing before the resentencing panel defendant failed to offer any factual support for a determination that there was good cause to resentence him. When asked whether he wished to be heard on good cause, his attorney replied, "I don't think there's much that can be said."
*9 The resentencing panel made no reference to good cause in its oral opinion and reached no determination of good cause for resentencing. In the context whether the maximum or presumptive sentence for rape should be imposed, the oral opinion stated that the panel had considered the aggravating and mitigating factors in N.J.S.A. 2C:44-1.
Weighing against a determination of good cause are defendant's past criminal record, including his convictions of robbery with a firearm, breaking and entry, assault and battery, larceny, assault with intent to steal and entry with intent to steal prior to his rape and assault convictions in 1962, his two parole violations, his further sexual offense involving physical contact with a 12-year-old girl within several months of his release on parole in 1974, and the recommendations by the Special Classification Review Board, upon review at six-month intervals since his recommitment in 1975, that he should continue his confinement to in-patient treatment as a repetitive and compulsive sex offender.
We conclude that the resentencing panel committed legal error in resentencing defendant without a showing of good cause and that its judgment is jurisdictionally deficient in failing to reach a determination of good cause and should be reversed.
Accordingly, we need not resolve the remaining issues raised: whether the crime of impairing the morals of a minor under N.J.S.A. 2A:96-3, as committed by defendant, is the equivalent of endangering the welfare of a child under N.J.S.A. 2C:24-4, and whether his sentence for that offense should have been made concurrent to his sentence for rape.
We therefore reverse and vacate the judgment of the resentencing panel. We reinstate the resentences imposed by Judge Dios on September 28, 1979 and the sentence imposed by Judge Deegan on March 15, 1976, which is consecutive to the resentences imposed by Judge Dios.
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421 A.2d 1299 (1980)
Paul MEACHAM and Annette Meacham
v.
KAWASAKI MOTORS CORP., INC., Aris Hirotake Shoten Co. and Accessories Distributing, Inc.
No. 316-79.
Supreme Court of Vermont.
September 11, 1980.
*1300 John J. Welch, Jr., Rutland, for plaintiffs.
Thomas W. Costello of Webber & Costello, Rutland, for Accessories Distributing, Inc.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
HILL, Justice.
Plaintiff appeals the denial of his motion for new trial of a personal injury action in superior court. Plaintiff was injured in a motorcycle accident. He charged defendant, the distributor of his motorcycle helmet, with failure to exercise proper care in the design, manufacture, preparation and sale of the protective headgear.
Pursuant to V.R.C.P. 26(b)(4)(A)(i), plaintiff served interrogatories on defendant requesting inter alia that the experts expected to be called for trial be identified and that the substance of the fact and opinions of their testimony be stated. Defendant's answer named, among others, Dr. Jim Newman as a possible witness and said he might testify to "opinions relative to the forces, pressures or actions which could produce a rivet damaged similar to the damaged rivet with the Meachem helmet."
In fact Dr. Newman did testify. He followed the appearance of plaintiff's own expert witness, Dr. Egor Paul, taking the stand out of order, by agreement. After identifying the qualifications of Dr. Newman, the following exchange occurred:
Q. Were you here yesterday when Dr. Paul testified?
A. Yes, I was.
Q. And did you observe him explain to the jury the design of this helmet by using an exhibit, plaintiff's 8?
A. Yes, I did.
Q. Now that's [sic] [plaintiff's 8] been admitted, and could you explain the design in any way different or confirm his explanation of it?
Plaintiff objected, claiming the question asked for a response not contemplated by the answer to the interrogatories. V.R.C.P. 26(e)(2). In overruling plaintiff's objection, the judge noted that Dr. Paul was scheduled to return and could respond to Dr. Newman's testimony. Plaintiff continued with the trial.
The jury returned a verdict for defendant. Plaintiff argues that allowing the expert witness to testify on a subject which he claims exceeded the area delineated in defendant's answer to the interrogatories was "inherently unfair." Alleging a failure to amend a prior response to interrogatories, per V.R.C.P. 26(e)(2), plaintiff moved for a new trial. From a denial of that motion, plaintiff appeals. We affirm.
We need not reach the issue of whether defendant's expert witness exceeded the scope of testimony represented in pretrial discovery. Our basis for decision assumes that it did. Nor are we concerned with defendant's motion in the lower court for a judgment notwithstanding the verdict since denial of that motion was not briefed for this appeal.
V.R.C.P. 59 and V.R.C.P. 60(b) allow a court to relieve a party or his legal representative of a final judgment for reason of unfair surprise. However, it is a well-established principle that the failure to request a continuance at the time of surprise, except under extraordinary circumstances, serves as a waiver of the party's right to ask for a new trial. Bradley v. Kelley, 105 *1301 Vt. 478, 488-89, 168 A. 554, 558 (1933); Shields v. Vermont Mutual Fire Insurance Co., 102 Vt. 224, 252, 147 A. 352, 364 (1929); Hemmenway v. Lincoln, 82 Vt. 465, 466, 73 A. 1073 (1909); Briggs v. Gleason, 27 Vt. 114, 116 (1854). As the Court noted in Briggs, supra, at 116:
If a party is surprised on trial, it is much more proper for him to make it a ground for an application for a continuance of the case, in the sound discretion of the court, then to lay by, and if cast in the suit to seek to open the cause anew by petition for a new trial. And indeed, I should apprehend, it must be a strong case which would induce the court to grant a new trial, where the party neglected, at a proper time, to move for a continuance.
And more recently in Bradley, supra, 105 Vt. at 488-89, 168 A. 554:
[I]f the plaintiff was surprised, he was surprised then, and should have applied to the court for a continuance so that he might have had time and opportunity to prepare for that issue; that since the plaintiff chose to go along without requesting a continuance he is bound by his election, and it is too late now to ask for a new trial.
We do not minimize the need for proper discovery procedures nor provide an out for improper practice. As noted in United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958), modern instruments of discovery and pretrial procedures "make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." But a litigant cannot use as grounds for a new trial a problem which could have been cured at the time it arose.
Plaintiff took no affirmative step to repair any adverse effects of the alleged surprise. He did not ask the court for a continuance, recess or adjournment in order to depose Dr. Newman or otherwise prepare for the testimony. Nor has he shown extraordinary circumstances warranting an exception to the general rule. We recognize that the Vermont cases holding that a failure to ask for a continuance when presented with surprise evidence serves as a waiver of the right to use those grounds for a new trial predate the 1971 promulgation of the Vermont Rules of Civil Procedure. However, there is nothing in those rules which lead us to believe that this policy has in any way been altered. See 48 F.R.D. 487, 508.
Another ground exists for affirming the lower court's denial of the motion for a new trial. A timely motion for a new trial, pursuant to V.R.C.P. 59 and V.R.C.P. 60, is addressed to the sound discretion of the trial court. Houghton v. Leinwohl, 135 Vt. 380, 382, 376 A.2d 733, 736 (1977); Kotz v. Kotz, 134 Vt. 36, 40, 349 A.2d 882, 885 (1975); 6A Moore's Federal Practice ¶ 59-08[5], at 59-154 (2d ed. 1979). The burden of showing an abuse of discretion is on the movant, and this Court will indulge every reasonable presumption in favor of the trial court's decision. Waitt v. Waitt, 137 Vt. 374, 375, 406 A.2d 395, 396 (1979); Houghton, supra, 135 Vt. at 382, 376 A.2d 733. No abuse of discretion is shown on the record before us.
Judgment affirmed.
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279 Pa. Superior Ct. 313 (1980)
421 A.2d 215
SHOHOLA TOWNSHIP BOARD OF SUPERVISORS and John E. Quinn and Gudrun K. Quinn, his wife
v.
George L. BISHOP and Madeline Bishop, his wife.
Appeal of SHOHOLA TOWNSHIP BOARD OF SUPERVISORS.
SHOHOLA TOWNSHIP BOARD OF SUPERVISORS and John E. Quinn and Gudrun K. Quinn, his wife
v.
James J. WHITE and Florence White, his wife.
Appeal of SHOHOLA TOWNSHIP BOARD OF SUPERVISORS.
Superior Court of Pennsylvania.
Argued September 12, 1979.
Filed April 25, 1980.
*315 Jack G. Linshaw, Milford, for appellants.
Carl Leventhal, Hawley, for appellees.
Before SPAETH, HESTER and CAVANAUGH, JJ.
SPAETH, Judge:
This appeal arises from an order sustaining preliminary objections to two complaints in equity. The complaints are substantially identical and were filed on April 13, 1978, by the Shohola Township Board of Supervisors and John and Gudrun Quinn, one against George and Madeline Bishop, the other against James and Florence White.
The allegations on the basis of which the Quinns seek relief may be summarized as follows. The Quinns are owners of a campsite in Shohola Falls Trails End, a subdivision that had been established for campsites; the Bishops and Whites are owners of other campsites in the subdivision. The deeds of each of these owners is restricted explicitly by a declaration of restrictions that had been previously recorded by Greenbriar Development Company, the developer and original owner of the subdivision. One of the restrictions in the declaration states that "[n]o structure of any type shall *316 be erected, placed or permitted to remain on any campsite." The Bishops have violated this restriction by erecting on their campsite a building, thirty feet by eight feet, attached to a trailer; the Whites have violated it by erecting on their campsite a frame construction twenty feet by eight and a half feet, a shed ten feet by seven feet, and a trailer twenty feet by seven and a half feet. Both the Bishops and the Whites have been notified in accordance with the declaration of restrictions, but they have not removed the offending structures. As a result, the Quinns, exercising their rights under the declaration of restrictions, seek injunctive relief.
The allegations on the basis of which the Shohola Township Board of Supervisors seeks relief may be summarized as follows. On July 7, 1972 (a date prior to the purchase of campsites by any of the property owners involved in this suit but subsequent to the recording of the declaration of restrictions), the Greenbriar Development Company applied to the Board of Supervisors for a zoning variance to permit the development of Shohola Falls Trails End as a subdivision for campsites. The Board granted the variance but on the condition that the density of the subdivision not exceed six campsites per acre, that no campsite be smaller than 4,500 square feet, that all lots in the subdivision be subject to the recorded declaration of restrictions, and that the development company post a $2,500 bond to ensure the enforcement of the declaration of restrictions.[1] By erecting structures on their campsites and thus violating the declaration of restrictions, the Bishops and the Whites also violated the conditions imposed by the Board of Supervisors on its grant of a variance to Greenbriar. As a result, the Board seeks injunctive relief.
*317 The Bishops and the Whites filed preliminary objections to the complaints, alleging 1) that the Board of Supervisors could not enforce the declaration of restrictions and therefore under Pa.R.C.P. 2002(a) was not a real party in interest, and 2) that the Board's sole remedy for a violation of the declaration of restrictions was to call the bond posted by Greenbriar.[2] The Board and the Quinns filed answers to the preliminary objections, maintaining that the Board had "standing to enforce restrictive covenants which formed a part of the Variance" granted to Greenbriar, and denying that the Board's sole remedy was to call the bond posted by Greenbriar. Briefs on the preliminary objections were submitted, and on January 31, 1979, after oral argument, the lower court sustained the objections and ordered the Board removed from the record as a party plaintiff.[3] The Board then filed two separate appeals in the Commonwealth Court, one from the lower court's order removing it from the suit against the Bishops, the other from the order removing it from the suit against the Whites. The Bishops filed a motion to quash the Board's appeal in the suit against them. On March 29, 1979, both of the Board's appeals and the Bishops' motion to quash were transferred from the Commonwealth Court to this court pursuant to 42 Pa.C.S.A. § 5103(a) (1979 Pamphlet). The appeals were consolidated, and on April 19, 1979, this court denied the motion to quash.
In arguing that the Board is not a real party in interest, the Bishops and the Whites ignore material allegations in the complaints. While we might agree that the Board could not bring suit to enforce the declaration of restrictions were the declaration not a condition imposed on *318 the variance granted by the Board to Greenbriar, the complaints allege that the declaration was such a condition.[4] There can be no doubt that the Board in granting the variance had the power to impose as prerequisites to the grant reasonable conditions, restrictions and safeguards in furtherance of public health, safety and welfare. E.g., Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149 *319 A.2d 63 (1959); Cornell Uniforms, Inc. v. Township of Abington, 8 Pa.Cmwlth. 317, 301 A.2d 113 (1973); 53 P.S. § 10912 (1972). See also Butler v. Derr Flooring Co., 4 Pa.Cmwlth. 341, 285 A.2d 538 (1971).[5] There can also be no doubt that the Board had the right to sue in equity to enforce those conditions when breached. See Upper Moreland Township v. Meade, 420 Pa. 613, 218 A.2d 271 (1966); 53 P.S. § 10617 (1972); Robert S. Ryan, Zoning Law and Practice in Pennsylvania § 9.4.21 (1970); cf. Board of Supervisors of West Brandywine Township v. Matlack, 38 Pa. Cmwlth. 366, 394 A.2d 639 (1978); County of Fayette v. Blout, 35 Pa.Cmwlth. 523, 387 A.2d 167 (1978). Given these principles, it follows necessarily that the Board is a real party in interest to the present suits. See Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950); Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Super. 565, 352 A.2d 148 (1975); Commonwealth, Dept. of Transportation v. Pa. Power & Light Co., 34 Pa.Cmwlth. 594, 383 A.2d 1314 (1978) (to be a real party in interest one must not merely have an interest in the result of the action but must be in such command of the action as to be legally entitled to give complete acquittance or discharge to the other party upon performance).
The lower court stated that the Board was not a real party in interest because "[h]ad [Shohola Township] originally adopted [the] restrictions [contained in the declaration of restrictions] as part of its zoning scheme, it would be doubtful whether it could withstand a judicial inquiry into its validity." This statement, however, confuses the issue of the Board's ability to be a party to the present suits with the issue of its right to secure relief upon its cause of action. Moreover, if we overlook the failure of the Bishops and the Whites to challenge the legality of the Board's conditions in *320 their preliminary objections, and assume that the lower court could have properly reached the merits of this issue, and further assume that the Board's imposition of the numerous detailed restrictions in the declaration was unreasonable and that as a result even those restrictions in the declaration that the Board might have reasonably imposed were voidable, still the lower court was confronted with the issue of whether the Bishops and the Whites could raise the illegality of the conditions as a defense in an enforcement proceeding. See Muncy Borough v. Stein, 440 Pa. 503, 270 A.2d 213 (1970); Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Mager v. Hilltown Township, 6 Pa.Cmwlth. 90, 293 A.2d 631 (1972), appeal dismissed, 411 U.S. 979, 93 S.Ct. 2273, 36 L.Ed.2d 955 (1973); Robert S. Ryan, Zoning Law and Practice in Pennsylvania § 9.4.21 (1970). None of these issues was recognized or discussed by the lower court (or by the parties), and we shall not consider any of them now.
In holding that the Board is a real party in interest, we do not intend to condone the pleading deficiencies that appear in the complaints. When the Board and the Quinns joined as party-plaintiffs in the suits against the Bishops and the Whites (as they were entitled to do so under Pa.R.C.P. 2229(a)),[6] they were required under Pa.R.C.P. 1020(b) to state their respective causes of action in separate counts of the complaints, each count preceded by a heading identifying the cause of action pleaded in that count. Had the Board and the Quinns followed these rules, much confusion might have been avoided as to the nature of the Board's cause of action against the Bishops and the Whites-i.e., was the cause of action premised upon the conditions the Board *321 placed on the variance granted to Greenbriar, or was it premised, as the Bishops and the Whites conceived, upon some vague notion that a police power exists entitling the Board to enforce any restrictive covenant that landowners might privately agree to. The remedy for poor pleading, however, was not the removal of the Board from the suits, but leave to the Board to amend its complaints. See generally William Penn Parking Garage v. Pittsburgh, 464 Pa. 169, 346 A.2d 269 (1975); Pa.R.C.P. 1033; Goodrich-Amram 2d § 1033:4.[7]
As regards the argument that the order of the lower court should be affirmed because the Board's sole remedy is to call the bond posted by Greenbriar, we understand this argument to be an assertion that by requiring Greenbriar to post bond in the amount of $2,500, the Board agreed to limit its remedy for a violation of the conditions on the variance to an action on the bond, and to forgo the usual remedy of an action in equity. The Bishops and the Whites, however, point to no language either in the Board's order granting the variance or in any other document reflecting such an agreement. Nor have we discovered such language upon our review of the record.
The order of the lower court is reversed, and the case is remanded with instructions to the lower court to grant leave to the Board and the Quinns to amend their complaints, within such time as the lower court deems appropriate, so as to conform to Pa.R.C.P. 1020 and 1021.
NOTES
[1] This requirement was satisfied when $2,500 was deposited in the First National Savings Bank of Pike County on January 4, 1973. Subsequently, on April 11, 1973, an additional $2,500 deposit was made. This money has since been withdrawn by the Board, with the consent of Shohola Falls Trails End Property Owners' Association, the successor to Greenbriar Development Company, to defray the expenses of the present litigation.
[2] Actually, the Bishops' preliminary objections were so broadly worded that they seemed to attack both the Board's and the Quinns' ability to prosecute the suit against them. During argument before the lower court, however, the Bishops admitted that the Quinns could maintain their suit.
[3] Although the lower court has stated that its removal of the Board was based on its conclusion that the Board was not a real party in interest, the lower court's opinion shows that it also considered the claim that the Board's sole remedy was limited to the calling of the bond.
[4] We note that the Bishops and the Whites might have argued that the exhibits attached to the complaints refute the allegation in the complaints that the Board granted the variance to Greenbriar on the condition that the property owners in the subdivision be subject to the declaration of restrictions. The Board's order granting the variance states:
AND NOW, to wit, this 4th day of August, 1972 upon petition of Greenbriar Development Company, the Supervisors of Shohola Township grant the variance that the subdivision plans of a permanent campsite development known as "Shohola Falls Trail End" shall be authorized to contain a density of not more than six (6) campsites per acre, with no campsite smaller than 4,500 square feet.
It has been stated that to be effective, a condition "should be expressly stated in the board's order. A statement of intent by an owner does not necessarily bind the future and is not equivalent of a condition." Robert S. Ryan, Zoning Law and Practice in Pennsylvania § 9.4.18 (1970). See also Esterhai v. Zoning Board of Adjustment, 1 Pa.Cmwlth. 361, 274 A.2d 556 (1971); 82 Am.Jur.2d-Zoning and Planning § 260.
We also note, however, that Greenbriar's application for the variance stated that "the theme of all of said development is the permanent sale of campsites with use restricted by covenant to camping, and prohibiting the permanent use or construction of any bind [sic] on said campsite," and that all lots sold in any plan approved under the variance would be subject to the restrictions in the declaration of restrictions. The bond agreement signed by Greenbriar on September 16, 1972, in stating that the bond was to ensure the enforcement of the declaration of restrictions, further indicates that Greenbriar and the Board understood that the imposition of the declaration of restrictions upon the property owners of the subdivision was a condition of the variance. In a different context, the Commonwealth Court has held that all of the specifications and patent representations made in an application, site plan, and other documents submitted by the applicant for a building permit are an integral part of the approval and permit issued and may be considered in determining whether a building restriction exists. Pittsburgh v. Elman Associates, Inc., 6 Pa.Cmwlth. 1, 291 A.2d 813 (1972). See also Marriott Corp. v. Plymouth Township, 101 Montg.Cty.Reps. 84 (1976). Whether a similar result should obtain in the present case should not be decided in the absence of briefs and argument by counsel specifically addressing the issue.
[5] There may be some question as to the Board of Supervisor's power to grant the variance itself. See Board of Commissioners of McCandless Township v. Beho Development Co., Inc., 16 Pa.Cmwlth. 448, 332 A.2d 848 (1975); 53 P.S. § 11006(1)(d) (the granting of variances is exclusively a function of the zoning hearing board). The Bishops and the Whites, however, have not challenged the Board's power to grant the variance to Greenbriar.
[6] Pa.R.C.P. 2229(a) provides:
(a) Persons may join as plaintiffs who assert any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the rights to relief of all such persons will arise in the action.
[7] In particular, we note that even if the Board were misjoined with the Quinns in these suits, but cf. Philadelphia v. Wyszynski, 381 Pa. 153, 112 A.2d 327 (1955) (forty-seven property owners alleging that defendant's meatpacking plant was a nuisance allowed to intervene in equity proceeding brought by city against defendant for zoning ordinance violation); Molnar v. George B. Henne & Co., Inc., 377 Pa. 571, 105 A.2d 325 (1954) (city allowed to intervene in equity proceeding brought by property owners alleging defendant's machine shop was nuisance and violated zoning ordinance), the remedy would be to sever the Board's causes of action, not to dismiss the Board from the suits entirely. Pa.R.C.P. 2232(b); Goodrich-Amram 2d § 2232(b):1.
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777 F.Supp. 1040 (1991)
Juan Luis OLIVER, d.b.a. Funeraria J. Oliver, Plaintiff,
v.
Wilma HAAS, Estate of Edward C. Haas, Etc., Defendants.
Civ. No. 91-1385 (GG).
United States District Court, D. Puerto Rico.
August 15, 1991.
Héctor R. Cuprill, Ponce, P.R., for plaintiff.
Lasa, Escalera & Reichard, Maria Luisa Martinez, San Juan, P.R., for defendants.
OPINION AND ORDER
GIERBOLINI, Chief Judge.
Before the court is plaintiff's motion to remand and an opposition thereto filed by *1041 defendants. This case was commenced by plaintiff Oliver in the Ponce Superior Court on September 24, 1990, and removed by the defendants Mrs. Haas and the Haas Estate to this court on March 25, 1991. The issue is whether, in an action brought initially in state court and subsequently removed to federal court, a compulsory counterclaim may be used to satisfy the amount in controversy requirement of diversity jurisdiction.
I. BACKGROUND
The action originated after Edward Haas, who was vacationing with his wife on an ocean cruise, became severely sick and had to be flown to the Domas Hospital in Ponce for emergency surgery. Mr. Haas died the following day.
Plaintiff funeral services subsequently contracted with Mr. Haas' widow to have the body embalmed and prepared for transportation to the state of Ohio. The body, according to the defendants, arrived so badly deteriorated that Mr. Haas had to be buried in a closed casket, allegedly causing severe emotional distress to Mrs. Haas and heirs.
On September 24, 1990, plaintiff, a citizen and resident of Puerto Rico, filed a complaint in the Ponce Superior Court seeking to collect payment in the amount of $4,931.75, plus interest for the funeral services rendered. On March 25, 1991, defendants, all residents of the state of Ohio, filed a notice removing the case from the Ponce Superior Court to the United States District Court for the District of Puerto Rico on diversity jurisdiction grounds. In their reply to the plaintiff's complaint, the defendants denied all liability and asserted a counterclaim for $50,000.00 in compensatory damages and $1,000,000.00 in punitive damages due to plaintiff's alleged fraud, breach of contract, negligence, and professional negligence.
On May 1, 1991, plaintiff filed a two-page long motion to remand the case back to state court asserting that since defendant's counterclaims could not be used to satisfy the jurisdictional amount, the necessary amount in controversy had not been met.[1]
II. DISCUSSION
In their notice of removal, the defendants assert that the amount in controversy requirement of diversity jurisdiction may be satisfied by a compulsory counterclaim, and therefore removal to federal court was proper in this case. We disagree.
The statute governing removal of state actions to federal court, 28 U.S.C. Section 1441[2], states that original jurisdiction is needed in order for removal to be possible and proper. Ordinarily, the amount in controversy in original jurisdiction actions is determined from the plaintiff's complaint. Peoples Westchester Savings Bank v. Ganc, 705 F.Supp. 164 (S.D.N.Y.1989); Wiggins v. North American Equit. Life Assur. Co., 644 F.2d 1014 (4th Cir.1981); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938).
*1042 Thus, in determining whether a case is removable federal courts look to the plaintiff's complaint. Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769 (9th Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 580, 93 L.Ed.2d 582 (1986). We find that in this case the diversity of citizenship is present but the amount in controversy is not. Since plaintiff's complaint only specifies an amount in controversy totaling $4,931.75, which is far short of the $50,000.00 minimum required, there is no original jurisdiction and consequently no removal jurisdiction.[3]
The majority of the courts follow the rule the amount in controversy is determined by the plaintiff's complaint, stating that since the jurisdictional requirements apply to removed actions to the same extent as to original actions, no part of the required jurisdictional amount may be met by considering a defendant's counterclaim, whether permissive or compulsory. See, e.g., Michael F. Ronca and Sons, Inc. v. Monarch Water Systems, No. 90-5029, 1990 WL 140154 (E.D.Pa. Sept. 24, 1990) (LEXIS, Genfed library, courts); PS Group, Inc. v. Aladdin Engineering and Manufacturing, Inc., No. 90-4371, 1990 WL 122938 (E.D.Pa. Aug. 21, 1990) (LEXIS, Genfed library, courts), Video Connection of America v. Priority Concepts, 625 F.Supp. 1549 (S.D.N.Y.1986); Williams v. Beyer, 455 F.Supp. 482 (D.N.H.1978). If Congress had intended to allow the use of defendant's counterclaim in satisfying the jurisdictional amount, it would have explicitly stated so. Cabe v. Pennwalt, 372 F.Supp. 780 (W.D.N.C.1974). Although the so-called plaintiff's viewpoint rule may lead to undesirable results for defendants who may wish to litigate in federal court, it is within the province of the legislature and not the courts to make the necessary statutory changes, if any.
As to the authorities cited by the defendant, many of them are inapplicable. To illustrate, commentators have stated that the ambiguous holding in Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961), and the lack of later and more definitive decisions makes it is "difficult to the point of impossible to state the principles for which Horton stands." 14A Wright, Miller, and Cooper, Federal Practice and Procedure: Jurisdiction, Section 3706, at 128. Although there are many possible explanations for the holding, commentators generally agree that the court "recognized the general rule that the amount in controversy is determined from the complaint." Id. at 127.
Similarly, Fenton v. Freedman, 748 F.2d 1358 (9th Cir.1984), Motorists Mutual Ins. Co. v. Simson, 404 F.2d 511, cert. denied, 394 U.S. 988, 89 S.Ct. 1470, 22 L.Ed.2d 763 (1969), and Washington Scientific Industries, Inc. v. American Safeguard Corp., 308 F.Supp. 736 (D.Minn.1970) all dealt with obtaining original jurisdiction in federal court and not specifically with the concept of removal. One significant difference between a suit brought initially in federal court and one brought in state court is the plaintiff's original choice of venue, which as a general proposition controls.
Of the cases cited by defendants, only two concerned removal. Removal was allowed in Family Motor Inn, Inc. v. L-K Enterprises, 369 F.Supp. 766 (E.D.Ky. 1973), but only because it was an action seeking injunctive relief. In actions seeking such relief, the amount in controversy is usually measured by the value of the object in question or the cost of the protection sought. Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th Cir.1980), Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 347, 97 S.Ct. 2434, 2443, 53 L.Ed.2d 383 (1977). In the instant case there is no plea for injunctive relief; this is a contract-tort controversy.
In Hatridge v. Aetna Casualty Co., 415 F.2d 809 (8th Cir.1969) removal of a state court case that arguably did not satisfy the amount in controversy requirement *1043 was allowed. Nevertheless, as the Eight Circuit recognized, the facts of Hatridge show why an exception was carved out to the general rule that for removal purposes the amount in controversy is determined from the complaint.
In Hatridge, Mr. Hatridge and his wife were involved in a bus accident. They first brought suit against the bus driver in Arkansas state court and they recovered in a default judgment $60,000.00 for their injuries. Then, Mrs. Hatridge sued Aetna, the bus owner's insurance company, in Arkansas state court seeking to recover $9,999.99. After Aetna removed Mrs. Hatridge case to federal court, she moved to remand alleging that removal was improvident because the amount in controversy did not exceed the requisite minimum[4] for federal jurisdiction. The Eight Circuit held that removal was proper because Mrs. Hatridge's suit was inescapably dependent upon the claim of her husband, a claim over which the court had federal jurisdiction. In addition, the Eight Circuit took into consideration other factors, such as the appearance of forum shopping on behalf of the Hatridges and the apparent lack of good faith in pleading an amount that fell two cents short of the minimum required for federal jurisdiction.[5] In contrast, the claim before us is not inextricably dependent upon any other claim currently litigated in federal court. Nor is there any evidence of forum shopping or bad faith in the amount claimed by the plaintiff.
III. CONCLUSION
In view of the foregoing reasons, the instant action is hereby REMANDED to the Ponce Superior Court. Each party shall bear its own costs and attorney fees. The Clerk shall enter judgment accordingly.
SO ORDERED.
NOTES
[1] We note in passing the plaintiff cited no cases in support of his motion to remand. Apart from violating the essence of Local Rule 311.2 of the Local Rules of this District, we find that plaintiff's failure to cite any cases in his motion constitutes the kind of sloppy legal work that this court will not tolerate in the future.
[2] 28 U.S.C.S. Section 1441 states in relevant part:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (emphasis added).
28 U.S.C.S. Section 1332(a) states in relevant part:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between:
(1) Citizen of different states;
(2) citizens of a state and citizens or subjects of a foreign state; ....
(d) The word "states", as used in this section, includes the territories, the District of Columbia, and the Commonwealth of Puerto Rico.
[3] Nor can we say that there is any indication that plaintiff's limited the amount of damages in the complaint to avoid the removal of this case.
[4] At the time, the amount in controversy had to exceed $10,000.00. Therefore, the damages sought by Mrs. Hatridge in the complaint fell short for "the amount in controversy" requirement by two cents. In contrast, in this case the recovery sought by plaintiff, is only about $5,000.00 or about $45,000.00 less than the amount required for diversity jurisdiction.
[5] Although the Hatridge court discusses the defendant's viewpoint to determine the amount in controversy, it did not rest its decision on the utilization of the defendant's viewpoint. See 415 F.2d at 816 ("Accordingly, we do not feel free to place particular reliance, in our present decision, upon the cases, such as Ronzio, which utilize the defendant's standpoint approach."). Instead, the Eighth Circuit held that removal was proper based "upon the nature of Mrs. Hatridge's claim and its inescapable dependency upon that of her husband." Id. at 816.
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777 F.Supp. 405 (1991)
FEDERAL KEMPER INSURANCE COMPANY, Plaintiff,
v.
Daniel C. JONES, et al., Defendants.
No. 90-CV-1228.
United States District Court, M.D. Pennsylvania.
November 14, 1991.
*406 Karen S. Cooney, Metzger, Wickersham, Knauss & Erb, Harrisburg, Pa., for plaintiff.
David Keeffe, Sayre, Pa., for defendant Daniel C. Jones.
Pamela L. Shipman, Roesgen & Larrabee, Williamsport, Pa., for defendant Frederick E. Hanes and Frederick Hanes d/b/a Blue Spruce Farms.
MEMORANDUM
McCLURE, District Judge.
BACKGROUND
Federal Kemper Insurance Company ("Federal Kemper") filed this declaratory judgment action[1] against Frederick Hanes, individually and t/a Blue Spruce Farms, and Daniel Jones to ascertain its obligations under a comprehensive general liability policy issued to Hanes.[2] Jones was *407 injured in a November 25, 1985 farm accident when a modified tractor-trailer dump truck tipped and fell on him during an unloading operation. Jones filed a state court action against Hanes, and others, alleging strict liability, negligence and breach of warranty.[3] Jones alleges that Hanes modified the truck in a manner which made it unsafe. As Hanes' insurer, Federal Kemper denies any obligation to defend or indemnify him in the state court action under policy exclusions which negate coverage for injuries arising from completed operations or product hazards or from work performed by independent contractors. Federal Kemper bases its denial of coverage on the following undisputed facts.[4]
Hanes had the truck modified when he purchased it in 1979. The work, which consisted of lengthening the frame and installing an engine, was performed by the seller, Peffer Trucks, before Hanes took delivery. Hanes gave Peffer specifications, such as the dimensions of the body he intended to place on the frame and the weight of the gross load, but did not oversee the work and was not present when it was done. Immediately after Peffer's work was completed, the truck was inspected and then taken to Hostetler's Body Shop, where a dump-hoisted grain body was installed. Again, Hanes did not oversee the work, but did discuss his requirements, such as the capacity of the hoist, with Hostetler. Following completion of Hostetler's modifications, Hanes did not make any further modifications to the truck and used it on his farm[5] for three or four years without incident. When he no longer had use for it, he sold it as used equipment. It was subsequently purchased by Jones' employer, Clark Trucking Company, at an auction in 1983. (Record document no. 22, filed April 1, 1991, paras. 10-24; record document no. 28, filed April 30, 1991; and record document no. 27, filed April 30, 1991, pp. 3-4)
Based on these facts, which are undisputed, and on the provisions of the policy, Federal Kemper has filed a motion (record document no. 22, filed April 1, 1991) for summary judgment. For the reasons which follow, we find that the policy exclusion negating coverage for work performed by independent contractors applies and that Federal Kemper is not obligated to defend or indemnify Hanes in the state court action. Its motion for summary judgment will therefore be granted.
*408 DISCUSSION
A. Motion for summary judgment standard
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c) (Emphasis supplied).
... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, an on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, supra at 323 and 325, 106 S.Ct. at 2552-53 and 2553-54.
Issues of fact are "genuine only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988).
B. Pennsylvania insurance law
Interpretation of the policy and resolution of the question of Federal Kemper's duty to defend and indemnify are governed by Pennsylvania insurance law.[6] The presumptions which apply depend upon whether the policy language at issue is ambiguous or unambiguous. In deciding this question, courts should read the policy with an eye toward avoiding ambiguities and take care not to torture policy language to create uncertainties where none exist. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir.1982), (applying Pennsylvania law).
Policy language is ambiguous if reasonable persons could honestly differ as to its meaning, i.e. if it is susceptible of more than one meaning. If found to be ambiguous, the ambiguities are to be resolved in favor of the insured and in a manner consistent with his reasonable expectations when he contracted for coverage. This precludes insurers from insulating themselves from their contractual obligations by inserting "overly-subtle or technical interpretations" in an unfair attempt to defeat the reasonable expectations of *409 the insured. Harford Mutual Insurance Co. v. Moorhead, 396 Pa.Super. 234, 578 A.2d 492, 495 (1990),[7]alloc. denied, 527 Pa. 617, 590 A.2d 757 (1991). This rule favoring the insured applies even if the insured is a commercial or business entity, and therefore, presumably knowledgeable about contracts and their legal implications. Acands, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968, 973 (3d Cir.1985).
On the other hand, if policy language is found to be unambiguous, these presumptions do not come into play. Imperial Casualty & Indemnity Co. v. High Concrete Structures, Inc., 858 F.2d 128 (3d Cir.1988) (applying Pennsylvania law). The law gives effect to the plain language of the policy as written. Harford, supra, 578 A.2d at 495. In keeping with that principle, plainly-worded coverage exclusions are given effect so long as they are conspicuously displayed. There is no concomitant requirement that the insured have read or understood such exclusions. Pacific Indemnity Co. v. Linn, 766 F.2d 754, 761 (3d Cir.1985) and Berne v. Aetna Insurance Co., 604 F.Supp. 958, 960-61 (D.V.I.1985), aff'd per curiam, 782 F.2d 1026 (3d Cir. 1985). Policy language which is otherwise clear is not rendered ambiguous because it requires the insured to read thoroughly and carefully to grasp the coverage received. Viger v. Commercial Insurance Company of Newark, New Jersey, 707 F.2d 769, 774 (3d Cir.1983).
Linked to policy interpretation on the question of coverage is the derivative question of the duty to defend and indemnify the insured. The insurer is obligated to defend an action filed against its insured if the allegations may potentially come within policy coverage unless and until the insurer can confine the claim to a recovery outside the bounds of coverage. Imperial Casualty, supra, 858 F.2d at 131-32; Harford, supra, 578 A.2d at 494. Any doubts regarding the insurer's duty to defend must be resolved in favor of the insured. American Contract Bridge v. Nationwide Mutual Fire Insurance, 752 F.2d 71, 76 (3d Cir.1985) and D'Auria v. Zurich Insurance Company, 352 Pa.Super. 231, 507 A.2d 857 (1986).
Independent contractors' exclusion
The independent contractor exclusion in the Federal Kemper policy excludes coverage for injuries which arise out of "operations performed for the named insured by independent contractors or acts or omissions of the named insured in connection with his general supervision of such operations", with two exceptions not relevant here. The policy language is clear, and Hanes does not contend otherwise. Nor does he contend that the work performed at his behest by Peffer's and Hostetler's was done under his direct supervision.
Although Hanes did not admit in response to plaintiff's statement of undisputed facts that Peffer and Hostetler acted as independent contractors, he alleges that to be the case in his answer to Jones' complaint in the state court action.[8] Hanes' *410 admission in the underlying action precludes him from taking a different position in this action, and he does not seriously contest that issue, but takes a different tack in arguing that the exclusion does not apply.
Hanes argues that coverage exists because Jones' allegations can be construed as directed not only to the manner in which the modifications were made, but also to Hanes' own actions in hiring the contractors. As support for this argument, Hanes relies on Jones' allegation that Hanes was negligent in failing to consult "competent people to determine or otherwise insure" that the modified vehicle would be safe for its intended use.[9]
The Federal Kemper policy excludes coverage for injuries caused by acts or omissions of independent contractors as well as alleged acts or omissions of the named insured "in connection with his general supervision of such operations". This language brings Jones' allegations within the bounds of the exclusion, regardless of whether the culpable conduct is alleged to be acts of independent contractors or Hanes' own alleged negligence in failing to exercise proper supervision.
Moreover, the courts have rejected similar arguments attempting to differentiate between the results of the insured's conduct and the conduct allegedly responsible for such results. In St. Paul Surplus Lines Insurance Co. v. 1401 Dixon's, Inc., 582 F.Supp. 865, 867 (E.D.Pa.1984), the insurer argued that an assault and battery exclusion in the defendant's comprehensive liability policy applied to preclude coverage for allegations that business was negligent in failing "to prevent or stop" the fight in *411 which a patron was injured, in failing to summon the police and in generally failing to "maintain order in and around the premises". St. Paul, supra, 582 F.Supp. at 867. The insured argued that the exclusion did not apply, since the injured patron was alleging that the insured was negligent in allowing the assault and battery to occur. The court rejected this argument, stating
... Dixon's argument that under some set of facts the claim would be reduced to one for negligent supervision does not obtain the desired result. A cause of action based upon negligent supervision is functionally indistinguishable from the claims of negligence found in Baylock's complaint. Liability based upon either theory will be barred by ... that portion of the clause excluding injuries occasioned by the failure to stop or prevent an assault and battery.
St. Paul, supra, 582 F.Supp. at 868.
Sauter v. Ross Restaurants, Inc., No. 80-1202 (E.D.Pa. May 21, 1981) stands for the same proposition. Restaurant patrons were assaulted by defendant's "bouncer", and sued defendant in negligence for failing to supervise security personnel and for employing personnel with violent tendencies. The court held that an assault and battery exclusion precluded coverage. In so ruling, the court rejected defendant's argument that negligence, not assault and battery, caused the injury, stating:
It is undoubtedly true that for plaintiffs to recover in this suit, they must demonstrate that their injuries were caused by the allegedly negligent acts. But, although the injuries must, in this sense, have been caused by Ross' negligent acts, it does not follow that these same did not `aris[e] out of assault and battery.' Plaintiffs' real contention is that their injuries arose out of an assault and battery which, in its turn, arose out of Ross' negligence. Thus, plaintiffs' injuries are unambiguously excluded from coverage by the assault and battery exclusion.
St. Paul, supra, 582 F.Supp. at 867, quoting Sauter, supra, slip op. at 6. See also: Terra Nova Insurance Co. v. Thee Kandy Store, Inc., 679 F.Supp. 476, 478 (E.D.Pa. 1988).
Jones' injury arose out of a claimed defect in the truck. Phrasing his claim against Hanes in part in terms of a failure to supervise does not alter that fact, nor does it negate application of the independent contractor exclusion.
Although the policy presents the exclusions in the disjunctive, such that if a single exclusion applies, coverage is negated, we will, in the interest of completeness, address the applicability of the second exclusion raised by the insurer.
Products hazard exclusion
Products hazard coverage is intended
to protect the manufacturer or seller of goods from claims for injury and damage arising out of the use of the insured's products. The risk which is being insured is that the product will not perform in the manner expected. If the product works as it is supposed to, but through other negligence the insured the insured's product causes injury or damage, there is no coverage. Thus, where Products Hazard Coverage is excluded, the insurer is not responsible for the failure of the insured's products or goods to work as anticipated."
Harford, supra, 578 A.2d at 496, quoting Brewer v. Home Insurance Co., 147 Ariz. 427, 710 P.2d 1082, 1086 (1985).
Federal Kemper's policy excludes coverage for injuries arising out of completed operations and product hazard. It defines "products hazard" as encompassing claims for injuries arising:
... out of the named insured's products or reliance upon a representation or warranty made at any time with respect thereto but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.
The policy defines "named insured's products" as:
*412 ... goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but `named insured's products' shall not include a vending machine, any property other than such container, rented to or located for use of others but not sold.
(Record document no. 21, Exhibit "C".) It does not define what constitutes "goods" or "products manufactured, sold, handled or distributed" in this context. The usual interpretation of those terms would encompass goods sold or distributed by the insured in the ordinary course of business, but not incidental sales of used equipment, office furniture and the like.
The issue before us is whether this exclusion applies to used equipment not sold in the ordinary course of business. Pennsylvania National Mutual Casualty Insurance Company v. Kaminski Lumber Co., 397 Pa.Super. 484, 580 A.2d 401 (1990), is directly on point. Kaminski Lumber Co. ("Kaminski") had a comprehensive liability policy with Pennsylvania National Mutual Casualty Insurance Company ("Pennsylvania National"). When Kaminski was sued for negligent failure to warn by an individual, Danny Toney, injured while operating a used saw purchased by his employer, which had formerly belonged to Kaminski, Pennsylvania National denied any obligation to defend or indemnify Kaminski, relying on a policy products hazard exclusion in his policy. The trial court rejected Pennsylvania National's argument, finding, inter alia, that the policy language was ambiguous since the term "product" was not clearly defined and that the exclusion did not apply since the claims made against Kaminski were grounded in negligence, not products liability.
The Pennsylvania Superior Court affirmed for the following reasons: (1) policy language delimiting the exclusion was ambiguous in failing to define what constitutes a product under the terms of the policy; (2) this ambiguity requires strict construction of the exclusion against the insurer in a manner consistent with the reasonable expectations of the insured; (3) the insured would reasonably have expected the exclusion to apply only to lumber, his stock in trade; and (4) sale of a used saw did not fall within the confines of the exclusion as construed. See also: Friestad v. Travelers Indemnity Company, 260 Pa.Super. 178, 393 A.2d 1212 (1978).
The Superior Court's findings in Kaminski offer a parallel for resolving the issue before us. All of the pertinent facts are the same. Federal Kemper's policy does not define what constitutes "goods" or "products manufactured, sold, handled or distributed" by the insured, rendering that portion ambiguous and meaning that it must be construed in a manner favorable to the insured and consistent with his reasonable expectations in contracting for coverage. We find, as did the Kaminski court,[10] that an insured would reasonably expect a products hazard exclusion to apply only to items sold in the ordinary course of business, i.e. his stock-in-trade, and not to the sale of used equipment or other items which are not his stock in trade and are sold only on an incidental basis. Since it is undisputed that used equipment was not Hanes' stock-in-trade, the products hazard exclusion does not apply in this context.
Completed operations exclusion
Completed operations coverage is a service company's equivalent of product hazard coverage. Companies in the business of providing services or performing contracts at premises other than their own, e.g. construction contractors or repair services, purchase such coverage to insure against liability arising from the services they perform for their customers. United States Fidelity and Guaranty Company v. Greater Essex Security, Inc., 248 N.J.Super. 105, 590 A.2d 262, 266-67 (1991) and Pacific Indemnity, supra, 766 F.2d at 764. See also: "Liability Coverage for Toxic Hazardous Waste Disposal and Other Pollution Exposures", 25 Idaho L.Rev. 567 (1989).
*413 Conversely, comprehensive policies which exclude such coverage do not insure against problems arising from work performed by the insured for a customer after completion of the work. The Federal Kemper policy excludes coverage for:
... operations or reliance on a representation or warranty made at any time with respect thereto ... if ... bodily injury ... occurs after such operations have been completed or abandoned and occurs away from the premises owned by or rented to the named insured ...[11]
Federal Kemper's policy does not define what "operations" performed by the insured fall within the confines of the exclusion. It does not specify whether the term "operations" includes only activities carried out by the insured in the normal course of business, e.g. services which the insured provides in the ordinary course of business, or whether its scope is broader. Because the provision is reasonably subject to more than one interpretation, it must be strictly construed in accordance with the reasonable expectations of the insured in contracting for coverage. Much the same rationale applies here as applied in construction of the products hazard exclusion. We find that an insured would reasonably expect a completed operation exclusion to apply only to services he provides or work he performs in the ordinary course of his business, and not to the modification of equipment done only on an incidental basis for purposes of rendering the equipment usable at his business. A more expansive interpretation would virtually negate coverage. The exclusion would swallow the policy if we were to construe "completed operations" as applying to any work performed by or at the request of the named insured. Since it is undisputed that Hanes was not in the business of modifying trucks or any other equipment, we find that the completed operations exclusion does not apply in this context.
NOTES
[1] 28 U.S.C. §§ 2201 et seq.
[2] The named insured is "Blue Spruce Farms, d/b/a Frederick Hanes. For the sake of brevity, we will refer to the insured simply as "Hanes".
[3] Jones vs. Hanes, Civil No. 87-0048 (Bradford Co., Pa.1987). Federal Kemper is defending Hanes in the underlying action subject to a reservation of rights.
[4] It is undisputed that the initial policy was modified by two endorsements, which took effect August 5, 1980, and expanded coverage to include farming and custom farming operations. (Endorsement Nos. GL 2211 and G603). There were no further substantive changes in the policy until November, 1982. At that time, a new declarations page was issued along with an annual renewal policy, which was essentially a continuation of the initial policy issued in 1979 as modified by the 1980 change endorsements.
Custom farming coverage was subsequently deleted in March, 1983. In December, 1984, coverage for the hay, grain, and feed operations was likewise deleted, leaving only the farm coverage in effect at the time of the accident. (Record document no. 22, filed April 1, 1991, paras. 42-48).
All of the foregoing facts are undisputed. (Record document no. 28, filed April 30, 1991, paras. 42-48). There is a dispute, however, as to whether Hanes had completed operations coverage at the time of the accident. It is Federal Kemper's position that:
The ... policy ... in effect from December 14, 1984 through December 14, 1985 contained a completed operations and product hazard exclusion and such exclusions were part of the policy since the time is [sic] was originally issued in 1979.
(Record document no. 22, filed April 1, 1991, para. 49). Defendants dispute this statement. It is their position that the farm endorsement (GL 2211) issued in 1980 included completed operations coverage, and that such coverage remained in effect through the date of Jones' accident. (Record document no. 28, filed April 30, 1991, para. 49, citing Franklin deposition, Exhibit "5", p. 52 and Exhibit "5", pp. 71-72 and deposition Exhibits 14 and 15.
[5] Hanes used the truck in farming operations he conducted on his own land as well as in custom farming and grain hauling services he established. "Custom farming" refers to the practice of harvesting crops grown by other farmers. (Record document no. 22, filed April 1, 1991, para. 9)
[6] Choice-of-law decisions are governed by the choice-of-law rules of the forum state. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
In this instance, Pennsylvania choice-of-law rules require application of Pennsylvania law. All of the events took place in Pennsylvania. The policy was issued here, Hanes' farming operations were conducted here, the truck was purchased and modified here, and Jones' accident occurred here. No other state has any contact with the events giving rise to either this action or the state court action. Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). Moreover, both sides agree that Pennsylvania law applies.
[7] In diversity cases, the District Court is bound to follow the substantive law of the state in which the Court sits. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Therefore this court is bound by the decisions of the Supreme Court of Pennsylvania. In the absence of an authoritative pronouncement from the highest court, District Courts are obliged to give due regard to the decisions of the forum state's intermediate appellate court as an indicia of how the state's highest court would decide the issue. Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63, 66 (3d Cir. 1985) and Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 553 (3d Cir.1985).
[8] In his answer to Jones' complaint filed in the state court action, Hanes avers that the truck was "modified by independent contractors who lengthened the frame, installed tandem axles on the lengthened frame, and installed a drive shaft and a knapheidie dump hoist and grain body." (Record Document No. 21, filed April 1, 1991, Exhibit "B", para. 17) This averment is consistent with a statement Hanes gave in connection with this action. In response to questioning, Hanes stated:
Q. Okay, as far as when you bought this unit, was it ever discussed what your purpose of using the unit, what you were going to use the unit for?
A. Yes we made those arrangements at the time it was purchased, Jay [Peffer] was going to lengthen the frame for me, in fact, it was delivered to him not to me, it was delivered to his shop.
Q. He was well aware that was the purpose, did you ever check with him to make sure that this unit was designed to operate in this manner? Could be sued as a dump truck?
A. He went out and looked at it to the site [sic] and he made those arrangements before it was purchased.
Q. Okay, just one other thing, you never personally were involved at all in any of the reconstruction activity, all you did was tell them what you wanted done on it, is that correct?
A. Yes.
Q. You never did any of the physical labor, you never touched the unit in any way as far as reconstruction?
A. No. No I didn't do any of the labor.
Q. So all you did was tell them what you wanted, what you thought was the best say to do it and then you left everything to the Hosteller [sic] and to Pepper [sic]?
A. That's correct.
(Hanes statement, Nov. 6, 1989, p. 11. Record document no. 21, filed April 1, 1991, Exhibit "E". Emphasis supplied.)
Hanes' characterization of the manner in which the work was performed leads us to conclude as a matter of law that the modifications were made by independent contractors, since Hanes specified only the result he wanted but did not tell Peffer or Hostetler how to perform the work or act as supervisor. Romanski v. Prudential Property & Casualty Insurance Co., 356 Pa.Super. 243, 514 A.2d 592, 595 (1986).
[9] Jones alleges that Hanes:
18. ... was negligent, careless and reckless in caus[ing] the vehicle ... to be reconstructed or modified in a manner which rendered it unfit and unsafe ... and said vehicle had substantial design defects so as to render it inherently unsafe and said vehicle as modified posed serious risks to people using said vehicle.... [T]he defendant's negligence consisted of ... the following:
(a) Having substantial modifications performed either individually ... or by requesting an independent contractor to do so, on the vehicle in question without consulting competent people to determine or otherwise insure that he design of the vehicle as modified, was capable of hauling loads and dumping loads as foreseeable without insult to the structural integrity of said vehicle;
(b) Performed or had said modifications constructed in a negligent and careless fashion; specifically, the design of the modifications was defective and inherently unsafe for the unloading procedure for which said vehicle had been modified to perform and said design violated the basic safety regulations applicable to said work; and the bracket supports and other steel support were inadequate to perform their required tasks;
(c) Upon completion of the modifications, failed to inspect the work in question to check that the design was capable of performing the work intended and that the structural integrity of the vehicle was adequate and proper; and
(d) Failed to warn subsequent purchasers, users or consumers of said vehicle of the inherent design defects of the modified vehicle.
Jones complaint, para. 18. Record document no. 21, Exhibit "A". Emphasis supplied.
[10] See also: Pacific Indemnity, supra, 766 F.2d at 765.
[11] The exclusion provision then goes on to explain the conditions governing its applicability, stating that the term "operations" includes "materials, parts or equipment furnished in connection therewith" and that operations are "deemed completed at the earliest of the following:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury for damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
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777 F.Supp. 486 (1991)
STATE OF LOUISIANA, et al.
v.
The Honorable Manuel LUJAN, Secretary, United States Department of the Interior.
Civ. A. No. 91-2910.
United States District Court, E.D. Louisiana.
August 16, 1991.
*487 William Guste, Jr., Atty. Gen., Baton Rouge, La., for plaintiffs.
Stephen Mark Gallinghouse, U.S. Atty., New Orleans, La., for defendant.
BEER, District Judge.
This matter is presently before the Court on the motion of plaintiffs for a temporary injunction to enjoin proposed OCS Sale 135 scheduled to be held August 21, 1991. After a consideration of the evidence presented, the argument of counsel, and a review of the applicable law, it is the opinion of this Court that the motion for temporary injunction must be denied.
In Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974) the Fifth Circuit held that "a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion." In order to prevail the plaintiff must meet four prerequisites by showing: 1) a substantial likelihood that the plaintiff will prevail on the merits; 2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; 3) that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendants; and 4) that *488 the granting the preliminary injunction will not disserve the public interest. Id. at 572.
In addressing the first of the four factors, likelihood of success on the merits, I find that the plaintiffs have failed to carry their heavy burden.
Initially, the Court notes that in determining the applicable standards for reviewing the agency's actions, the Court is governed by the Administrative Procedure Act, 5 U.S.C. § 701. Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (1983). In general the Act provides that a court shall set aside agency findings, conclusions, and actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or that fail to meet statutory, procedural or constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C) & (D).
This court may therefore find for that plaintiffs have a substantial likelihood of success on the merits only if I find that the state has demonstrated that it can show that the actions of the secretary were arbitrary or were otherwise not in accordance with law.
The plaintiffs have presented three claims, two based on the Coastal Zone Management Act, and one based on the National Environmental Policy Act.
As to the Coastal Zone Management Act, the Court first notes that defendants and intervenors strongly contend that plaintiff's claims in this regard are procedurally defective, in that plaintiff failed to timely raise these issues in accordance with the applicable regulations. Defendants are correct that the Code of Federal Regulations, specifically 15 C.F.R. §§ 930.42(a) and 930.42(b), does contain specific regulations regarding the timing, specificity, and sufficiency of any objections to be made by the state. Although Mr. Gomez's May 14, 1991 letter does not meet the requirements specified in the regulations, and although the regulations do employ mandatory language, it is unclear if failure to comply with such regulations should be interpreted to constitute a complete bar to any subsequent challenge to the legality of the agency's actions. Absent some clear indication that such default does act as a complete bar, this Court is unwilling to consider the plaintiffs' failure to make an adequate or timely objection to be a bar to subsequent legal action. However, it should be noted that this Court does consider the plaintiffs extreme delay in making its objections, to be one of the compellingly relevant factors in its consideration of the plaintiffs ultimate ability to carry the heavy burden necessary to prevail on the merits.
As to the merits of plaintiffs contentions under the Coastal Zone Management Act, plaintiffs argue that the Department of the Interior had the burden under the Act of demonstrating that the sale is consistent with Louisiana's Coastal Zone Management Program. La.R.S. 49:214.21 et seq. Plaintiffs argue that the Department has failed to do that in that the consistency determination does not adequately address the concerns outlined in the state program, and fails therefore as a matter of law to constitute a proper "consistency determination."
The requirement for making a consistency determination for federal agency activity are set forth in the Code of Federal Regulations, which provides:
The consistency determination shall include a brief statement indicating whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the management program. The statement must be based upon an evaluation of the relevant provisions of the management program. The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal zone effects, and comprehensive data and information sufficient to support the Federal agency's consistency statement. The amount of detail in the statement evaluation, activity description and supporting information shall be commensurate with the expected effects of the activity on the coastal zone. 15 C.F.R. § 930.39(a).
Despite the evidence submitted by the state that the consistency determination *489 was inadequate, or improperly analyzed the state program, given its limited scope of review, this Court cannot find that the plaintiffs have demonstrated or have a substantial likelihood of demonstrating that the consistency determination did not contain "sufficient information to support" the agency's determination. The consistency determination is not required to contain sufficient information to convince the State of Louisiana, or for that matter this Court, that the lease-sale is consistent with state law, it must only contain sufficient information to support such a finding, and here, I find that the consistency determination meets that requirement.
In addition to contesting the adequacy of the procedural demonstration of consistency made by the Department of the Interior, the plaintiffs contend that the sale is in fact inconsistent with the state's coastal management plan, and is therefore contrary to law. To succeed on such a claim plaintiff's must demonstrate not only that the proposed sale is inconsistent with state law, but also that the secretary's finding to the contrary, based on the evidence before him, was arbitrary and capricious.
In support of that claim plaintiffs put forward some convincing testimony that the lease-sale could have significant environmental impacts on Louisiana, specifically the coastal wetlands. The state argues that the imposition of such adverse environmental impacts, absent significant mitigation, is clearly in violation of the Louisiana's Coastal Management Program.
Such evidence is, however, insufficient to meet plaintiff's burden. Even if this Court were convinced that the lease-sale was a in violation of state and, therefore, federal law, the plaintiff has still not met his burden that the secretary's decision was arbitrary and capricious. The actions and decisions of the secretary and the Department are accorded a presumption of regularity, and plaintiffs have presented no evidence that, based on the evidence presented to him, the actions of the secretary were anything but reasonable. The evidence before the secretary, at the time the determination of consistency was made, was sufficient for him to conclude that the lease-sale was consistent with the state management scheme. Had the plaintiffs presented the evidence they have presented to this Court to the secretary before the decision was made, perhaps his decision (or my decision) would be different, but based on the record as it was then constituted the action of the secretary was not unreasonable.
Finally, the plaintiffs contend that the Environmental Impact Statement, prepared pursuant to the National Environmental Policy Act was inadequate in that it failed to properly estimate the resulting impact from the lease-sale, including the socio-economic impacts which the plaintiffs contend will result from the sale. In support of its claims the state presented evidence which can be characterized as presenting only spotty disagreements with the actual findings of the study and concern over the characterization or interpretation of those findings. Only in the area of the potential socio-economic impacts was there evidence that the EIS may have failed to consider or fully disclose the potential environmental impact. Even so, the evidence put forward by Louisiana was essentially lacking in any straight forward specificity.
In reviewing NEPA challenges the Supreme Court has held that, "the role of the courts is simply to ensure that the agency has adequately considered and disclosed the enviormental impact of its actions and that its decision is not arbitrary and capricious." Baltimore Gas and Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). And in Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir.1975), the Fifth Circuit held that "[t]he court's task is to determine whether the EIS was compiled with objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors."
Having considered all of the plaintiffs' challenges to the EIS, including the contentions of inadequate study or analysis, mischaracterization of results, failure to consider socio-economic impacts, and inaccurate *490 prediction of potential future activity, the Court cannot conclude that the plaintiffs have a substantial likelihood of demonstrating either that the EIS was not compiled in good faith or that it would not permit a decision maker to consider the environmental factors involved in the contemplated action.
Having concluded that the plaintiffs have failed to meet their burden of establishing a substantial likelihood of success on the merits, it becomes unnecessary to address other factors. The Motion for Preliminary Injunction must be and is DENIED.
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66 Mich. App. 321 (1976)
239 N.W.2d 366
PEOPLE
v.
PULLEY
Docket No. 19419.
Michigan Court of Appeals.
Decided January 6, 1976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, Donald A. Johnston III, Chief Assistant Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for the people.
George S. Silaski, for defendant.
Before: N.J. KAUFMAN, P.J., and R.B. BURNS and DENEWETH,[*] JJ.
Leave to appeal denied, 396 Mich 852.
N.J. KAUFMAN, J.
Defendant was convicted by a Kent County Circuit Court jury of the charged offense of delivery of a controlled substance, heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). He was subsequently sentenced to a term of from 4 to 20 years and now appeals of right.
The alleged delivery of heroin occurred in the early morning hours of July 3, 1973. The purchase was made by police undercover agent Tim Kirby. At trial, Mr. Kirby testified that he was employed by the Federal Bureau of Narcotics & Dangerous Drugs and that he had worked for the agency for 2-1/2 years. In 1973 he was operating with the Grand Rapids police, and on the evening of July 2, he was searched, equipped with a body transmitter *324 and given $45 to attempt to purchase drugs. Kirby then looked for a man named "Billy" and found him at Art's Bar in Grand Rapids. The two proceeded to several addresses looking for drugs. They eventually arrived at 552 Neland, S.E., defendant's house, where "Billy" entered alone, then summoned Kirby. An unidentified man was sitting at the kitchen table, and defendant Pulley also entered the house. A portion of the substance which was sitting on the kitchen table was sold to Kirby for $45, and he was told that it was heroin. He was told that he could not leave with the heroin, and he pretended to inject part of it into his arm. He did however carry part of the substance away with him in a piece of tin foil. When the substance was later tested it was found to contain heroin, although in minimal amounts.
This testimony was corroborated by Grand Rapids police officers James Powell and James Wells. They testified that they were working with Kirby on the night of July 2, in an attempt to set up the purchase of a controlled substance. Both officers testified that they were equipped with an apparatus which could hear conversations from the transmitter that was concealed on Kirby. They stated that they had followed Kirby in separate cars as he went to four bars in search of "Billy". They saw Kirby meet a man across the street from Art's Bar and leave in his car. Both officers testified that the two men drove to four different homes where they stayed for brief periods, then proceeded to 552 Neland Street where "Billy" entered the house and then motioned Kirby inside.
Officer Powell claimed that, by means of Kirby's transmitter, he overheard conversation taking place inside the Neland Street house. He recognized Kirby's voice and heard three other, unfamiliar *325 voices. Specifically, he stated that he could hear someone comment that Kirby could "purchase the whole thing for $45". It was explained that "thing" is street slang for a controlled substance, usually heroin or cocaine. Officer Wells, however, could not hear any of the discussion because of noise from outside his car.
Defendant's only defense was alibi. Several witnesses testified to the effect that Kirby did not come to the defendant's house on July 3 but had come on June 29 and that defendant was out of town on July 3. The defendant also took the stand and stated that he and several friends were at his home on June 29th or 30th when "Billy" came to the door and asked to borrow money. Tim Kirby followed shortly and appeared to be sick. They left when defendant refused to loan them any money. He stated that he was not at home on July 3.
Defendant's first claim on appeal is that the trial court erroneously admitted into evidence the testimony by Officer Powell which related the conversation overheard by means of the concealed transmitter. Defendant contends that because the monitoring was conducted without a warrant, the admission of this testimony was violative of the Michigan Constitution, art 1, § 11. Defendant cites the recent case of People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), as requiring reversal. Plaintiff argues that Beavers, by its own terms, is inapplicable to this case and that the proper standard is contained in United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), which validates such warrantless third-party monitoring.
We find that no error was committed by admitting the challenged testimony. Initially, we note that it is unclear from the record whether defendant specifically objected to this testimony, as is *326 required to preserve the error for appeal. People v Surles, 29 Mich App 132; 185 NW2d 126 (1970), lv den 385 Mich 764 (1971). General objections were posed and, at one point, an off-record conference followed one such objection. In such a case, we prefer to resolve the doubt in defendant's favor and consider the appellate claim.
As plaintiff notes, People v Beavers, supra, which held third-party monitoring subject to the warrant requirement, is inapplicable to this case. The Court in Beavers explicitly stated that its "decision * * * is to be applied prospectively". 393 Mich at 568. Our Court has recently held that, inasmuch as the primary purpose of the warrant requirement is to deter unlawful police behavior, the effective date of Beavers is the date on which the challenged police conduct occurred, not the date of the trial. People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975).
The behavior challenged in the instant case occurred nearly two years prior to the Beavers decision.
In holding that the challenged behavior was not subject to the warrant requirement, we do not, as plaintiff urges, rely on United States v White, supra. That decision was the product of an evenly divided United States Supreme Court with the decisive vote being a concurrence in the result. As such, we are not bound by the plurality's reasoning. People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973). Rather, we rely on the law in Michigan at the time the challenged activity occurred. Prior to Beavers, this Court consistently held the warrant requirement inapplicable to telephone conversations monitored and recorded with the consent of a participant, People v Drielick, 56 Mich App 664; 224 NW2d 712 (1974), People v Rappuhn, 55 Mich App 52; 222 NW2d 30 (1974), lv *327 den 393 Mich 808 (1975), People v Karalla, 35 Mich App 541; 192 NW2d 676 (1971), lv den 386 Mich 765 (1971), and to third-party monitoring of face-to-face conversations, People v Patrick, 46 Mich App 678; 208 NW2d 604 (1973), People v Karalla, supra.
We take note of a recent decision by another panel of this Court, People v Plamondon, 64 Mich App 413; 236 NW2d 86 (1975), which dictates the opposite result. Plamondon, a split decision, relying on Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), held that the warrant requirement applied to pre-Beavers police monitoring of a telephone call with the consent of one of the participants. The Katz opinion had applied the warrant requirement to police bugging of a telephone booth. It held that, because defendant had a legitimate expectation of privacy in using the booth, he was protected by the Fourth Amendment.
We could draw a distinction between this case, which, like Beavers, involves participant monitoring, and Plamondon, which involved telephonic monitoring. However, we find no justifiable basis for such a distinction. See United States v White (plurality), supra, People v Livingston, supra. Rather, we find that we must reject the reasoning and holding of Plamondon. First, the holding in that case represents a de facto retroactive application of Beavers, one which conflicts with its explicit prospectivity. Although Beavers specifically did not deal with telephonic monitoring (393 Mich at 562-563, fn 2), we find it equally applicable to such behavior. Plamondon relied on the same case, Katz v United States, supra, as did Beavers, which gave its application of Katz prospective effect.
Second, in the relevant cases cited above, this *328 Court consistently refused to apply Katz to either telephonic or participant monitoring. Thus, prior to Beavers, neither Michigan nor United States Supreme Court cases specifically required that a warrant be obtained. Indeed, case law was explicit in stating that no warrant need be obtained, especially in the case of participant monitoring. See Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963). The purpose of the exclusionary rule under the Fourth Amendment and Const 1963, art 1, § 11 is one of deterring certain police conduct. United States v Calandra, 414 US 338; 94 S Ct 613; 38 L Ed 2d 561 (1974). The expressly prospective application of Katz by the Supreme Court and the consistent refusal of this Court to apply Katz to the instant situation make it clear to us that, prior to Beavers, the warrant requirement was inapplicable to participant monitoring and to third-party telephonic monitoring. It seems both fruitless and unfair to now apply the rule to police activity which has already occurred and which was conducted consistent with specific opinions of this Court, opinions which the Supreme Court has refused to retroactively overrule.[1]
In any event, if the warrant requirement had applied here, the instant factual setting would probably have fallen within the "exigent circumstances exception" to that requirement. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), reh den 404 US 874; 92 S Ct 26; 30 L Ed 2d 120 (1971), People v White, 392 Mich 404; 221 NW2d 357 (1974), cert den 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975). The police could not have known whom Kirby would meet or where he might buy narcotics. When he entered defendant's *329 home, they could not have known what would transpire. Once Kirby was inside and knew of a possible purchase, there was no opportunity to obtain a warrant.
Defendant's second claim is that the trial court erred by refusing a defense request for continuance made at the start of trial. In considering such a request, MCLA 768.2; MSA 28.1025 provides in part:
"No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record".
The trial court's decision will be overturned only if it represents an abuse of discretion. People v Carter, 54 Mich App 69; 220 NW2d 330 (1974). Defendant claimed at trial that more time was needed to procure certain witnesses. In this regard, GCR 1963, 503.2 provides:
"A continuance shall be granted on [this] ground only if the court finds that the evidence is material and that diligent efforts have been made to secure the witness or evidence."
We find that the trial court did not abuse its discretion. Defendant had been out of jail on bail for three months before trial. He had ample opportunity to consult with his attorney on possible defenses and to collect witnesses. Additionally, all witnesses sought by defendant did testify at trial. As such, he suffered no prejudice from the court's denial. See People v Murray, 54 Mich App 723; 221 NW2d 468 (1974).
Third, defendant contends that the trial court *330 committed error, in sentencing defendant, by considering unproven allegations of criminal misconduct and a conviction which had been reversed on appeal. A judge, in determining sentence, may consider allegations of criminal conduct which have not resulted in conviction but, if the defendant denies the allegations, the court may consider the alleged conduct only if presented with further information establishing the validity of the allegations. People v Zachery Davis, 41 Mich App 683; 200 NW2d 779 (1972). Our review of the sentencing transcript discloses that defendant never denied the allegations, the validity of which he challenges on appeal. As such, this objection is not properly preserved.
The presentence report listed a prior conviction against defendant which had been subsequently reversed on appeal. Defense counsel, however, notified the court that the conviction had been reversed. In such a case, defendant must show that the trial court relied on the conviction despite its reversal, People v Hildabridle, 45 Mich App 93; 206 NW2d 216 (1973), People v Clark, 57 Mich App 339; 225 NW2d 758 (1975), or drew erroneous inferences from it, People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972). The trial court did, after defense counsel informed him of the reversal, refer to the conviction. He did so, however, not in reliance on the conviction but rather as an indication that defendant was familiar with the sentences possible for a conviction for delivery of heroin. Defendant presents no evidence of any reliance by the court on the prior conviction. Nor can we find from the record any reliance on the inaccurate information and, therefore, we refuse to require a resentencing.
Defendant's fourth claim of error is that the *331 trial court abused its discretion in failing to grant defendant a new trial. Defendant's motion for a new trial was based on an affidavit of plaintiff's primary witness, Tim Kirby. Kirby stated in the affidavit that his in-court identification of defendant was erroneous and that defendant was not present when the heroin was sold.
The granting of a motion for a new trial lies within the sound discretion of the trial court, and, to establish error, defendant must demonstrate a clear abuse of that discretion. People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973), lv den 391 Mich 837 (1974). As plaintiff notes, Michigan courts have been loath to grant new trials based on recanting affidavits from witnesses. See People v Dailey, 6 Mich App 99; 148 NW2d 209 (1967), People v Harris, 31 Mich App 100; 187 NW2d 502 (1971). This is especially so where, as here, the witness's change of heart occurred while he was in jail.
Our review is hindered by the fact that defendant did not have the hearing on his motion for a new trial transcribed. The facts before us demonstrate that not only are there not present the types of facts which have traditionally supported the granting of a motion for new trial, but that there are present several circumstances which have traditionally required denial. Defendant presented no witnesses at the hearing to support the affidavit. See People v Bersine, supra. In his affidavit, Kirby exonerated defendant but did not implicate anyone else. People v Bradford, 10 Mich App 696; 160 NW2d 373 (1968).
Unlike People v Smallwood, 306 Mich 49; 10 NW2d 303 (1943), where a new trial was granted, it appears here that all the facts were fully disclosed at trial. Unlike Smallwood, there is no *332 showing of a hostile motive behind Kirby's initial identification of defendant. Like the witness in People v Bradford, supra, Kirby waited a significant time, more than a year, to recant. A reading of his affidavit makes it clear why the trial judge was not impressed. The affidavit is in the form of a deposition. The attorney questioning Kirby leads him throughout the deposition, and few of Kirby's answers appear to be his own. His reasons for recanting are nebulous at best. In such a factual setting, the trial court's denial of defendant's motion was by no means an abuse.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] It is worth noting that Katz itself was given prospective treatment, Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969).
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66 Mich. App. 658 (1976)
239 N.W.2d 701
PEOPLE
v.
RODGERS
Docket No. 18987.
Michigan Court of Appeals.
Decided January 26, 1976.
*659 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harvey A. Koselka, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Dennis M. Powers, Special Assistant Attorney General), for the people.
Kathleen M. Cummins, Assistant State Appellate Defender, for defendant.
Before: ALLEN, P.J., and BRONSON and R.M. MAHER, JJ.
BRONSON, J.
Defendant was convicted by a jury of assault with intent to commit murder, contrary to MCLA 750.83; MSA 28.278, assault with intent to kidnap, contrary to MCLA 750.87; MSA 28.282, and unarmed robbery, contrary to MCLA 750.350; MSA 28.798. He then pled guilty to a supplemental information filed pursuant to MCLA 769.10; MSA 28.1082, providing for a longer term of imprisonment for second offenders. On October 23, 1973, defendant was sentenced to prison terms of 15 to 50 years, 10 to 15 years, and 10 to 22-1/2 years, respectively.
During cross-examination of a key prosecution witness, Massenoir Norton, the defendant tried to show Norton's "interest" in the prosecution of the case as affecting his credibility. It was established that a pending misdemeanor charge against Norton had been dismissed by the prosecutor. In an obvious attempt to bolster Norton's credibility, the prosecutor on redirect examination elicited the following testimony:
*660 "Q. Do you know why the charges against you were dismissed?
"A. Well, I went and took a polygraph test in Jackson.
"Q. There was an agreement with you, is that correct?
"A. Yes, sir; I volunteered.
"Q. What was that agreement? What was that agreement that you had?
"A. There wasn't any agreement. I just volunteered to go take it.
"Q. And after that, the charges were dismissed, is that right?
"A. Yes, sir.
"Q. Nobody talked to you at all about your testimony in this case or what it would be or anything of this sort?
"A. No, sir."
Defendant, acting in propria persona and unaware that such testimony might be improper, questioned Norton on recross-examination as to the truth of his assertion that a polygraph test had been given.
The Supreme Court of this state has consistently held that neither the fact of the taking of a lie-detector test nor the results of such a test are admissible in evidence, People v Frechette, 380 Mich 64; 155 NW2d 830 (1968), People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Becker, 300 Mich 562; 2 NW2d 503 (1942). Conceding that general rule, the prosecutor argues that prior cases are distinguishable. They are characterized as unrelated to the use of polygraph results to show the motivation of the prosecutor in dismissing unrelated charges against a state witness, to counter a defense inference that the charges were dropped in return for present testimony. The prosecutor wishes us to fashion a rule which would exclude references to a polygraph test only when *661 they bolster the present testimony of a witness. We decline to do so.
It is true that virtually all of the polygraph cases in Michigan have involved attempts to directly bolster the present testimony of a witness. Many are concerned with defendant's attempt to introduce proofs that he passed a lie-detector test when questioned as to his present story, People v Becker, supra, People v Ignofo, 315 Mich 626, 641; 24 NW2d 514 (1946), People v Davies, supra, People v McLaughlin, 3 Mich App 391; 142 NW2d 484 (1966), People v Mattison, 26 Mich App 453, 461; 182 NW2d 604 (1970), People v Levelston, 54 Mich App 477; 221 NW2d 235 (1974). Others concern the attempts of the prosecutor to ask a prosecution witness if he or she took a polygraph test to verify his or her present testimony, People v Brocato, 17 Mich App 277, 291-292; 169 NW2d 483 (1969), People v Lawson, 48 Mich App 662; 211 NW2d 96 (1973). Finally, the courts frequently handle attempts to show that a prosecution witness changed his or her story after being given a lie-detector test which shows a prior inconsistent statement to be untruthful. Such attempts to bolster the current testimony of the witness have been held to be improper, People v Paul F Baker, 7 Mich App 471; 152 NW2d 43 (1967), People v Bush, 54 Mich App 77; 220 NW2d 333 (1974).[1]
The cases cited by defendant from other jurisdictions also fall neatly within this pattern. In State v Parsons, 83 NJ Super 430; 200 A2d 340 (1964), and Commonwealth v Johnson, 441 Pa 237; 272 A2d 467 (1971), it was held that the prosecutor improperly elicited from a state witness the fact *662 that prior inconsistent testimony was changed to the present story only after that witness took a polygraph test. In Mattox v State, 240 Miss 544; 128 So 2d 368 (1961), and Kaminski v State, 63 So 2d 339 (Fla, 1953), cert den, 348 US 832; 75 S Ct 55; 99 L Ed 656 (1954), a prosecution witness was improperly asked if he took a lie-detector test with respect to the testimony given at trial.[2]
Despite the distinguishing aspects of most of the polygraph cases, we do not feel that we should carve out an exception for this type of intentional reference to polygraph test results.[3] The most recent Michigan Supreme Court case on polygraph testimony states that "the results of lie-detector tests are inadmissible", People v Frechette, supra, p 68. This Court has previously stated that "[n]either the results of such tests nor any reference to them has ever been proper in this state", People v Brocato, supra, p 292, fn 11. Similar language is found in most cases, and none indicate that the rule set forth is confined to the particular facts in that case.
Although the large majority of cases fit within the factual patterns set forth above, this Court has found reversible error in a case similar to the present one. A police informant, James Booker, testified as to a sale of heroin by the defendant in People v Leroy Goodwin, 40 Mich App 709; 199 NW2d 552 (1972). Defendant, on cross-examination, attempted to attack Booker's credibility by showing that the prosecutor had dropped a pending charge against him, and that Booker had given *663 false information in two other prosecutions. During cross-examination, Booker responded, without defense objection, that the prior charges had been dismissed because he voluntarily had taken a polygraph test, which showed that he was being truthful. In addition, a police officer on direct examination testified that Booker had taken a polygraph which showed that he was not lying after he recanted in the two previous prosecutions.
The Goodwin Court found reversible error because "[i]n both instances said reference was neither brief nor inadvertent, but, on the other hand, was a clear attempt to rehabilitate and restore informant Booker's credibility", Goodwin, supra, p 715. That result was reached although neither polygraph reference directly bolstered Booker's at-trial testimony.
In conclusion, although this case can be distinguished from the vast majority of polygraph cases, we fail to see how that distinction mandates a different result. Our courts have broadly prohibited references to lie-detector tests, and at least one case has held that the reference need not directly bolster a witness's present testimony. Under those circumstances, we feel that our Supreme Court should properly fashion the limitations or exceptions to its polygraph rule.[4]
As noted above, defendant did not object at trial to this reference to the results of a polygraph test. However, we follow People v Goodwin, supra, where the Court found that reversal was required to prevent a miscarriage of justice.
Defendant raises several other issues, but we need not reach those issues here.
Reversed and remanded.
NOTES
[1] Another category, not applicable here, involves the prosecutor's attempt to introduce proof that defendant failed a lie-detector test when questioned as to his present testimony. See, People v Frechette, 380 Mich 64; 155 NW2d 830 (1968).
[2] People v Schiers, 19 Cal App 3d 102; 96 Cal Rptr 330 (1971), involves the same category as discussed in footnote 1.
[3] The prosecutor does not argue that Norton's mention of the polygraph test was inadvertent or unexpected. The line of cases represented by People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975), is therefore inapplicable. Those cases hold that in some instances the results of lie-detector tests, although improperly admitted, will not constitute reversible error.
[4] We note in passing that the Supreme Court is presently considering the whole polygraph rule in People v Barbara, ___ Mich ___; ___ NW2d ___ (Docket No. 54774, argued in January, 1975).
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167 Cal.App.4th 558 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
FRED OMOIGHE AKHILE, Defendant and Appellant.
No. A119729.
Court of Appeals of California, First Dist., Div. Five.
October 9, 2008.
*560 Sara E. Coppin and Robert B. Jobe for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Allen Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SIMONS, J.
To ensure that noncitizens are aware of the immigration consequences before they enter a plea of guilty or no contest to a criminal charge, Penal Code section 1016.5, subdivision (a),[1] sets out a specific advisement for the trial court to provide "[p]rior to acceptance" of the plea. *561 When the trial court fails to provide this advisement, the defendant is entitled to have the plea vacated, after making a showing that he or she faces an adverse immigration consequence due to the conviction and was prejudiced by the nonadvisement. The trial court denied appellant Fred Omoighe Akhile's section 1016.5 motion to vacate because the prosecution proved he had been advised of the immigration consequences at his arraignment several weeks before entering his plea. We reverse because we construe section 1016.5 to require that the advice be provided during the taking of the plea. We remand to permit the trial court to determine whether appellant has demonstrated he was prejudiced by receiving the advice prematurely and whether his motion was timely filed.
BACKGROUND
Appellant is a native of Nigeria, who entered the United States on a tourist visa in 1982 and never left. In February 1992, appellant pled guilty to violation of former section 487.1, grand theft by embezzlement. The trial court sentenced him to a term of two years in state prison.
In April 1993, the Immigration and Naturalization Service (INS) (now the Dept. of Homeland Security) commenced deportation proceedings against appellant on the ground he had remained in the country longer than allowed under his visa. In March 1997, the INS lodged an additional charge against appellant, alleging that his 1992 conviction constituted another ground for deportation. In April 1997, appellant obtained an immediate relative visa through his citizen wife. In November 1997, an immigration judge declined to provide appellant relief from deportation; the decision was affirmed in 2002 by the Board of Immigration Appeals. The decisions were based in part on appellant's 1992 conviction.
In July 2007, appellant filed a section 1016.5 motion to vacate his 1992 guilty plea. In a declaration, appellant averred he was taken into custody by immigration authorities in November 2005 and held in detention until June 2006. While in detention he learned from a cellmate that the trial court had been obligated to advise him of the possible immigration consequences of his 1992 plea. Defendant further averred he had not been so advised and had he been so advised he would not have pled guilty.
No transcript of the February 1992 plea hearing was available because it had been destroyed in 2002. The minute order for the plea hearing did not indicate appellant had been advised of the possible immigration consequences of his plea. The minute order for the December 1991 arraignment did state, "Defendant advised of provisions of PC 1016.5."
*562 The trial court denied appellant's section 1016.5 motion. The court stated: "I'm going to find that since he was advised at the time of his arraignment that there were immigration consequences, he was advised in this proceeding of the immigration consequences. I will note that there is no evidence in the file, either by way of the change of plea form, or in a transcript, that he was advised of the immigration consequences at the time of the entry of his plea. And I'm going to deny the motion because he was advised at the time of his arraignment."
DISCUSSION
Section 1016.5, subdivision (a), provides that "[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." A defendant is "presumed not to have received" the advisement unless it appears in the record. (§ 1016.5, subd. (b); see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 191 [96 Cal.Rptr.2d 463, 999 P.2d 686] (Zamudio).)
The statute specifies a remedy for a trial court's failure to administer the advisement: "If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty." (§ 1016.5, subd. (b).)
(1) "To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (People v. Totari (2002) 28 Cal.4th 876, 884 [123 Cal.Rptr.2d 76, 50 P.3d 781] (Totari I); see Zamudio, supra, 23 Cal.4th at pp. 192, 199-200.) Although we review the trial court's denial of the motion for abuse of discretion (Zamudio, at p. 192), statutory interpretation is an issue of law we decide de novo (Regents of University of *563 California v. Superior Court (1999) 20 Cal.4th 509, 531 [85 Cal.Rptr.2d 257, 976 P.2d 808]).
The trial court denied appellant's motion to vacate for failure to show the first element, that he did not receive the section 1016.5 advisement. No published decision addresses the statutory interpretation issue in this case: Whether an advisement at the time of the arraignment, but not at the time of the subsequent plea, satisfies section 1016.5.
(2) Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) We begin by examining the statutory language, giving the words their usual, ordinary meaning. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [103 Cal.Rptr.2d 751, 16 P.3d 166].) The statutory language at issue requires a trial court to administer the advisement "[p]rior to acceptance of a plea of guilty." (§ 1016.5, subd. (a).) The phrase is ambiguous because it is reasonably susceptible to the interpretations offered by both parties (California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1545 [68 Cal.Rptr.3d 391]); that is, it can be read to require either that the advisement be given at the time of the plea or that the advisement be given at any time during the criminal proceedings before the plea. (3) When, as here, "a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) We must consider "`"the object to be achieved and the evil to be prevented by the legislation,"'" and, barring some more paramount consideration, ambiguities "`must be resolved in favor of the defendant.'" (Zamudio, supra, 23 Cal.4th at pp. 193, 198; see also People v. Simon (1995) 9 Cal.4th 493, 517 [37 Cal.Rptr.2d 278, 886 P.2d 1271].)
(4) Section 1016.5 contains an "express statement" of legislative intent. (Zamudio, supra, 23 Cal.4th at p. 193.) The Legislature was concerned about the "many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime" in which "a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (d).) Section 1016.5 was enacted "to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the *564 defendant's counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction." (Id., subd. (d).)
The more reasonable interpretation of section 1016.5 is that the advisement must occur within the context of the taking of the plea. Respondent's interpretation is that the advisement may be given at any point during the criminal proceedings, including the arraignment, as long as it occurs before entry of the plea. That interpretation may undermine the statute's goal of ensuring that noncitizens entering a plea of guilty are actually aware of the possible immigration consequences. If a defendant does not plead guilty at the arraignment, then significant time may pass before a guilty plea is entered. Moreover, a defendant is likely to give the advisement more attention and significance at the plea stage than at the arraignment stage. Finally, a defendant may plead guilty to a different charge or charges than those involved at the arraignment, and some defendants may be confused as to whether the advisement continues to apply. For those reasons, respondent's interpretation of section 1016.5 would in many cases introduce significant uncertainty as to whether the defendant actually recalled the advisement and understood the possible immigration consequences at the time of entry of the plea. In enacting the statute, the Legislature sought to eliminate such uncertainty. Accordingly, respondent's interpretation is not "`reasonable, fair and harmonious with [the statute's] manifest purpose.'" (Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 85 [60 Cal.Rptr.2d 402].)[2]
(5) Because respondent's interpretation would undermine the Legislature's purpose, we hold that the advisement required by section 1016.5 must occur within the context of the taking of the plea.[3] Our holding is further supported by the principle that ambiguities should be interpreted in the defendant's favor. (Zamudio, supra, 23 Cal.4th at p. 198; People v. Simon, supra, 9 Cal.4th at p. 517.) Appellant has shown that he was not properly advised under section 1016.5.[4]
*565 (6) This conclusion does not require a trial court to ignore the obviously material fact of an earlier advisement. Instead it simply shifts the court's consideration of this factor to the prejudice determination. In Totari I, our Supreme Court discussed the prejudice determination in the course of ruling that the denial of a section 1016.5 motion is appealable. "On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (Zamudio, supra, 23 Cal.4th at pp. 209-210.) Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. (Id. at pp. 199, 207, 209-210.) Thus, in deciding the merits of defendant's motion to vacate, it may be important for the trial court to determine the factual issue of knowledge." (Totari I, supra, 28 Cal.4th at p. 884.) Implicit in this discussion is that the appropriate time for the court to advise of the immigration consequences is "at the time of the plea." (Ibid.) And, if the advisement was inadequate, earlier advisements "may be a significant factor in determining prejudice." (Ibid.)
We reject respondent's view that the statute categorically bars relief if the court provided the required advice sometime during the pendency of the criminal charges, before entry of the plea. Instead, an advisement at the arraignment becomes a factor that the trial court should consider in deciding if prejudice has been established.
On remand, the trial court should determine whether defendant suffered prejudice; that is, defendant must show it is "reasonably probable he would not have pleaded guilty or nolo contendere if properly advised." (Totari I, supra, 28 Cal.4th at p. 884; see also Zamudio, supra, 23 Cal.4th at p. 210 ["Whether defendant was prejudiced by the trial court's incomplete advisements is a factual question, appropriate for decision by the trial court in the first instance."].)[5] Appellant need not demonstrate a likelihood he would have obtained a more favorable result at trial. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1245-1246 [56 Cal.Rptr.3d 406].) The trial court should also consider respondent's argument that appellant delayed too long in bringing the motion to vacate. (Zamudio, at p. 204; People v. Totari (2003) 111 Cal.App.4th 1202, 1209 [4 Cal.Rptr.3d 613].)
*566 DISPOSITION
The trial court's order denying appellant's motion to vacate is reversed. The matter is remanded for further proceedings consistent with this opinion.
Jones, P. J., and Needham, J., concurred.
NOTES
[1] All undesignated section references are to the Penal Code.
[2] The language in the statute stating that trial courts should provide a defendant a "reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of" the possible immigration consequences (§ 1016.5, subd. (d)), also reflects the Legislature's expectation that the advisement will occur at the time of the plea.
[3] Our decision should not be read to discourage trial courts from providing the advisement at the time of the arraignment in addition to the time of the plea.
[4] Because we hold an advisement other than at the time of the plea does not satisfy section 1016.5, we need not consider the adequacy of the notation in the minute order for the arraignment, "Defendant advised of provisions of PC 1016.5." (See People v. Dubon (2001) 90 Cal.App.4th 944, 954-955 [108 Cal.Rptr.2d 914] [notation that defendant was advised of the possible effects of his plea on "`alien/citizenship/probation/parole status'" was insufficient to show compliance with § 1016.5].)
[5] Respondent does not dispute that appellant established the second element: more than a remote possibility the conviction would have one or more of the adverse immigration consequences specified in section 1016.5. (Zamudio, supra, 23 Cal.4th at p. 202.)
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777 F.Supp. 1252 (1991)
Charles D. CHELTON, Plaintiff,
v.
KEYSTONE OILFIELD SUPPLY COMPANY, INC. and UGI Development Company, Defendants,
v.
BARON MANUFACTURING COMPANY and Henssgen Hardware Corp., Henssgen G.m.b.H. a/k/a Henssgen Karabinerhaken G.m.b.H. and Mittelman and Company, Third-Party Defendants.
Civ. A. No. 87-189E.
United States District Court, W.D. Pennsylvania.
April 24, 1991.
*1253 Michael E. Dunlavey, Dunlavey, Nichols, Ward & Krill, Erie, Pa., for Charles D. Chelton.
Terry C. Cavanaugh, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for Henssgen G.m.b.H.
Mark E. Mioduszewski, Knox, Graham, McLaughlin, Gornall & Sennett, Erie, Pa., for Keystone Oilfield Supply, Inc. and UGI Development Co.
Gail Gratton, Rose Schmidt Hasley & DiSalle, Pittsburgh, Pa., for Henssgen Hardware Corp.
David Presser, Gorr Dell and Loughney, Pittsburgh, Pa., for Baron Mfg. Co.
OPINION
COHILL, Chief Judge.
Presently before the Court are several motions for summary judgment. Every party, except the plaintiff, has moved for summary judgment against every other party. These motions are the culmination of months of discovery disputes and motions for sanctions.
Specifically, the tedious and tortured path of this case has now led to the following motions:
1) Defendants/third-party plaintiffs' Motions for Summary Judgment Against all three third-party defendants;
2) Defendants' Motion for Summary Judgment against the plaintiff;
3) Third-party defendant Baron Manufacturing Company's Motion for Summary Judgment (presumably against the defendant/third-party plaintiff though that is not specifically stated anywhere in the motions or briefs);
4) Third-party defendant Baron Manufacturing Company's Motion for Summary Judgment against third-party defendants Mittelman & Company and Henssgen Karabinerhaken G.m.b.H.;
5) Third-party defendants' Mittlemann & Co. and Henssgen Karabinerhaken G.m.b.H. Motion for Summary Judgment against defendants/third-party plaintiffs;
6) Third-party defendant Henssgen Hardware Corporation's Motion for Summary Judgment against defendants/third-party plaintiffs.
Given that all these motions arise out of the same incident we will dispose of them in one opinion.
Facts
On August 8, 1985, Mr. Charles D. Chelton was working on an oil rig located in Northwestern Pennsylvania, specifically Rig # 6. He fell from that rig when the snap hook holding him to the climber's assist cable broke. Mr. Chelton suffered serious injuries from the fall. Mr. Chelton *1254 then sued his employer's parent company and his employer's wholly owned subsidiary for providing him with a defective snap hook. The complaint contains three causes of action. The first cause of action is negligence, the second is strict product liability and the third is breach of warranty.
The parent company named as the defendant in this action is UGI Development Company ("UGI"). At the time of the accident Mr. Chelton was employed by International Petroleum Services Company ("IPSCO"), a wholly owned subsidiary of UGI. IPSCO also has a wholly owned subsidiary named Keystone Oilfield Supply Company ("KOSCO") which Mr. Chelton also named as the defendant in his suit.
IPSCO drills oil and gas on property owned or leased by its customers. KOSCO sells oilfield drilling supplies to drillers. The plaintiff has presented evidence that, in the early 1980's, IPSCO instigated a policy that IPSCO would purchase all supplies from KOSCO. As a result, Mr. Chelton named KOSCO as a defendant as well.
Both KOSCO and UGI are defendants because the plaintiff contends they supplied him with the defective hook. The sellers of a defective product could be liable to the plaintiff under any of the three theories of liability in the complaint.
KOSCO/UGI subsequently filed cross claims against Henssgen Hardware Corporation ("HHC") and Baron Manufacturing Company ("Baron"), supposedly the only distributors of this type of snap hook in the United States. After further investigation, KOSCO also joined Mittelman & Company ("Mittelman"), the alleged manufacturer of the snap hook, and its wholly owned subsidiary, Henssgen Karabinerhaken G.m.b.H. ("HK").
HK is the sales arm of Mittelman, responsible for marketing Mittelman's products. HHC is the wholly owned subsidiary of HK. HHC, the permanent distribution center for HK in the United States, was created by HK to be the exclusive importer of Mittelman products into the United States. However, HK could still market and import Mittelman products into the United States provided that HHC received an 8% commission on all HK sales within the United States.
Neither HHC, HK or Baron sell products directly to oilfield supply companies like KOSCO. Generally, these companies are wholesalers which sell the products to hardware stores and discount stores where they are purchased by consumers.
KOSCO/UGI filed cross claims against these companies seeking contribution or indemnity for any judgment entered against KOSCO/UGI for the plaintiff's injuries. The basis for these cross claims is that the manufacturers and distributors of a defective product share liability with the seller for any injuries resulting from the defect.
However, months of discovery failed to uncover a paper trail documenting this snap hook's journey from the factory to oil rig # 6. Thus, no one knows quite yet exactly who sold, manufactured or distributed this particular snap hook.
The plaintiff has provided two affidavits that were subsequently corroborated by deposition stating that KOSCO sold the snap hook to IPSCO. Both HHC and Baron maintain that since there is no evidence to positively prove that either of them sold the snap hook, they should be dismissed as parties to this law suit. Mittelman and HK dispute whether the snap hook in question was actually manufactured by Mittelman. Given that the facts questioned above are central to the motions of the individual parties, the details of these disputes will be discussed in conjunction with the relevant motion.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) requires a grant of summary judgment when the moving party has shown "that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law." The United States Supreme Court has said that no genuine issue for trial exists when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d *1255 538 (1986). A genuine issue of fact exists if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Given this relatively strict standard, we find that there are several genuine issues of material fact in this case. The most important factual issue is who sold and manufactured the snap hook. All the third-party defendants argue that because none of the discovery in this case has uncovered any air tight evidence that any one of them sold or manufactured the snap hook, there are no genuine issues of material fact and they should be dismissed from the law suit. We interpret this lack of conclusive evidence quite differently.
If there is no conclusive proof that one party sold, manufactured or distributed the product, but the plaintiff has presented credible evidence to suggest that any of the defendants in the suit could be liable, then a genuine issue of material fact exists. The evidence presented by both the plaintiff and the defendants is more than colorable and a rational trier of fact could find in favor of the plaintiff. However, none of the parties, plaintiff, defendants or third party defendants have provided any conclusive proof of liability or the lack thereof. Thus, we will deny all the summary judgment motions now before this court, leaving the question of who manufactured, sold and/or distributed the snap hook to the jury.
KOSCO/UGI
We hold that the plaintiff has presented enough evidence to withstand KOSCO/UGI's motion for summary judgment against the plaintiff. To survive this summary judgment motion, the plaintiff must point to some evidence in the record which refutes KOSCO/UGI's factual claims. Childers v. Joseph, 842 F.2d 689, 694-695 (3d Cir.1988).
The plaintiff presented two affidavits of the individuals responsible for ordering supplies for IPSCO rig # 6 in 1985, Scott Strand and Barry Johnston. In their subsequent depositions, these individuals both testified that they received instructions from IPSCO to purchase their supplies from KOSCO. Mr. Johnston even remembered that particular snap hook arriving in an order delivered to them by KOSCO. Johnston Dep. at 58 68. If a jury found these individuals credible, they could easily find that KOSCO sold IPSCO the snap hook. Thus, the plaintiff has presented significantly probative evidence to refute KOSCO's claim that it did not supply the snap hook to IPSCO.
Mittelman
Mittelman argues that there is no evidence connecting it with the snap hook at issue in this case. The third-party defendant argues that no one can positively identify the snap hook as being a Mittelman product. Thus, Mittelman maintains that it should be dismissed from this suit, essentially alleging that the lack of evidence resolves all the factual issues in its favor. While we realize that identification of the snap hook is difficult, we also feel that these factual questions alone are enough to survive any motion for summary judgment.
The hook in question is not intact. The top half of the hook has disappeared. All that remains is the eye and part of the hook. There are no identifying marks on the remnant except the word "Germany." There are only two German manufacturers of snap hooks, Mittelman and Gerbruder Batz G.m.b.H. ("Batz"). Batz marks its hooks with "W. Germany" and Mittelman simply uses "Germany." Batz does not make any die cast zinc alloy hooks with dimensions similar to the hook in question. Record in Support of Defendants/Third Party Plaintiffs' Motions for Summary Judgment at 269.
However, the dimensions of the hook, its composition (die cast zinc alloy) and even the word "Germany" closely correspond with the Mittelman's model 126-120 snap hook (HK's model # 249-5). See, Record at 206. Thus, while there is no conclusive proof that Mittelman manufactured the snap hook, there is enough evidence to raise a significant question of fact for a jury to decide at trial. This evidence, while not conclusive, is "significantly probative" *1256 of the issue of who manufactured the hook. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). With this information, the third-party plaintiff has provided enough probative evidence to survive this third-party defendant's motion for summary judgment. We also find this evidence sufficient to support denial of Mittelman's Motion for Summary Judgment against KOSCO/UGI.
Baron, HHC and HK
The potential liability of the third party defendant distributors is a more difficult and subtle dilemma. During the relevant time period, 1983-1985, Mittleman produced 18,776 model 126-120 snap hooks. Mittelman sold 18,384 of these hooks to HK and the remaining 394 to HHC. Thus, all of the model 126-120 snap hooks made by Mittelman were sold to either HK or HHC. However, only 2,394 of the total number of 126-120 hooks were exported to the United States. HK sold 2000 of these imported snap hooks to Baron. HHC sold all of its 394 hooks to various clients in the United States. Record at 345 346. Thus, KOSCO/UGI joined all the possible importers and distributors of Mittelman 126-120 snap hooks in the United States through its third-party complaint.
HHC disputes this conclusion, pointing to one statement in a deposition given by Ronald Shaw. Mr. Shaw, an officer of HHC, stated that other companies purchased snap hooks from Mittelman or HK. However, there is no evidence on the record, aside from this one statement, that these companies purchased Mittelman model 126-120 snap hooks between 1983 and 1985. Thus, we feel that there is sufficient evidence on the record to support the conclusion that KOSCO/UGI has joined all the primary distributors of Mittelman 126-120 snap hooks over the relevant time span.
Liability would only attach to these distributors if the jury decided that the hook was manufactured by Mittelman and was distributed in the United States through Mittelman's normal distribution channels. At that point, liability would attach under strict liability, and possibly negligence, because all those who participated in the commercial transfer of the product are liable. See, Restatement (Second) of Torts § 402A; Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). However, the question remains whether the third party plaintiffs must specifically identify the company that actually distributed the defective snap hook.
Because this case is before us through diversity jurisdiction we must apply the substantive law of the state of Pennsylvania. Erie Railroad Comp. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). However, the Pennsylvania Supreme Court has not decided this issue. Thus, we must predict how Pennsylvania's highest court would decide this case. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir.1980), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980).
Baron, HK and HHC argue that Pennsylvania law requires that the plaintiff (or third-party plaintiff) be able to specifically identify the manufacturer, distributor or retailer that dealt with the specific defective product. All three parties cite the same cases. The earliest of these cases is Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 495 A.2d 963 (1985). Cummins involved an individual who was injured when a tire and rim assembly exploded while being inflated. The tire and rim assembly was lost before the plaintiff could examine it to determine the manufacturer. Thus, the plaintiff sued all manufacturers of similar tire and rim assemblies. The plaintiff could not identify the particular part in the rim assembly that was defective let alone the manufacturer or distributor of the tire and rim assembly. Thus, the court held that liability could not attach under negligence or strict liability.
The Cummins court also declined to apply the market share or alternate liability theories to the strict liability claim before it. Market share liability holds defendant manufacturers liable for defective products even though the plaintiff cannot identify the manufacturer of the specific product that she used. Under that theory, all manufacturers joined in the suit are liable to the plaintiff in proportion to their market *1257 share at the time the product was sold. See, Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980).
Alternate liability means that, where the plaintiff cannot identify the individual tort-feasor that caused his injury, the burden shifts to the defendants to exculpate themselves. The classic example of this theory is Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers, two hunters simultaneously fired shots in the direction of another hunter. The third hunter was injured by a shotgun pellet from one of the defendants' guns but could not identify which gun had discharged the pellet. The court ruled that both defendants were negligent, thus, the burden shifted to the defendants to discover which hunter had actually shot the pellet in order to exculpate themselves.
While Pennsylvania courts have applied this theory in the past they have not decisively applied it in strict liability cases. See, Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970); Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974). Recognizing this state of the law, the Cummins court stated that it declined to apply "either market share liability or alternative liability with respect to the case at bar." Cummins, 344 Pa.Super. at 27, 495 A.2d at 972.
Subsequently, the United States District Court for the Eastern District of Pennsylvania used Cummins to predict that the Pennsylvania Supreme Court would not apply the alternate liability theory to strict liability actions. In Long v. Krueger, Inc., 686 F.Supp. 514 (E.D.Pa.1988), the court held that where the plaintiff could not identify the manufacturer of an allegedly defective stool because the stool was no longer available, that the alternate liability theory did not apply. The court also held that Cummins required a plaintiff to specifically identify the manufacturer or seller of the product in order to recover under strict liability or negligence. Id. at 517.
At least one other Pennsylvania court has held that the manufacturer or supplier of the product must be identified by the plaintiff. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988). Eckenrod is an asbestos case, thus the majority of the court's opinion dealt with proof of the ingestion of the asbestos fibers. However, at the beginning of its analysis the court did state that "for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier." Id. at 190-191, 544 A.2d at 52.
Thus, three separate courts have interpreted Pennsylvania law as requiring specific identification of the manufacturer or supplier of the defective product. However, none of these courts faced a situation similar to the instant case. In Cummins, the plaintiff could not identify the part in the assembly that was defective let alone the manufacturer of the part. As a result, the plaintiff sued all possible manufacturers or suppliers of all similar tire and rim assemblies. In addition, the defective assembly itself was not available.
Long involved a broken postal carrier stool. The plaintiff made no attempt to preserve the stool, and it was destroyed by the postal service for safety reasons. The plaintiff in turn sued all suppliers of stools to the postal service in the area over several years. Thus, both Long and Cummins involve a plaintiff taking a "shotgun" approach to products liability. The theory being that if you cannot identify the manufacturer, sue all possible manufacturers, in hope that one will be the liable manufacturer.
These cases are qualitatively different from the case at hand. The plaintiff, Mr. Chelton, sued only the company most likely to have supplied him with the hook KOSCO/UGI. KOSCO/UGI, in turn, only joined the manufacturer most likely to have made the hook and that manufacturer's distributors. Thus, this case is quite tailored. The plaintiff and the third-party plaintiffs did not sue all manufacturers of snap hooks and all their distributors. These parties only sued the most likely manufacturer and its distributors after a *1258 reasonable and diligent investigation of the accident.
The third party plaintiff is unable to identify the specific distributor of the hook through no fault of its own. These companies have presented significantly probative evidence that Mittelman manufactured the hook. However, they do not have any information, after diligent investigation, as to which of Mittelman's distributors sold this particular hook. Thus, a question of fact remains for the jury to decide at trial. To facilitate the resolution of this question at trial, we feel that this is an appropriate case to shift the burden to the third party defendants to prove which of the distributors sold this particular hook.
We do not feel that this result is contrary to the Pennsylvania Superior Court ruling in Cummins. The Cummins court distinguished its ruling from a trial court ruling that applied alternate liability to a "DES" (diethylstilibestrol) strict product liability case. See, Erlich v. Abbott Laboratories, 5 Phila. 249 (1981). The Cummins court mentioned certain "pivotal" factors which differentiated its case from cases where market share liability or alternate liability were appropriate.
First, the plaintiff was unable to identify the manufacturer of the offending product through no fault of her own. Second, she had joined those manufacturers who marketed approximately 90% of the DES in the Philadelphia area. Third, she alleged that all defendants were tort-feasors by placing an allegedly defective product on the market. Finally, she averred that the products were identical and shared the same defective qualities. Cummins, 344 Pa.Super. at 27, 495 A.2d at 972.
The instant case satisfies those pivotal factors. First, after months of discovery, the third-party plaintiffs have not uncovered any paper trail identifying the supplier of the hook. However, we do not believe that this means that no paper trail could be found. Any information relating to the sales of these products would be in the files of the third party defendant distributors. While these third party defendants have been reasonably cooperative and produced much information to aid the third-party plaintiff, we believe that if the burden of uncovering this hook's route from Germany to rig # 6 is placed on the distributors the path will become substantially clearer.
Second, the third party plaintiff has joined all potential distributors of this hook. If the Cummins court was satisfied with having 90% of the liable parties in the suit, 100% of the potential distributors should certainly be sufficient.
Because the plaintiff has alleged a design defect in this hook, all these distributors could be tortfeasors. Complaint ¶ 20. The tort occurs when they participate in the commercial transfer of a defective product. See, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). If the jury determines that this hook is a Mittelman product and its design is defective, then all these defendants participated in the commercial transfer of a defective product. However, if the jury determines that the design was not defective but the individual hook was, shifting the burden to the distributors should facilitate determining which company sold this particular hook.
We must emphasize that this decision should not be read to apply universally the theory of alternate liability in strict liability cases. This is a unique case. The third party plaintiff has presented substantial evidence to suggest that a single manufacturer produced the product in question. However, the third party plaintiff has not been able to determine which of this manufacturer's distributors sold the product. Thus, there are a limited number of potentially liable parties which would owe the defendant indemnity or contribution and only if the jury finds that Mittlemann produced the product.
This is not a case where the plaintiff has made no effort to determine which manufacturer created the product and sued all possible manufacturers. Nor is this a case where it would be impossible to determine which party is liable. A substantial factual question remains as to which third-party defendant sold this snap hook. This case *1259 simply shifts the burden of proving which party sold the hook to the companies which have the information readily at hand. Thus, we will deny third party defendants Baron, HK and HHC's motions for summary judgment against the third party plaintiffs.
Additionally, we will deny Baron's motion for summary judgment against Mittelman and HK. Given the substantial factual questions remaining in this case, we find it would be improper to dismiss Baron's claim for indemnity against Mittelman and HK.
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777 F.Supp. 312 (1991)
Sidney MORSE, Plaintiff,
v.
Robert WEINGARTEN, American Express Co., Shearson Lehman Brothers, Inc., and Michael R. Milken, Defendants.
No. 91 Civ. 3893(MEL).
United States District Court, S.D. New York.
November 13, 1991.
*313 Wechsler, Skirnick, Harwood, Halebian & Feffer, New York City, for plaintiff *314 (Stuart D. Wechsler and Daniella Quitt, of counsel).
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Michael R. Milken (Colleen McMahon and Beth Friedman Levine, of counsel).
LASKER, District Judge.
Defendant Michael Milken moves under Rules 12(b) and 9(b), Fed.R.Civ.P., to dismiss all claims against him in this securities fraud class action suit, and under Rule 12(f) to strike portions of the complaint.[1]
For the reasons discussed below, the motion to dismiss and the motion to strike are granted.
I.
Plaintiffs are shareholders who bought stock in the now-bankrupt First Capital Holdings Corp. ("First Capital") between March 31, 1989 and May 31, 1991.
Their complaint alleges: 1) that Milken either caused or helped defendant Robert Weingarten to establish First Capital, a financial services and insurance holding company that derived much of its revenue from its investment portfolio; 2) that Milken, in his capacity as "junk bond chief" (Morse's term) of the brokerage firm Drexel Burnham Lambert, underwrote First Capital's financing through offerings of junk bonds; 3) that "Drexel/Milken" exercised control over First Capital's investment portfolio and caused it to invest heavily in junk bonds issued by other clients of Milken and Drexel; 4) that First Capital issued statements, including annual reports and reports filed with the Securities and Exchange Commission (SEC), which contained misrepresentations or misleading omissions indicating that its financial condition was sound and that its effective portfolio management reduced the risk normally associated with junk bonds despite the fact that the value of its junk bond portfolio was deteriorating rapidly; 5) that defendants knew or were recklessly indifferent to the falseness of their representations or the misleading nature of their omissions; 6) that plaintiffs bought stock from March 31, 1989 through May 31, 1991 in reliance on those misrepresentations or misleading omissions; and 7) that First Capital collapsed, filing for bankruptcy on May 30, 1991[2] and thereby injuring plaintiffs.
Morse alleges that Milken's participation in these events was part of a broader attempt by him to operate a scheme, which Morse calls a "Daisy Chain," by which Milken would both arrange financing for various entities with high-risk, high yield "junk bonds" and cause the same entities to invest in junk bonds of other Milken clients, all in an attempt to create an artificially inflated market for financial products created by Drexel and Milken.
As part of the alleged scheme, Morse claims, Drexel and Milken knowingly "made materially false and misleading statements ... to prospective purchasers or sellers in order to induce the purchase or sale of high-yield securities," Compl. at ¶ 61, and induced sales of high-yield securities by advising "certain prospective purchasers and sellers that their participation in the Drexel Daisy Chain would increase the price of high-yield securities." Compl. at ¶ 62. The complaint also alleges that Drexel and Milken "purchased and sold high-yield securities while in possession of material information, not generally available to the public, obtained from their relationships with the issuers and purchasers...." Compl. at ¶ 63.
Finally, Morse asserts:
Milken played an ongoing dominant role in the operation of the Daisy Chain. Pursuant thereto, he materially aided and abetted the other defendants in the wrongdoing herein alleged. Drexel/Milken further exercised substantial discretion and investment authority over [First Capital's] junk securities portfolio which he exercised without regard to [First Capital's] stated investment goals *315 and further engaged in numerous unsuitable and unnecessary transactions. Defendants' statements to the contrary acted as a fraud upon plaintiff ...
Compl. at ¶ 64.
II.
According to Morse, the facts alleged constitute violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78t(a) (1988), Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, and common law fraud and negligent misrepresentation.
Milken argues that the claims against him must be dismissed pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and pursuant to Fed.R.Civ.P. 9(b) for failure to plead the circumstances constituting fraud with particularity. He also maintains that portions of the complaint should be stricken pursuant to Fed.R.Civ.P. 12(f).
Under Rule 12(b), the required inquiry is simply whether Morse has alleged facts that, if true, would constitute a violation of securities laws or applicable common law. Because Morse alleges fraud, his claims must also comply with Rule 9(b), which provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Construing Rule 9(b), the Court of Appeals for this Circuit has recently held that "while Rule 9(b) permits scienter to be demonstrated by inference, this `must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.' An ample factual basis must be supplied to support the charges." O'Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991) (quoting Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990)).
A. Section 10(b)
Morse argues that his allegations support recovery against Milken for primary violations of § 10(b), for aiding and abetting primary violations by other defendants, for "control person" liability pursuant to § 20(a), and for conspiring with other defendants to commit violations.
1. Primary Violation
Section 10(b) states that it is unlawful for any person "[t]o use or employ, in connection with the purchase or sale of any security ..., any manipulative or deceptive device or contrivance...." 15 U.S.C. § 78j(b) (1988).
Typically, to state a claim for a primary violation of § 10(b) and Rule 10b-5 a plaintiff must allege that "in connection with the purchase or sale of securities, the defendant, acting with scienter, made a false material representation or omitted to disclose material information and that plaintiff's reliance on defendant's actions caused him injury." Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985).
Milken correctly observes that all of the representations or misleading omissions upon which Morse alleges he relied were contained in statements issued by First Capital, not by Milken, and that Morse has not alleged that Milken had any direct responsibility for preparing or distributing those representations. The complaint's sole allegations of any representations by Milken are that Milken engaged in various deceptive practices to encourage sales of high-risk securities of client companies. The complaint also alleges, in a conclusory fashion, that Milken exercised control over First Capital's investment portfolio. However, Morse has not alleged that plaintiffs were injured by investing in securities about which Milken made misleading statements or omissions. Morse merely alleges that other defendants knew of but denied or omitted to reveal Milken's mismanagement of First Capital's investments and that "[d]efendants' statements to the contrary acted as a fraud upon plaintiff...." Compl. ¶ 64.[3]
*316 Morse argues that acts other than statements made directly to investors can and, in this case, did constitute a "manipulative or deceptive device or contrivance" within § 10(b)'s meaning. He claims that Milken's alleged self-interested creation of an artificially inflated junk bond market in which he caused First Capital to invest was inconsistent with the company's best interests, injured plaintiffs and violated § 10(b).
Morse is correct that unusual methods to defraud investors have been held actionable under Section 10(b). See Competitive Associates, Inc. v. Laventhol, Krekstein, Horwath & Horwath, 516 F.2d 811, 815 (2d Cir.1975) ("[Section] 10(b) and Rule 10b-5 prohibit all fraudulent schemes in connection with the purchase or sale of securities, whether the artifices employed involved a garden type variety of fraud, or present a unique form of deception") (emphasis in original).
However, Morse has failed to identify even an atypical scheme by which Milken defrauded plaintiffs. Plaintiffs complain they were duped into purchasing First Capital stock. They have identified specific misleading statements issued by First Capital upon which they relied, but have complained of no conduct by Milken beyond his alleged maintenance of his "Daisy Chain." The complaint falls short of stating a primary violation of § 10(b) by Milken as to these plaintiffs because its allegations do not establish that Milken's conduct was "in connection with" plaintiffs' purchase of First Capital stock or that his actions caused plaintiffs' injuries within the meaning of § 10(b).
Both the "in connection with" requirement and the causation requirement under § 10(b) concern the nexus between a defendant's behavior and the sale or purchase by which plaintiffs incurred actionable harm. The Court of Appeals for this Circuit has ruled that a plaintiff alleging a broad-based scheme to defraud must "demonstrate causation in fact by showing that defendant's allegedly fraudulent activities were actually responsible for plaintiff's injuries," Bloor, 754 F.2d at 61, and "must assert that the 10(b) violations caused the claimed economic loss. This required causal connection may not be supplied by `but for' allegations." Id. (citations omitted).
In the present case, the allegations of Milken's deception are insufficiently connected to plaintiffs' injury to meet the requirements of Bloor. The harm alleged was directly caused by the corporation's statements, with which Milken is not alleged to have been involved. The complaint provides no factual assertions that support an inference of or establish that plaintiffs directly relied on Milken's actions as they decided to invest in First Capital or that he intended to deceive them as opposed to First Capital itself. The allegedly misleading statements identified in the complaint maintained that careful portfolio management could minimize the exposure associated with First Capital's high risk (junk bond) investments and that expected high returns justified the investments. While these allegedly deceptive statements, all of which were made by First Capital only, may not have been possible without the existence of an apparently vibrant junk bond market created by Milken, that background fact is precisely the type of "but for" causal factor that Bloor instructs is not sufficient to support recovery under § 10(b).
It is true that in some "in connection with" cases, the phrase has been contrued quite broadly. See, e.g., Superintendent *317 of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 12-13, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971) (connection sufficient where deceptive practices "touch" sale of securities). Nevertheless where the "transactional nexus" between a defendant's conduct and a plaintiff's purchase or sale of securities is not established, the claim is not viable. See In re Financial Corp. of America Shareholder Litigation, 796 F.2d 1126, 1129-30 (9th Cir.1986) (insufficient "transactional nexus" where defendant accounting firm recommended accounting method subsequently ruled unacceptable by SEC for asset purchase by plaintiff client). Judged by this rule Milken's alleged actions were simply not "in connection with" plaintiffs' purchase of First Capital securities, as that phrase is used in § 10(b) of the Act.
Accordingly, Morse's claim against Milken for a primary violation of § 10(b) does not satisfy Rule 12(b) and is dismissed.
2. Aider and Abettor Liability
To state a cause of action for aiding and abetting the alleged securities fraud, Morse must allege the following:
(1) the existence of a securities law violation by the primary (as opposed to the aiding and abetting) party;
(2) "knowledge" of this violation on the part of the aider and abettor; and
(3) "substantial assistance" by the aider and abettor in the achievement of the primary violation.
IIT, International Invest. Trust v. Cornfeld, 619 F.2d 909, 922 (2d Cir.1980). Milken argues that the complaint does not sufficiently allege any of these elements as to him.
To begin with Milken contends that the complaint merely alleges corporate mismanagement (in First Capital's failure to establish adequate reserves or invest more prudently) rather than fraud. The argument is not persuasive. The complaint plainly and repeatedly alleges that the defendants caused First Capital to issue statements that its sophisticated management practices adequately safeguarded against the kind of loss eventually suffered by the company and its shareholders when in fact defendants knew that no adequate protections were in place, and that these representations induced plaintiffs to invest detrimentally in First Capital. That allegation states a cause of action for fraud against the primary actors, who were principal owners and officers of First Capital.
Milken argues next that the complaint contains no allegation that Milken knew that First Capital was inducing investors to purchase its shares by disseminating the allegedly misleading statements. While Morse's brief now states that "Milken and Weingarten are alleged to have intentionally misrepresented [First Capital's] financial condition ...", as discussed above there is no allegation in the complaint that Milken made or participated in misrepresentations directly to plaintiffs, nor is there any other allegation which supports the proposition that Milken knew of fraudulent misrepresentations made by others. Accordingly, despite the provision of Fed.R.Civ.P. 9(b) stating that "Malice, intent, knowledge and other condition of mind of a person may be averred generally," Morse's pleadings as to Milken's knowledge are insufficient under Rules 9(b) and 12(b).
Milken also challenges the sufficiency of Morse's claim that Milken substantially assisted the primary actors in their scheme to defraud plaintiffs. Milken's argument presents a close question, particularly under Rule 9(b), although Morse does provide at least a conclusory allegation that Milken's manipulation of the junk bond market facilitated the primary actors' misconduct. In light of the above conclusion that Morse has not alleged Milken's knowledge of First Capital's misrepresentations and misleading omissions, no more definite resolution of the substantial assistance question is necessary.
Because of Morse's failure adequately to allege Milken's knowledge of the primary violations, Morse's claim that Milken aided and abetted others' violation of the securities laws is dismissed pursuant to Rules 9(b) and 12(b).
*318 3. Control Person Liability
Section 20(a) of the Securities Exchange Act provides, "Every person who, directly or indirectly, controls any person liable under any provision of this chapter ... shall also be jointly and severally liable with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action." 15 U.S.C. § 78t(a).
As with claims of liability for aiding and abetting a securities law violation, to assert a "control person" claim pursuant to § 20(a) plaintiffs must allege the existence of a primary violation and defendant's knowledge of that violation. See Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962, 979 (E.D.N.Y.1988), vacated in part on other grounds sub nom. In re Crazy Eddie Securities Litigation, 714 F.Supp. 1285 (E.D.N.Y.1989). Plaintiffs also "must plead that the defendant had `the power to exercise control over the primary violator, based on a special relationship such as agency or stock ownership.'" Id. (quoting Index Fund, Inc. v. Hagopian, 609 F.Supp. 499, 506 (S.D.N.Y.1985)).
As discussed above, Morse has not made the requisite allegation of Milken's knowledge pursuant to Rule 12(b).
Moreover, Morse has not alleged sufficiently that Milken enjoyed any power whatsoever over First Capital's actions. The complaint does make the conclusory statement that Milken exercised control over First Capital's investments in furtherance of his "Daisy Chain," but does not identify any position or title that Milken held at First Capital, nor does it identify any meetings which he attended or conversations which he had with any of the company's officers. Even allowing for the leniency of our pleading rules, Morse's allegations are insufficient.
Accordingly, Morse's claim of Milken's control person liability is dismissed pursuant to Rule 12(b).
4. Conspiracy
To state a claim of conspiracy, the complaint must allege "an agreement between two or more persons to accomplish an unlawful purpose, their intentional participation in the furtherance of the plan or purpose, and the resulting damage." First Federal Savings & Loan Ass'n v. Oppenheim, Appel, Dixon & Co., 629 F.Supp. 427, 443 (S.D.N.Y.1986).
We have searched the complaint for allegations of conspiracy between Milken and the principal actors and have found only the vague statement, "Each of the defendants is liable as a direct participant in, as a co-conspirator and as an aider and abettor of the wrongs complained of herein." Compl. at ¶ 70.[4] This allegation is totally inadequate because the complaint does not anywhere identify any conspiratorial agreement involving Milken.
One cannot agree to what one does not know. Because Morse has not alleged Milken's knowledge of primary violations, it follows that Milken has not sufficiently been alleged to have joined into a conspiracy to accomplish those violations. Although plaintiffs contend that their claims of an agreement between Milken and Weingarten to further the "Daisy Chain" by causing First Capital to invest in high risk bonds state a conspiracy claim, it remains the case that such a conspiracy, if it did exist, would have as its victims First Capital itself (through its investment in overvalued Milken products) and perhaps more broadly all investors in high risk securities which allegedly were overvalued as a result of Milken's efforts to inflate the market for such securities. The plaintiffs in this suit, however, were harmed not by investing in Milken products but by investing in First Capital stock.
*319 Accordingly, Morse's claim that Milken conspired to violate the securities laws is dismissed pursuant to Rule 12(b).
B. Fraud and Negligent Misrepresentation
Morse's second and third causes of action are for common law fraud and negligent misrepresentation under New York law.
To state a claim for common law fraud in New York, a plaintiff must allege 1) the defendant's misrepresentation or omission of a material fact, 2) the defendant's intent to deceive plaintiff, 3) justifiable reliance upon the misrepresentation by the defrauded party, and 4) that the plaintiff's injury was caused by the defendant's misrepresentation or omission. See Idrees v. American University of Caribbean, 546 F.Supp. 1342, 1346 (S.D.N.Y.1982); Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 803, 250 N.E.2d 214, 218 (1969). Because these elements are substantially identical to those governing § 10(b), the identical analysis applies here, and accordingly Morse has failed to allege facts which if proven would support his common law fraud claim. That claim is dismissed.
Since Morse has not made allegations which tie Milken to any misrepresentations or omissions which were made, his claim of negligent misrepresentation is dismissed.[5]
C. Motions to Strike
Milken moves pursuant to Rule 12(f) to strike references in the complaint to his criminal conviction and income level.
Rule 12(f) authorizes the striking of "any redundant, immaterial, impertinent, or scandalous matter." Such motions are left to the court's discretion. See Payne v. Howard, 75 F.R.D. 465, 467 (D.D.C.1977).
The complaint's reference to Milken's criminal conviction and his income level are immaterial and impertinent to this case, and may be "scandalous." Neither Milken's income nor the outcome of his celebrated criminal prosecution bears remotely on the merits of this case. Reference to those matters serves no purpose except to inflame the reader. Although courts have commented that motions to strike pursuant to Rule 12(f) "are not favored" and should be denied "especially if the presence of the material does not prejudice the moving party," Schramm v. Krischell, 84 F.R.D. 294, 299 (D.Conn.1979), here there is no reason to allow those references to remain in the complaint.
Conclusion
Milken's motion is granted pursuant to Rule 12(b) as well as 9(b) and all claims against him are dismissed. His motion to strike is granted.
It is so ordered.
NOTES
[1] The suit has been brought as a class action but not certified as such by this Court.
[2] The Amended Complaint refers at ¶ 3 to a bankruptcy filing date of May 30, 1990, but that apparently is a typographical error.
[3] Morse's brief baldly asserts several claims which do not appear in the complaint, namely that Milken's "`course of business' operated a fraud upon plaintiff," Pl. Brief at 11, that Milken knew that investors would rely on the sham market he allegedly created in purchasing shares in companies that invested in his financial products, Pl. Brief at 13, and that plaintiffs so relied to their detriment. Pl. Brief at 4. The first observation is so conclusory that even if it appeared in the complaint it would add nothing to the allegations already included in it; the other two, if properly pled, might come closer to alleging that Milken defrauded First Capital's investors. Even if these belated claims appeared in the complaint, however, there would be some doubt whether the alleged acts were "in connection with" plaintiffs' purchase of First Capital stock or caused their injuries. Moreover, the brief's casual statements concerning Milken's knowledge would be insufficient under Rule 9(b) even if they were included in the complaint.
[4] Morse's brief does not identify any specific passage of its complaint as supporting his conspiracy claim.
[5] While this decision dismisses Morse's state law claims, even if those claims were to survive the present motion it would be improvident to exercise pendent jurisdiction over them in the absence of federal claims against Milken where, as here, neither the court nor the parties have yet devoted substantial time or resources to the state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
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777 F.Supp. 1579 (1991)
MORLEY MUSIC CO., WB Music Corp., Gerald Marks and Jerry Herman, Plaintiffs,
v.
CAFE CONTINENTAL, INC. and Alfred L. Cohen, Defendants.
No. 91-6019-CIV.
United States District Court, S.D. Florida.
November 4, 1991.
*1580 David M. Rogero of Blackwell & Walker, P.A., Miami, Fla., for plaintiffs.
Randall L. Leshin, Ft. Lauderdale, Fla., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PAINE, District Judge.
1. The Plaintiffs, as evidenced by copyright registration certificates and assignments, are the owners of the copyrights of the following musical compositions:
2. The Plaintiffs are also members of the American Society of Composers, Authors and Publishers ("ASCAP"), an unincorporated association of more than 48,000 writers and publishers of musical compositions. Each member, including the Plaintiffs in this action, have granted ASCAP the nonexclusive right to license nondramatic public performances of their works.
3. To protect the approximately four million songs in its catalogue, ASCAP has district offices throughout the country that are responsible for contacting and licensing establishments, such as radio and television stations, restaurants and others who desire to lawfully perform its members' musical compositions. Blanket licenses grant said establishments the right to perform any and all of the works owned by the members or affiliates as often as desire for a stated term.
4. The Defendant, CAFE CONTINENTAL, INC. ("CAFE"), is a Florida corporation which owns and operates Cafe Continental, a dining and entertainment establishment in Fort Lauderdale, Florida. Musical compositions have been publicly performed for the patrons of Cafe Continental since 1986.
5. ALFRED L. COHEN ("COHEN") is president and sole shareholder of CAFE, as well as Cafe Continental's manager and operator of day to day affairs. His responsibilities include, inter alia, the engagement of musical acts to perform at Cafe Continental.
6. On November 13, 1986, a representative from ASCAP's Miami District Office visited Cafe Continental and found that musical compositions were being performed there by mechanical means.
*1581 7. Between November 18, 1986 and June 22, 1990, the parties exchanged correspondence and, on five to eight occasions, personally discussed federal copyright law and the availability of a blanket license to permit the public performance of musical works in the ASCAP repertoire. Over this period of time, ASCAP submitted, on eight to ten opportunities, a proposed license agreement for approval.
8. Apparently dissatisfied with the prolonged nature of "discussions," ASCAP engaged George and Ruth Bolotin to conduct a "musical inspection" of Cafe Continental. A "musical inspection" involves visiting an establishment suspected of playing of a song copyrighted by an ASCAP member and collecting information on: (a) the physical arrangement of the business; (b) the music system in use; (c) a description of live performers; and (d) the music performed.
9. The testimony of Ruth Bolotin, which the court finds credible, indicates that on October 14, 1990, the following songs were publicly performed, without the Plaintiffs' permission, by musicians at Cafe Continental:
10. On January 10, 1991, the Plaintiffs commenced this action, alleging copyright infringement on the part of the Defendants, seeking statutory damages, costs and attorneys' fees, as well as a permanent injunction prohibiting further unauthorized performances of their copyrighted works.
11. Thereafter, ASCAP hired George and Ruth Bolotin to conduct a second "musical inspection" of Cafe Continental. The testimony of Ruth Bolotin indicates that on April 6, 1991, the following musical compositions were publicly performed, without the Plaintiffs' permission, by musicians at Cafe Continental:
*1582 12. On August 30, 1991, CAFE filed for reorganization pursuant to Chapter 11 of the United States Bankruptcy Code, because of the "potentially large judgment ... and massive attorneys' fees" which could be awarded in this litigation. The bankruptcy proceedings involving CAFE operates as a stay of this action as to the corporation, pursuant to 11 U.S.C. § 362, but does not, in light of the facts and merits of this case, bar suit against the non-debtor, COHEN. In re Anje Jewelry Co., Inc., 47 B.R. 485 (Bankr. E.D.N.Y.1983); In re Trails End Lodge, Inc., 45 B.R. 597 (Bankr.D.R.I.1984).
CONCLUSIONS OF LAW
13. In enumerating the powers vested in the federal government, Article I, Section 8 of the United States Constitution, grants Congress the power:
[t]o promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.
It is from this clause that the federal authority to enact copyright and patent legislation is derived. 1 Melville B. Nimmer, Nimmer on Copyright § 1.02 at 1-30 (1991).
14. Acting on that authority, the very first Congress enacted a federal copyright protection statute in 1790. Act of May 31, 1790, chap. 15, 1 Stat 124. That statute, in its current form, 17 U.S.C. § 101 et seq., grants the owner of the copyright of a musical work the exclusive right to perform their composition publicly and to authorize the public performance of their work. See 17 U.S.C. § 106.
15. Copyright owners may, however, assign these rights to third parties, such as ASCAP, who act as intermediaries between the copyright owners and persons and businesses interested in performing the works publicly. See 17 U.S.C. § 201.
16. To prove a claim of copyright infringement, the Plaintiffs must show: (1) the originality and authorship of the compositions involved; (2) compliance with the formalities of the Copyright Act to secure a valid copyright; (3) a proprietary right in and to the copyrights at issue; and (4) the Defendant's public performance of their works, not authorized by the Plaintiffs' or their representatives. Broadcast Music v. Palmer, 672 F.Supp. 531, 533 (D.Me.1987); Van Halen Music v. Palmer, 626 F.Supp. 1163, 1165 (W.D.Ark.1986); LaSalle Music Publishers, Inc. v. Highfill, 622 F.Supp. 168, 168-69 (W.D.Mo.1985).
17. A prima facie case as to the first three criteria has been established by the Plaintiffs' submission of copies of the works' copyright registration certificates and assignments. Van Halen, 626 F.Supp. at 1165. See Fourth Floor Music, Inc. v. Der Place, Inc., 572 F.Supp. 41, 43 (D.Neb. 1983). See 17 U.S.C. § 410(c).
18. As to the final factor, any person who violates the exclusive rights of a copyright owner is an infringer of that copyright and an individual may be held liable for copyright infringement even if they did not perform the musical composition. See Southern Bell Tel. & Tel. v. Assoc. Telephone Dir., 756 F.2d 801, 811 (11th Cir.1985); Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971).
19. Liability may also extend vicariously to corporate officers who have a dominant influence in a corporation and who have the capacity to control the acts of that corporation:
[a]n individual, including a corporate officer, who has the ability to supervise infringing activity and has a financial interest in that activity, or who personally participates in that activity is personally liable for the infringement.
Southern Bell, 756 F.2d at 811 (quoting Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F.Supp. 900, 904 (S.D.N.Y.1981)). See Nick-O-Val Music Co., Inc. v. P.O.S. Radio, Inc., 656 F.Supp. 826, 828 (M.D.Fla.1987); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 913-14 (D.Conn.1980).
20. Applying this standard to the findings of fact, the undersigned concludes *1583 that COHEN is liable for copyright infringement.
21. A Plaintiff is entitled to a permanent injunction in a copyright action when liability has been established and where there is a threat of continuing violations. Universal City Studios, Inc. v. Sony Corporation of America, 659 F.2d 963, 976 (9th Cir.1981). Pursuant to 17 U.S.C. § 502(a), this court may grant "temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." Because the Defendant's conduct demonstrates his tendency to ignore both ASCAP and the copyright owner's rights, COHEN is permanently enjoined from performing the infringed compositions, unless and until he obtains the appropriate license to publicly perform those works.
22. Under 17 U.S.C. § 504(a), the Plaintiffs may also recover either actual damages and profits or, as elected in this instance, statutory damages. Section 504(c) provides that:
the copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, in a sum not less than $500 or more than $20,000 as the court considers just.
23. Factors which are to be considered in determining the measure of statutory damages are: (1) the expenses saved and profits reaped by the Defendant in connection with the infringements; (2) the revenues lost by the Plaintiffs as a result of the Defendant's conduct; and (3) the infringers' state of mind, that is, whether willful, knowing, or merely innocent. Nick-O-Val, 656 F.Supp. at 829; Boz Scaggs, 491 F.Supp. at 914. An award of "substantial damages, well in excess of appropriate licensing fees," is appropriate where the Defendant "repeatedly violates copyright laws despite actual knowledge of their licensing requirements." Coleman v. Payne, 698 F.Supp. 704, 708 (W.D.Mich. 1988).
24. As stated previously, from November 18, 1986 to June 22, 1990, the parties exchanged correspondence and had repeated discussions of federal copyright law and the availability of an ASCAP blanket license. In order to protect their copyright interests, the Plaintiffs were forced to seek relief from the undersigned. Despite the filing of this action, the Defendant remains unlicensed, while continuing the public performance of songs from the ASCAP catalogue. Taking this into consideration, and the fact that from October 1, 1986 until December 31, 1991, COHEN will have avoided a total of $2,582.91 in license fees, the court finds that statutory damages in the amount of $1,500 per infringement appropriate.
In view of all the foregoing, it is hereby ORDERED and ADJUDGED that Judgment shall be entered in accordance with these Findings of Fact and Conclusions of Law.
DONE and ORDERED.
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777 F.Supp. 828 (1991)
FEDERAL DEPOSIT INSURANCE CORPORATION, a corporation existing under the laws of the United States, as Receiver for the Bank of Winter Park, Plaintiff,
v.
Robert W. ISHAM, Eleanor J. Isham, Richard R. Mulligan, Lemont A. Hale, George C. Engel, Dan Leahy, William E. Jennings, Larry S. Chance, and Richard R. Ramler, Defendants.
Civ. A. Nos. 90-B-1983, 90-B-2004.
United States District Court, D. Colorado.
October 25, 1991.
*829 Wiley Y. Daniel, David S. Fein, Popham, Haik, Schnobrich & Kaufman, LTD., P.C., Gary M. Jackson, Di Manna & Jackson, Denver, Colo., and Ervin L. Jones, Jr., Federal Deposit Ins. Corp., Professional Liability Sec., Washington, D.C., for plaintiff.
Richard L. Eason, Eason, Sprague & Wilson, P.C., Denver, Colo., for defendant George Engel.
Max A. Minnig, Jr., Carpenter & Klatskin, P.C., Denver, Colo., for defendant Larry Chance.
Joseph F. Colantuno, Morrato, Burrus & Colantuno, P.C., Englewood, Colo., for defendants R. Isham and E. Isham.
Patrick T. Murphy, Denver, Colo., for defendant Mulligan.
Jon F. Sands, Bostrom & Sands, P.C., Denver, Colo., for defendant, Richard Ramler.
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
Defendants Robert and Eleanor Isham (the Ishams) move for judgment on the pleadings, contending that plaintiff's action for negligence and breach of fiduciary duty is preempted by 12 U.S.C. § 1821(k) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). The Ishams also contend that C.R.S. § 11-5-107 requires dismissal. Defendant George C. Engel (Engel) joins in that motion and also moves for summary judgment, arguing that the plaintiff lacks standing and that § 1821(k) precludes actions based upon any standard of care more stringent than gross negligence. Defendant Richard R. Mulligan (Mulligan) joins in Engel's summary judgment motions. Plaintiff Federal Deposit Insurance Corporation as Receiver for the Bank of Winter Park (FDIC-Receiver) moves under Fed.R.Civ.P. 17(a) for substitution of FDIC-Corporate as plaintiff in this action.
The issues were adequately briefed and oral argument will not materially assist their resolution. Because FDIC-Corporate is the real party in interest here, plaintiff's motion to substitute FDIC-Corporate for FDIC-Receiver is granted. Section 1821(k) of FIRREA does not preclude state law actions alleging simple negligence or breach of fiduciary duty against former directors and officers and, therefore, the Isham's motion for judgment on the pleadings and Engel's motion for summary judgment are denied. Further, since FDIC-Corporate is now the plaintiff here, C.R.S. § 11-5-107 is not applicable, and the motions for judgment on the pleadings and summary judgment based on this statute are denied.
This action arose out of the failure of the Bank of Winter Park (the Bank). On November 10, 1987, the Colorado State Bank Board found an emergency existed at the Bank and authorized the Colorado State *830 Bank Commissioner to take possession of the Bank. Under C.R.S. § 11-5-105, the Commissioner appointed FDIC receiver for the Bank. Upon acceptance of this receivership, FDIC took possession of and title to all assets of the Bank, including all claims for damages asserted in this action. On November 11, 1987, FDIC-Receiver sold and assigned the right to sue the Bank's former directors and officers to FDIC-Corporate.
FDIC-Receiver filed this action on November 7, 1990 against several former directors and officers of the Bank, alleging breach of fiduciary duties and negligence in numerous loan transactions. These motions followed. Because the Ishams' and Engel's motions for dismissal where filed after they answered the complaint, I will treat them as Fed.R.Civ.P. 12(c) motions for judgment on the pleadings.
I.
The plain language of Fed.R.Civ.P. 17(a) states that an action shall not be dismissed for failure to prosecute in the name of the real party in interest until a reasonable time has been allowed after objection for substitution of the real party in interest. Audio-Visual Marketing Corp. v. Omni Corp., 545 F.2d 715 (10th Cir. 1976). In a motion to substitute the real party in interest, I look to whether defendant had fair notice of the action and whether the substitution will alter the claim to the prejudice of defendant. Garcia v. Hall, 624 F.2d 150 (10th Cir.1980).
Defendants clearly had notice of FDIC's claims against them when the original complaint was served. The mere change of plaintiff from FDIC-Receiver to FDIC-Corporate does not change the nature of those claims, nor does it inject any new elements into this action. Thus, I conclude that defendants will not be prejudiced and grant plaintiff's motion for substitution.
Engel's motion for summary judgment based on plaintiff's lack of standing is based wholly on the argument that FDIC-Receiver cannot bring this action because it assigned all its rights to FDIC-Corporate. My ruling on plaintiff's motion for substitution moots the standing issue. Accordingly, that motion is denied.
II.
Section 1821(k) provides:
A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or direction of the Corporation, which action is prosecuted wholly or partially for the benefit of the Corporation ... for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable state law. Nothing in this paragraph shall impair or affect any right of the Corporation under other applicable law.
(emphasis added). There is no dispute that this section preempts state law to the extent that state law would prohibit an action against a former director or officer based on gross negligence. Rather, the issue is the meaning of the savings clause. Defendants contend that the phrase "other applicable law" only refers to federal law and that the section imposes a national standard of gross negligence on all FDIC actions against directors. On the other hand, plaintiffs argue that the savings clause allows states to impose a higher duty of care on directors and officers, such as simple negligence. In effect, plaintiff argues that the section establishes a national minimum standard of director liability but that the states are free to impose increased liability. I agree with plaintiff.
Courts considering this question have split. See, FDIC v. McSweeney, 772 F.Supp. 1154 (S.D.Cal.1991); FDIC v. Hubbard, 779 F.Supp. 66 (S.D.Tex.1991); FDIC v. Burrell, 779 F.Supp. 998 (N.D.Iowa 1991); FDIC v. Baker, No. SA CV 89-386 AHS (C.D.Cal. June 24, 1991); FDIC v. Haddad, No. 90-07790-CIV-ATKINS (S.D.Fla. Nov. 28, 1990). But see, Gaff v. FDIC, 919 F.2d 384 (6th Cir.1990); FDIC v. *831 Swager, 773 F.Supp. 1244 (D.Minn.1991); FDIC v. Canfield, 763 F.Supp. 533 (D.Utah 1991).
Plaintiff initially argues that the savings clause is clear and should be enforced as to its plain meaning. Both plaintiff and defendants construe the clause plausibly. I conclude that the clause is ambiguous in its scope. Therefore, I look to the rules of statutory construction and congressional intent to determine its meaning.
When Congress enacts a statute that creates or recognizes rights, the general rule is that existing common law rights are not thereby replaced, absent a clear and unequivocal statement by Congress. Norfolk Redevelopment and Housing Authority v. Chesapeake and Potomac Tel. Co., 464 U.S. 30, 35, 104 S.Ct. 304, 307, 78 L.Ed.2d 29 (1983), ("[T]he common law ... ought not be deemed repealed, unless the language of the statute be clear and explicit for this purpose"). Not only does § 1821(k) lack a clear and explicit clause repealing state common law, it contains the very antithesis of a repealer a savings clause.
A statute also must be construed to effectuate its purposes as defined by Congress. Dole v. United Steelworkers, 494 U.S. 26, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990). Likewise, the circumstances surrounding the enactment of legislation are relevant to its construction. Commissioner v. Engle, 464 U.S. 206, 104 S.Ct. 597, 78 L.Ed.2d 420 (1984).
FIRREA was enacted in 1989 in response to this nation's banking crisis. Through FIRREA, Congress intended to address bank failures caused by officer and director misconduct. See e.g., S.Rep. 101-19, 101st Cong. 1st Sess. 9 (1989). The stated purposes of FIRREA are, inter alia, to strengthen FDIC's enforcement powers and its ability to obtain civil awards against those who defrauded or damaged insured institutions. P.L. 101-73, § 101(5), (9) and (10). In this light it is unreasonable to conclude that Congress intended to limit the FDIC's power to obtain damage awards by preempting state common law remedies that impose a higher standard of care on directors and officers. Indeed, the explicit purpose of section 1821(k) is to increase the FDIC's power by preempting state laws that insulated directors or officers from damage actions.
Finally, FIRREA's legislative history supports plaintiff's reading of the savings clause. Section 1821(k) was originally proposed in the Senate's version of FIRREA. The Senate sponsors of the Act explained:
In recent years, many states have enacted legislation that protects directors or officers of companies from damage suits. These "insulating" statutes provide for various amounts of immunity to directors and officers. For example, in Indiana, a director or officer is liable for damages only if his conduct constitutes "willful misconduct or recklessness."
The reported bill totally preempted State law in this area with respect to suits brought by the FDIC against bank directors or officers. However, in light of the State law implications raised by this provision, the managers' amendment scales back the scope of this preemption. Under the managers' amendment, state law would be overruled only to the extent that it forbids the FDIC to bring suit based on "gross negligence" or an "intentional tort."
135 Cong.Rec. S4278-79 (April 19, 1989). A section 1821(k) analysis prepared by the bill's sponsors before the final Senate vote stated:
This subsection does not prevent the FDIC from pursuing claims under State law or under other applicable Federal law, if such law permits the officers or directors of a financial institution to be sued (1) for violating a lower standard of care, such as simple negligence, or (2) on an alternative theory such as breach of contract or breach of fiduciary duty.
135 Cong.Rec. S6912 (June 19, 1989). The Act with § 1821(k) passed both houses on August 4, 1989 in a version substantially identical to the amended "scaled back" version passed by the Senate in June. Indeed, *832 the Conference Committee Report again states that the statute preempts state law only to the extent necessary to "allow ... FDIC to pursue claims for gross negligence...." H.Conf.Rep. 101-222, 101st Cong. 1st Sess. 398 (1989), U.S.Code Cong. & Admin.News 1989, pp. 86, 437.
Therefore, given the lack of a repealer clause, the purpose of the Act, and its legislative history, I hold that § 1821(k) preempts state law only to the extent that state law would prohibit a director liability action based on at least gross negligence. It does not preempt state law which imposes a higher standard of care, such as negligence, or recognizes a cause of action for breach of fiduciary duties.
Relying on Gaff, 919 F.2d at 387, ("The legislative history of this provision explicitly states an intent to nationalize the law of director's and officer's liability when banks are taken over by the FDIC"), defendants argue that Congress' intent was to impose national standards for FDIC actions against bank directors and officials. My holding recognizes a national standard. Notwithstanding any state law, directors and officers will be liable for at least gross negligence. This is the national minimum standard of care imposed by § 1821(k). However, states are free under FIRREA to impose a higher standard of care or to create other causes of action.
III.
C.R.S. § 11-5-107 provides:
Among its other powers, the federal deposit insurance corporation, in the performance of its powers and duties as such liquidator, has the right and power, upon the order of a court of record of competent jurisdiction, to enforce the individual liability of the directors of any such banking institution.
Defendants argue this statute requires a "preliminary hearing" or some kind of initial screening by "a court of competent jurisdiction" before the FDIC can even file a director liability action. Plaintiff contends that this requirement is preempted by federal statutes which grant jurisdiction to federal district courts to hear FDIC actions against former directors and officers of failed banks.
This statute has never been construed. However, I do not have to interpret its meaning to dispose of defendants' motions. By its own terms, the statute applies only to FDIC when it is acting as a liquidator or receiver. On its face, the statute is inapplicable because I granted plaintiff's motion to substitute FDIC-Corporate as the plaintiff.
Accordingly, IT IS ORDERED THAT:
(1) Plaintiff's motion to substitute FDIC-Corporate as plaintiff is GRANTED;
(2) The Isham's motion for judgment on the pleadings is DENIED;
(3) Engel's motion for judgment on the pleadings and motion for summary judgment on count 1 is DENIED;
(4) Engel's motion for summary judgment re: standing is DENIED;
(5) Engel's motion for summary judgment re: C.R.S. § 11-5-107 is DENIED;
(6) Mulligan's motion for summary judgment is DENIED.
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280 Pa. Superior Ct. 427 (1980)
421 A.2d 796
COMMONWEALTH of Pennsylvania
v.
Gerald R. WENTZ, Appellant.
Superior Court of Pennsylvania.
Submitted April 10, 1978.
Filed August 22, 1980.
Petition for Allowance of Appeal Granted January 9, 1981.
*428 *429 *430 Wilbert H. Beachy, III, Public Defender, Somerset, for appellant.
Frederick F. Coffroth, District Attorney, Somerset, for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH, HESTER and WATKINS[*], JJ.
WATKINS, Judge:
This is an appeal from the order of the Court of Common Pleas of Somerset County, Criminal Division, by the defendant-appellant, Gerald Wentz, after conviction of operating a motor vehicle after the operating privileges were suspended on which charge he entered a guilty plea and of operating a motor vehicle under the influence of intoxicants on which charge he was convicted by a jury. In this appeal, the defendant claims that he was denied his Sixth Amendment right to counsel at his guilty plea and at his jury trial. Defendant was sentenced to concurrent prison terms of from one (1) to three (3) years as a result of the said convictions.
Defendant was charged with the instant offenses on February 22, 1977. He was preliminarily arraigned and subsequently waived his right to preliminary hearing. The case was then returned for court action.
The defendant was arraigned on May 2, 1977. He appeared at his arraignment without counsel and entered a plea of not guilty. At that time he was admonished by the arraignment judge to obtain counsel. He entered his not guilty plea by stating that: "If I can get a good lawyer here, I'll plead not guilty". Criminal trials for the May Term of court were scheduled for a consecutive two-week *431 period beginning May 23, 1977. Despite the court's admonishments to the defendant to the effect that he should obtain counsel, defendant appeared on May 23, 1977 without counsel. At that time he indicated to the court that he had requested "free" counsel. The court advised the defendant that because he was working he was not entitled to "free" counsel. He had been advised by the court on May 2, 1977 that he was not eligible for "free" counsel after the defendant had indicated a desire to obtain a court-appointed attorney. During a pre-trial colloquy on May 23, 1977 the defendant indicated that he had not obtained counsel and also failed to indicate that he had attempted to obtain private counsel of his own. During a discussion relative to the fact that the defendant had appeared without counsel the court below stated to the defendant that: "You're going to have to make up your mind." The defendant replied that: "I don't know any attorneys right around here." The defendant then admitted that he had known of the trial date for "weeks and weeks". His excuse for appearing without counsel was that he was from another county and didn't know any attorneys "around here". At that point the court directed the Sheriff to assist the defendant in picking a jury. At the start of the trial the defendant stated to the court that he was indeed "under suspension" when apprehended but denied being under the influence. The Sheriff then assisted the defendant in choosing the jury, the case proceeded to trial before the jury on the "operating under the influence charge" and after the trial the jury returned a verdict of guilty against the defendant. Defendant now claims that the court "coerced" him into going to trial without an attorney thereby depriving him of his Sixth Amendment right to counsel. Defendant claims that the court should have granted him a continuance so that he could seek the assistance of counsel. Defendant had filed no post-trial motions but now appeals from the order sentencing him on the said convictions.
There is no doubt that a defendant has the right to the assistance of counsel in a criminal prosecution under *432 both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Constitution of the Commonwealth of Pennsylvania. This right clearly extends to all critical stages of a prosecution. Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964). It has been specifically held that a person charged with the offense of operating a motor vehicle under the influence of intoxicants is entitled to representation by counsel. Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). Of course, the right to representation by counsel may be waived by a criminal defendant just as he may waive other individual rights. This is so because the right is the defendant's and the defendant's alone. Commonwealth v. Lowery, 276 Pa. Super. 569, 419 A.2d 604 (1980). However, the right to counsel must be "knowingly and intelligently waived" before an accused will be sent to jail upon a conviction entered when he was not represented by counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In the instant case the defendant argues that the court below "coerced" him into proceeding to trial pro se thereby depriving the defendant of his right to counsel. We do not agree. The defendant had been served with a criminal complaint on February 22, 1977. Any reasonable person should be aware that the initiation of criminal charges against them is a serious matter which demands the assistance of a person trained to assist others in such situations. However, defendant failed to obtain counsel and on May 2, 1977 appeared at his arraignment without counsel. If the defendant had any doubts about the seriousness of his situation, those doubts should have been resolved on May 2, 1977 when the arraignment judge informed the defendant that he should retain an attorney for his trial which was to take place on May 23, 1977. Again, defendant did nothing and appeared in court on May 23, 1977 without counsel. When asked by the trial court about any arrangements he had made to retain counsel the defendant gave no indication that he had made any reasonable attempt to obtain the assistance of an attorney and furthermore gave no indication that he had any concrete plans to do so in the future. The only evidence of any *433 attempt to obtain counsel were his statements that he desired "free" counsel. When the trial court was informed by the defendant that his income was between $350 and $400 every two weeks it informed the defendant that he was not entitled to "free" counsel and should seek a private attorney. Moreover, the public defender denied receipt of any application from the defendant.
Given this set of circumstances we cannot agree with the defendant's claim that the trial court "coerced" him into going to trial per se. No one ever told the defendant that he could not be represented by an attorney and no one ever prevented any attorney from representing him. To the contrary, the defendant was admonished to retain an attorney which he did not do. Furthermore, the defendant gave no indication that he had any plans to do so. Defendant's claim that the court should have granted him a continuance under these circumstances is meritless. The trial court had no reason to believe that if it continued defendant's trial, sua sponte, for another week, month, or even year that the defendant would appear in court at that future time with an attorney.[1] To continue the matter under these circumstances would have been merely to delay the time when defendant would have to stand trial with no assurance that he would be in any different posture, insofar as representation is concerned, at that future date. As such we hold that the court below did not deny defendant the assistance of counsel when it ordered defendant to stand trial as scheduled but that the defendant denied himself the assistance of counsel when he failed to take steps to retain counsel despite the admonishments of the trial court.
Defendant would have us hold that written waiver of the right to counsel must be executed by a criminal defendant before it can be held that he waived his right to counsel. This we refuse to do. The waiver of the right to counsel differs substantially from the waiver of other constitutional rights in several respects. For example, the waiver *434 of the Fifth Amendment right against self-incrimination requires some affirmative act (the signing of a written statement, an admission, a confession) on the part of the accused. Therefore, before it can be held that an accused waived such right it must be shown that he did so knowingly, voluntarily, and with full knowledge of his right not to do so. All a defendant has to do to exercise his right against self-incrimination is to do nothing or remain silent. Logically, then a heavy burden is placed on the one claiming that a person waived those rights. Unlike the exercise of a Fifth Amendment right which requires a defendant to do nothing in order to exercise it, the right to counsel requires some affirmative act on the part of the accused (i.e. the retention of counsel to represent him on the charges against him) for the right to be exercised. The defendant may thus waive his right to counsel by doing nothing. Were we to hold that a defendant may not be tried without counsel unless he had executed a written waiver we would place our trial courts in a "Catch-22" situation in that a "court wise" criminal defendant could continually appear in court without counsel on the date scheduled for his trial but refuse to execute a written waiver of his right to counsel making it impossible to proceed with his trial. Obviously such a situation would render the judicial system a mockery. We hold that a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel. Since that is what happened in the instant case we reject defendant's contention that he was unconstitutionally deprived of his right to counsel and affirm his "driving under the influence" conviction.
With respect to the defendant's guilty plea on the charge of driving while under suspension the following exchange took place between the court and the defendant:
"THE COURT: HOW ARE YOU GOING TO PLEAD TO THE OTHER CHARGE?
*435 "MR. WENTZ: I CAN'T GET OUT OF THAT.
"THE COURT: YOU WERE UNDER SUSPENSION?
"MR. WENTZ: YES, YOUR HONOR."
At the time of his arrest the offense of operating under suspension was a misdemeanor punishable by a fine and a prison term of up to three (3) years. 75 P.S. 624(6). (The offense has since been reduced to a summary pursuant to 75 P.S. 1543, effective July 1, 1977). It is apparent that under the standards for guilty plea colloquies set forth in Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) that the above exchange is woefully inadequate. Nowhere was defendant told of the elements of the crime, the range of permissive sentences which could be imposed upon him as a result of his plea, nor was he informed of the various rights which must be announced to a criminal defendant at the time of his plea in order for his plea to be valid. As such we reverse the defendant's conviction for operating under suspension and remand that charge to the court below for proper disposition.
Judgment of sentence on the "operating under the influence charge" is affirmed; case is remanded for a new trial on the "driving under suspension" charge.
SPAETH, J., files a concurring and dissenting opinion in which HOFFMAN and HESTER, JJ., join.
PRICE, J., concurs in the result.
JACOBS, former President Judge, did not participate in the consideration and decision of this case.
SPAETH, Judge, concurring and dissenting:
I agree with the majority that the colloquy preceding appellant's plea of guilty to the charge of operating a motor vehicle after his operating privileges had been suspended was inadequate, and that therefore the judgment of sentence entered on appellant's plea must be vacated. However, I should also vacate the judgment of sentence entered on appellant's conviction on the charge of operating a motor vehicle under the influence of intoxicating liquor, for in my *436 opinion, appellant should not have been required to stand trial on that charge without the assistance of counsel.[1]
When appellant was arraigned on May 2, 1977, he appeared without counsel and entered a plea of not guilty. As the majority observes, he was informed by the court that he was not eligible for court-appointed counsel, and was advised to retain private counsel before the trial, which was scheduled for May 23, 1977. Appellant appeared for trial, but without counsel. There then occurred the following exchange between the trial judge and appellant:
THE COURT: What do you want, Mr. Wentz? Do you want to plead not guilty or guilty?
MR. WENTZ: I requested an attorney appointed by the Court. I didn't get no answer.
MR. CASCIO [Assistant District Attorney]: He had appeared at arraignment and was advised to file application for counsel.
MR. BEACHY [Public Defender]: That isn't true. We didn't receive any Application at all. I understand from the Magistrate he did give the defendant a copy of an Application, and the Magistrate indicated to me he had given this individual an Application, but there was never one received.
THE COURT: We never received any from you, Mr. Wentz. What did you do with it?
MR. WENTZ: I put one in the mail. I mailed it to the Courthouse.
THE COURT: It isn't here.
MR. WENTZ: Last Monday.
THE COURT: Aren't you working?
MR. WENTZ: Yes, I worked last night.
*437 THE COURT: How much do you make?
MR. WENTZ: I don't have the same job all the time.
THE COURT: How much do you make?
MR. WENTZ: I make around $350 to 400 in two weeks.
THE COURT: You wouldn't be entitled to a free lawyer. You're going to have to make up your mind.
MR. WENTZ: I don't know any attorneys right around here.
THE COURT: You've had plenty of time haven't you?
MR. WENTZ: I don't know any.
THE COURT: I understand, but you've had plenty of time. You've known about this trial for weeks and weeks, haven't you?
MR. WENTZ: Yes, I have.
THE COURT: All right, you're scheduled for trial today. We are ready to give you a trial, so you stay here and we'll give you the trial. Did you plead in this case?
MR. WENTZ: I pleaded not guilty.
THE COURT: So you are entitled to a jury trial. We'll give it to you.
(5/23/77, N.T. 1-2)
The trial judge directed the sheriff to help appellant pick a jury, "and [to] tell him what to do . . . He's going to trial for Driving Under the Influence." At trial, appellant conducted no voir dire examination; he did not testify, introduce evidence, or present a closing argument.
On this record, the majority finds that appellant waived his right to the assistance of counsel:
We hold [states the majority] that a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.
(at p. 800)
*438 I cannot agree with this statement of the law.[2] Waiver of the right to counsel may not be found so easily. In Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964), our Supreme Court stated:
To evaluate whether a waiver of representation by counsel is valid, this court must determine whether or not the waiver was made ". . . with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered". (Emphasis in original).
415 Pa. at 69-70, 202 A.2d at 305, quoting from Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).
See also Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971); Commonwealth ex rel. McKee v. Russell, 429 Pa. 402, 240 A.2d 559 (1968); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964); Commonwealth v. Grant, 229 Pa.Super. 419, 323 A.2d 354 (1974). See also Pa.R.Cr.P. 318(c) (effective Jan. 1, 1978).
Here, the trial judge made no examination at all-much less "a penetrating and comprehensive examination of all the circumstances"-regarding appellant's understanding of what he was doing. The "examination" that was made may fairly be summarized as follows: First, the judge decided that appellant "wouldn't be entitled to a free lawyer." *439 Second, the judge received, and said that he "under[stood]", appellant's statement that "I don't know any attorneys right around here." And third, the judge received appellant's acknowledgment that he had "known about this trial for weeks and weeks." With only this, the judge summarily informed appellant, "[Y]ou're scheduled for trial today . . . . we'll give you the trial," and instructed the sheriff "[to] tell [appellant] what to do." In its discussion of appellant's guilty plea, the majority properly characterizes the colloquy preceding the plea as "woefully inadequate." (p. 800) The colloquy preceding appellant's "waiver" of his right to counsel was even more inadequate.
Had the trial judge made the examination required by law, he would have learned that appellant had appeared without counsel not because he did not want counsel but because he did not understand the scope of his right to counsel. This is clear from the colloquy following appellant's conviction, when the trial judge informed appellant of his right to counsel on post-verdict motions:
THE COURT: You can get an attorney anywhere in Pennsylvania [for post-verdict motions].
MR. WENTZ: I understood it would have to be in Somerset County [the county in which the court sat], that's the reason I didn't get any.
THE COURT: No.
MR. WENTZ: I know some where I live.
THE COURT: Where do you live?
MR. WENTZ: Bedford County. I understood it had to be up here.
THE COURT: No one told you that up here.
MR. WENTZ: That's what I understood.
THE COURT: No one told you that.
MR. WENTZ: No sir, no one told me that. That's what I understood.
THE COURT: So that's all for today. You will be notified when to appear. Do you have any other questions?
*440 MR. WENTZ: No, sir.
(5/23/77, N.T. 21-22)
Appellant's mistaken belief that he needed local counsel can hardly be characterized as unreasonable, or even surprising. Indeed, until rather recently, he would have been right. There is no support in the record for the majority's implied suggestion that appellant was "a `court wise' criminal defendant" who was seeking to delay, and so to avoid, trial. (p. 800). Appellant had not so much as requested a continuance; indeed, he never requested a continuance, probably because, as a layman, he did not know that he could. Cf. Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973); Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972).
The judgment of sentence for driving under the influence of intoxicating liquor should be vacated, and the case remanded for new trial.
HOFFMAN and HESTER, JJ., join in this opinion.
NOTES
[*] Judge G. HAROLD WATKINS is sitting by designation.
[1] The Defendant never did request a continuance or postponement of this case.
[1] The lower court has stated in its opinion filed pursuant to Pa.R.A.P. 1925(b) that the issue of appellant's right to counsel was not raised during any criminal proceedings prior to appeal. This does not mean, however, that appellant may not argue on this appeal that he had the right to counsel. It is settled that failure to raise an issue in a criminal proceeding does not constitute waiver where the defendant is not represented by counsel during that proceeding. Commonwealth v. Wilson, 444 Pa. 433, 283 A.2d 78 (1971).
[2] The majority also states that appellant has argued that a written waiver of the right to counsel must be executed by a criminal defendant in order for the court to find waiver. (pp. 799-800) However, I do not understand appellant to make this assertion anywhere in his brief. If the assertion had been made, I should agree with the majority that written waiver is not required, for a defendant may orally waive his right to counsel, so long as the requirements of law, as stated in the cases cited in this opinion, have been satisfied.
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749 P.2d 412 (1988)
CITY OF COLORADO SPRINGS, Petitioner,
v.
The INDUSTRIAL COMMISSION OF the STATE OF COLORADO and Fernando E. Santos, Respondents.
No. 86SC34.
Supreme Court of Colorado, En Banc.
January 25, 1988.
James G. Colvin II, City Atty., Jackson L. Smith, Asst. City Atty., Michael J. *413 Heydt, Chief Litigation Atty., Michele Sebastian Price, Corporate Atty., Colorado Springs, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dani R. Newsum, Asst. Atty. Gen., Denver, for respondent Indus. Com'n of Colorado.
Law Offices of McKendree & Toll, Donald J. Mares, Denver, for respondent Fernando E. Santos.
Gerald E. Dahl, Denver, for amicus curiae Colorado Mun. League.
KIRSHBAUM, Justice.
In City of Colorado Springs v. Industrial Commission, 720 P.2d 601 (Colo.App. 1985), the Court of Appeals affirmed an order of the Industrial Commission (the Commission) awarding unemployment compensation benefits to Fernando E. Santos (Santos), the respondent. The City of Colorado Springs (the City) had previously discharged Santos from employment for unsatisfactory performance and conduct unbecoming a City employee. We granted certiorari to review the conclusion of the Court of Appeals that the City's action did not bar the Commission's determination that Santos was entitled to full unemployment compensation benefits, and now affirm.
I
From September 1972 until April 1984, Santos was employed as an administrative clerk in the City Clerk and Treasurer's Office. In February of 1984, he also worked part-time as a security guard at a local business establishment. On February 20, 1984, Santos underwent emergency abdominal surgery. The next day Santos' wife telephoned the City Clerk-Treasurer, informed him that Santos had undergone major surgery and stated that her husband would be unable to return to the office for an extended period of time.
Following his release from the hospital, Santos was advised by his physician not to return to work at his job with the City during his convalescence because the sedentary nature of the work might result in the serious complication of femoral thrombophlebitis, or blood clotting in the lower extremities. The physician prescribed a regimen of extensive walking each day and, as a means of fulfilling that regimen, permitted Santos to return to his part-time security guard job.
On two occasions in early March, the City Clerk-Treasurer telephoned Santos' residence, but Santos was not at home. On March 16, 1984, the Clerk-Treasurer sent a letter to Santos requesting a physician's letter explaining the reason for Santos' lengthy absence from work. The physician sent a responsive letter indicating that he would not allow his patient to return to the City job until March 26 because the nature of the work might cause clotting in the lower extremities. Santos returned to his job with the City on March 26, 1984.
On March 26, in response to a question by the Clerk-Treasurer, Santos stated that he had worked as a security guard during his convalescence. On April 6, 1984, Santos was discharged from his job with the City due to unsatisfactory performance and conduct unbecoming a City employee. Both of these grounds were based on an alleged abuse of the City's sick leave policies. Pursuant to applicable administrative procedures, Santos appealed his discharge to the City Manager. The manager concluded that the discharge was proper because Santos failed to ask his supervisor if he could return to his City job with a lightened workload during his convalescence and failed to initiate contact with his supervisor periodically during his convalescence to justify his continuing sick leave. Santos appealed this decision to the municipal court, which court affirmed on the ground that the City Manager had neither exceeded his jurisdiction nor abused his discretion.[1] Santos did not seek further appellate review of his discharge.
*414 Santos then applied for unemployment compensation benefits. The City filed a protest, arguing that under the doctrine of collateral estoppel the City Manager's determination that Santos was properly discharged prohibited Santos from obtaining unemployment compensation. The Deputy of the Division of Employment and Training rejected this argument and concluded that Santos was entitled to a full award of benefits pursuant to section 8-73-108(4)(b), 3 C.R.S. (1983 Supp.) (now codified at § 8-73-108(4)(b), 3B C.R.S. (1986)).
The City appealed, and a hearing was conducted by a Commission referee. The referee affirmed the Deputy's decision, concluding that Santos had acted reasonably and in accordance with medical advice, had ensured that his employer was notified immediately of his separation from employment and had responded promptly to his employer's request for information. The referee observed that, although City policy allowed employees in some circumstances to return to work early on light-duty assignments, the City's personnel rules placed no affirmative obligation upon an employee to initiate a request for light-duty work.
In affirming the referee's decision, the Commission noted that in its opinion there was substantial and competent evidence to support the conclusion that Santos had not violated any City policy. On appeal, the Court of Appeals affirmed the Commission's order. The Court of Appeals concluded that because unemployment compensation is a matter of statewide concern, home rule cities do not have subject matter jurisdiction concerning awards of unemployment benefits and, therefore, the Commission properly refused to apply the doctrine of collateral estoppel.
II
The City argues that the City Manager's determination that Santos should not be reinstated in his job collaterally estops the Commission from concluding that Santos should receive unemployment compensation benefits. We disagree.
A
Collateral estoppel, or issue preclusion, bars relitigation of an issue determined at a prior proceeding if: (1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is sought was a party to or was in privity with a party to a prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Salida School Dist. R-32-J v. Morrison, 732 P.2d 1160 (Colo.1987); Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616 (Colo. 1987); People v. Hearty, 644 P.2d 302 (Colo.1982); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Whether an employee has been properly discharged in accordance with applicable employment policies is an issue quite distinct from whether the employee should be disqualified from receipt of unemployment compensation benefits under pertinent provisions of the Colorado Employment Security Act. Gonzales v. Industrial Comm'n, 740 P.2d 999 (Colo.1987); Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616.
Santos was discharged for unsatisfactory performance and conduct unbecoming a City employee. However, an employee is not automatically denied unemployment benefits simply because the employee has been discharged; rather, benefits may be denied only if the discharge was due to one or more of several statutorily enumerated causes. Gonzales v. Industrial Comm'n, 740 P.2d 999; Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616. The statutory provision relevant to the Commission's inquiry of whether Santos was entitled to unemployment benefits is section 8-73-108(9)(a), 3 C.R.S. (1983 Supp.) (now codified at § 8-73-108(5)(e), 3B C.R.S. (1986)). That statute provides in pertinent part as follows:
(e) Subject to the maximum reduction consistent with federal law ... if a separation *415 from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103(13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:
....
(XX) For other reasons including, but not limited to, excessive tardiness or absenteeism, sleeping or loafing on the job, or failure to meet established job performance or other defined standards, unless such failure is attributable to factors listed in paragraph (b) or subsection (4) of this section.
§ 8-73-108(5)(e), 3B C.R.S. (1986) (emphasis added). Subsection (4) provides in pertinent part:
(4) Full award. An individual separated from a job shall be given a full award of benefits if any of the following reasons and pertinent conditions related thereto are determined by the division to have existed. The determination of whether or not the separation from employment shall result in a full award of benefits shall be the responsibility of the division. The following reasons shall be considered, along with any other factors which may be pertinent to such determination:
....
(b)(I) The health of the worker is such that he is separated from his employment and must refrain from working for a period of time, but at the time of filing his claim he is able and available for work, or the worker's health is such that he must seek a new occupation, or the health of the worker, his spouse, or his dependent child is such that the worker must leave the vicinity of his employment; except that, if the health of the worker or that of his spouse or his dependent child has caused the separation from work, the worker, in order to be entitled to a full award, must have complied with the following requirements: Informed his employer of the condition of his health or the health of his spouse or dependent child prior to his separation from employment; substantiated the cause by a competent written medical statement issued prior to the date of his separation from employment when so requested by the employer prior to the date of his separation from employment or within a reasonable period thereafter; submitted himself or his spouse or his dependent child to an examination by a licensed practicing physician selected and paid by the interested employer when so requested by the employer prior to the date of his separation from employment or within a reasonable period thereafter; and submitted himself, his spouse, or his dependent child to an examination by a licensed practicing physician selected and paid by the division when so requested by the division.
§ 8-73-108(4), 3B C.R.S. (1986).
It is undisputed that Santos was separated from work to undergo emergency surgery; that he ensured that his employer was notified of his condition and of the need for an extended recovery period within a reasonable time after the surgery; that he responded promptly to his employer's request for information[2]; and that although the employer had the option under its own policies to require examination by a second physician, it did not make such a request. Moreover, as the Commission referee *416 observed, City policy did not unambiguously impose any affirmative duty upon an employee in circumstances such as Santos experienced to request a light-duty assignment during convalescence.[3]See § 8-73-108(5)(e)(VII), 3B C.R.S. (1986) (violation of company rule may require disqualification from unemployment compensation benefits). Under these circumstances, the record supports the Commission's determination that Santos was entitled to unemployment compensation benefits.[4]See § 8-74-107(6), 3B C.R.S. (1986).
B
The City also asserts that the Commission's authority to make determinations respecting the award of unemployment compensation benefits is circumscribed by the City's home rule power under article XX, section 6, of the Colorado Constitution to deal with personnel issues of local concern.[5] While certainly charter provisions and legislation of a home rule city supersede conflicting state statutes in matters of purely local and municipal concern, in matters of statewide concern state statutes supersede local charter provisions and ordinances of home rule cities. City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d 730 (Colo. 1985); Denver & Rio Grande Western R.R. Co. v. City & County of Denver, 673 P.2d 354 (Colo.1983). As the City itself recognizes,[6] while the determination of whether a City employee should be reinstated in a City job may be a matter of local concern governed by City policies, the determination of whether an employee is *417 entitled to unemployment compensation benefits is a matter of statewide concern governed by state statutory provisions. See Gonzales v. Industrial Comm'n, 740 P.2d 999 (Colo.1987); Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616 (Colo.1987); § 8-70-102, 3B C.R.S. (1986) (unemployment is a subject of general concern requiring action by the General Assembly to promote the general welfare of citizens of the state). The Commission's exercise of its authority under the provisions of the Colorado Employment Security Act did not violate the home rule provisions of article XX, section 6, of the Colorado Constitution.
III
The judgment of the Court of Appeals is affirmed.
NOTES
[1] The City's Personnel Policies and Procedures manual provides that "[t]he [municipal] judge shall not extend his review further than to determine whether the City Manager exceeded his jurisdiction or abused his discretion."
[2] Although ambiguous, City policy apparently requires notification of the employer of intended use of sick leave only prior to the first workday missed. The City's Personnel Policies and Procedures manual provides in pertinent part:
To be eligible for paid sick leave, the intended use of sick leave must be reported to the immediate supervisor prior to the start of the scheduled workday or prior to leaving the work site. An employee who fails to do so may be subject to disciplinary action.
The Clerk-Treasurer testified that although City policy could be interpreted to require notification of the employer prior to each day's absence from work, no such policy had ever been implemented in his department.
[3] The City's Personnel Policies and Procedures manual provides in pertinent part:
An employee, upon recommendation of a physician, may be placed on light-duty (provided work is available) for a period not to exceed 90 calendar days when such employee has a temporary disability that precludes performance of regularly assigned duties. Light-duty assignments must be coordinated with the Safety Director and approved by the Department/Division Head.
[4] To the extent that the decisions in Umberfield v. School Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974), and Jefferson County School Dist. v. Industrial Comm'n, 698 P.2d 1350 (Colo.App. 1984), might be construed to mandate a different result, those cases were overruled in effect by our decision in Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616 (Colo.1987).
[5] Article XX, section 6, of the Colorado Constitution provides in pertinent part:
Home rule for cities and towns. The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.
Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.
....
From and after the certifying to and filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this article, such city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of this article, and all other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control:
a. The creation and terms of municipal officers, agencies and employments; the definition, regulation and alteration of the powers, duties, qualifications and terms or tenure of all municipal officers, agents and employees;
....
It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.
The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.
[6] The City's Personnel Policies and Procedures manual provides in pertinent part:
The State of Colorado Employment Security Act provides that a separated employee may apply for unemployment insurance. Eligibility for, and the amount of compensation, are determined by the State. The City pays the entire cost of this benefit.
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157 Ga. App. 319 (1981)
277 S.E.2d 312
JOHNSON et al.
v.
FOWLER ELECTRIC COMPANY, INC. et al.
60764.
Court of Appeals of Georgia.
Decided February 3, 1981.
Irwin M. Levine, Pat D. Dixon, Jr., Clayton Sinclair, Jr., for appellants.
James M. Poe, Ben S. Williams, J. Kenneth Moorman, Jeanette Blue, for appellees.
BIRDSONG, Judge.
The appellants in this case were residents of an apartment building which burned the night before Thanksgiving in 1974. They sued IDS Corporation, which was the owner of the apartment complex on the date of the fire, and Fowler Electric Co., the electrical contractor which installed the electrical wiring in the building when it was built in 1971. After the plaintiffs presented their case, the defendants moved for directed verdicts.
Fowler Electric Co. ("Fowler") argued successfully that plaintiffs had presented no evidence from which the jury could find negligence on the part of Fowler, and no evidence of proximate cause involving Fowler extending beyond mere conjecture and speculation; that in any event the project had been accepted by the then-owner, and contained no hidden defect or nuisance per se, and no imminently or inherently dangerous work (see Queen v. Craven, 95 Ga. App. 178, 183-184 (97 SE2d 523)). IDS Corporation argued that it could not be liable because it had had no notice of any defect or malfunction in or relating to the electrical system, and any defects were so hidden in the walls of the building that IDS did not discover, and could not have discovered them by any inspection (see Ramsey v. Mercer, 142 Ga. App. 827 (237 SE2d 450); Borcuk v. Briarcliff Animal Clinic, 140 Ga. App. 203 (230 SE2d 353)).
After lengthy testimony and arguments, the trial judge directed a verdict for each defendant. Plaintiff's expert witness had testified that in investigating and analyzing the fire, he found in the wiring three distinct violations of the National Electric Code and the DeKalb County Electrical Code, which violations he described as negligent and which in his opinion caused the fire. Nevertheless, the trial judge decided as a matter of law that no inculpatory evidence higher than speculation had been shown and that in any case the defendant Fowler was not negligent because the work was inspected and apparently approved by the DeKalb County Electrical Inspection Department. Held:
1. As to IDS Corporation, we affirm. There was no evidence from which the jury could find that IDS had any notice of defective or malfunctioning electrical wiring. Although it was shown the fire started near or at the air conditioning compressors, evidence that the air conditioners sometimes did not work would not form the basis to infer notice of electrical defects, where it was not shown that any malfunction of the air conditioners had any connection to defective wiring or that such notice, if properly acted upon, would lead to an *320 awareness of the defective wiring.
2. As to Fowler Electric Co., we reverse. The plaintiff's expert witness, Mr. Berkowitz, is an electrical engineer, licensed master electrician, design engineer, and teacher of electrical technology, specializing in investigating electrical fires. He testified succinctly as follows: "The only [viable theory as to the cause of the fire] was wiring in [the area of the air conditioners].... Inspecting that wire, I found... it was the conduit that ran from the air conditioner to the disconnect switch that didn't have an end, a proper end termination on it. The end termination is called a connector ... [which] is metal. If you cut the even edge very carefully you will still end up with a rough edge and you have to protect the wire from getting cut so your fitting slides over the end and protects the wiring. There was no end fitting on those conduits. [Another] major violation was the presence of what are called taps [or a] splice where you connect two wires together and there are plastic connectors you screw on the end of the wire. The Code requires these always be inside the box. You can't just put them in the wall. There were several of these taps put in the wall there and far enough away from the switchboxes that they simply could not have been inside the switchbox and in addition, I looked through the debris on the ground and [found] no evidence of additional boxes they would have been enclosed in. The reason those taps are required to be inside the box is if for any reason they become loose they become hot and if they become hot, they start a fire and so those are the two things I found wrong with that installation and I feel that because there was no connector on the end of that conduit, that wiring in that area was subjected to the sharp edge and it became abraided and began to have a shortage and shorted it out and this caused a short and a short circuit which produced enough heat to start that fire....
"The fire in my opinion was caused by the improper termination of the conduit... This [metallic] conduit could not have been properly terminated in [a plastic box]. There is just no way that it could be done. . . The reason the Code requires the taps to be in the box is because if the taps become loose at all, they can become hot and start a fire. Once the short circuit is in the conduit excessive current can cause one of these tap connections to become hot and if they are loose and ... not in a box, then they become the source of ignition for a fire . . . It is correct [that there could have been several points of ignition created by faulty wiring]. Article 300-15 ... requires that ... taps must be in a box... Section 370-19 establishes that the boxes must be accessible and ...this means ... the box can't be buried in the wall, it has to be accessible either from the inside or outside with a cover and these were the sections of the Code violated." (Mr. Berkowitz concluded there were no tap switch boxes because metal boxes would *321 not have burned, and although plastic boxes might burn, usually a portion is left, and he found no such evidence of any boxes in the debris.)
On cross examination, Mr. Berkowitz testified that the absence of the described connector could not be observable during a "rough in" inspection and would probably not be noticed or observable in a final inspection. He was not equivocal in his testimony. He said: "If there is one message the Code brings across, it is protect the wires. Now, all these four hundred pages are trying to say is really, protect the wires. The way to connect the wire is terminate the end of the conduit so it doesn't give, so there is a clear path in the conduit into the box where the connection is made so if you leave the conduit hanging loose, it is improperly terminated and you are not protecting the wire. [When you don't have that connector you can wear away the insulation protecting the wire. And when you do that, you have current going through the wire and you get a heat build-up and don't have any protection for the wire]." Mr. Berkowitz repeated the cross examination that he found no taps and no connectors in the debris of the fire. Of two possibilities as to the source of ignition, he stated that both conditions were caused by the faulty wiring described, and "the conditions were there in both cases to produce the short circuit. As to which occurred ahead of the other, after the debris, subjected to the resulting fire, this becomes covered up, what there is evidence of... There would not be any remaining physical evidence [of] the particular point where the fire started." (Emphasis supplied.) In short, Mr. Berkowitz did not sway from his assertion that the wiring was in direct violation of the National Electrical Code and DeKalb County Electrical Code, and that these violations were in his studied opinion the cause of the fire.
There can be no debate that this testimony, with the whole of Mr. Berkowitz' testimony, constitutes evidence from which the jury could have found defendant Fowler Electric Co. liable for the plaintiff's damages. It cannot reasonably be said that "the evidence introduced, with all reasonable deductions therefrom" (Code Ann. § 81A-150a) demands a verdict for Fowler Electric Co.; therefore, directed verdict for Fowler was error. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450-451 (224 SE2d 25).
At trial Fowler argued, as it does on appeal, that Mr. Berkowitz testimony was pure speculation and proved nothing. The trial judge, over objection, permitted defense counsel to inquire of Mr. Berkowitz whether "as the result of your investigation you personally feel beyond a reasonable doubt that what you have identified as the cause of this fire is the only possible cause... that is reasonably possible." (Emphasis supplied.) Nevertheless, Mr. Berkowitz replied that what *322 he had testified to as the cause of the fire was, in his opinion, the only possibility. Fowler argues that the plaintiff's evidence that Fowler's negligence caused the fire is so remote that to allow the jury to return a verdict on that evidence would be to sanction speculation and conjecture by the jury. This is not so. There is no debate that Mr. Berkowitz is an expert knowledgeable in the investigation and analysis of fires, in particular, electrical fires. He fully described his investigation and analysis of the fire, basing his conclusions and opinions on principles of electrical engineering and facts he observed and interpreted in the debris of the fire. It was reasonable that he draw conclusions as to the cause of the fire, and he was qualified to do so. See Parker v. State, 145 Ga. App. 205, 207 (243 SE2d 580); Dual S. Enterprises v. Webb, 138 Ga. App. 810 (227 SE2d 418). As was emphasized in his testimony above, a fire naturally tends to burn out its own tracks and thus there will generally be some speculation by an expert testifying as to the anatomy and cause of a fire; but where his opinion testimony is based on observed facts the testimony is competent evidence, and its weight, insofar as how speculative it may be, is to be determined by the jury. See Dual S. Enterprises, supra, p. 814. Similarly, we find no substance in the defendant's argument and the trial court's observation that Mr. Berkowitz' "circumstantial evidence is equally compatible with both theories of liability and non-liability," and hence fails to prove either theory. Mr. Berkowitz did not waver from his expressed conclusion that the negligent and defective installation of the wiring caused the fire.
Fowler argues that plaintiffs as third parties may not recover against Fowler unless it is shown that the wiring was a nuisance per se, inherently or intrinsically dangerous, or imminently dangerous to third persons, citing Higgins v. Otis Elevator Co., 69 Ga. App. 584 (26 SE2d 380) and Queen v. Craven, supra. The Queen case admonishes that this principle applies where an independent contractor has turned over his work to the owner and the owner has accepted it, if the defect is not hidden but readily observable on reasonable inspection. In such event the employer (owner) becomes liable for the defect. See PPG Indus. v. Genson, 135 Ga. App. 248, 250-251 (217 SE2d 479); Queen, supra, p. 184; and Code Ann. § 105-502. The evidence in this case, however, may render that principle inapropos. The jury could find, from the evidence, that the alleged defective conditions of the wiring were hidden in the walls of the building and not readily observable on reasonable inspection, nor even on "rough-in" inspection or final inspection; hence, the above rule absolving the independent contractor from liability except in certain cases might not be available to Fowler in the first place. Moreover, if it were, the jury might find the wiring to have been a nuisance per se, inherently *323 or intrinsically dangerous, or imminently dangerous to third persons. See Kuhr Bros. v. Spahos, 89 Ga. App. 885 (81 SE2d 491). The plaintiff's expert testified, in effect, that the negligently installed wiring was a time bomb which was bound, inevitably, to eventually result in a fire.
If the court in Eyster v. Borg-Warner Corp., 131 Ga. App. 702 (206 SE2d 668) seemingly reached a different result from what we do here, it is in fact because the use and installation of the particular wire in that case were not deemed to be negligent, a factor yet to be determined by a jury in this case.
Fowler argues and the trial court ruled that because this wiring installation was apparently approved by the DeKalb County Electrical Inspectors Office on both rough and final inspections, Fowler had a right to rely on this approval and the wiring as a matter of law could not be held imminently dangerous to third persons. This is not the case. For one thing, the plaintiff's expert offered his opinion that the defective wiring would not have been observable upon rough or final inspection. More importantly, it is too plain to be debated that if an action is negligent, approval of that negligence by another party or even a government agency, or rather of the conditions creating the negligence, does not as a matter of law excuse the negligence. In Central of Ga. R. Co. v. Bernstein, 113 Ga. 175, 179 (4) (38 S.E. 394), the Supreme Court held that it was not enough that the defendant had complied with the reasonable regulations laid down by the city. "The fact that the defendant had complied with all the regulations prescribed by the city authorities would not relieve it of liability if it had been in fact negligent... While the nature of the city regulations and the defendant's compliance with them may have been of assistance to the jury in solving (the question as to whether the defendant had used ordinary care and diligence), the finding might properly have been that, although the defendant complied fully with all the city regulations, it was still negligent. The defendant owed to the plaintiff the duty of using a certain degree of care ... and that degree of care could not be lessened or changed by any regulations in the permit given by city authorities." If we seemed to rule differently in PPG Industries, supra, and Russell v. Cynwid Invest., 142 Ga. App. 410 (236 SE2d 147), it was because under all the circumstances of those cases, including the defendants' adherence to government regulations, the conditions were not shown to have been negligent. While the approval of the work by a third party or inspection agency might be evidence going to the question of negligence, we find no reason to conclude that where it is proved that a defendant is negligent, he should be relieved of liability as a matter of law merely because the defective work was approved by someone *324 else. As Mr. Berkowitz expressed it, "The DeKalb County Commission approved the 1968 [electrical] Code. The fact that [the electrical inspector] decided to approve that particular installation was not in keeping with the DeKalb County Code." If that is so, the inspector's error certainly does not render any less defective or negligent the installation he approved. It was error to direct a verdict in favor of Fowler.
Judgment reversed in part and affirmed in part. Deen, P. J., and Sognier, J., concur.
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777 F.Supp. 599 (1991)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CONSOLIDATED SERVICES SYSTEMS, Defendant.
No. 85 C 8312.
United States District Court, N.D. Illinois, E.D.
September 4, 1991.
*600 *601 Zachary Alan Tobin, Jason Stephen Hegy, John P. Rowe, U.S. E.E.O.C., Chicago, Ill., for plaintiff.
Marvin F. Metge, Bruce Craig Spitzer, Gorham, Metge, Bowman & Hourigan, Cary K. Kabumoto, Kabumoto & Malany, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
HOLDERMAN, District Judge:
The plaintiff, the United States Equal Employment Opportunity Commission ("EEOC") brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). The EEOC claims that the defendant, Consolidated Service Systems ("Consolidated") engaged in a continuing pattern and practice of illegally discriminating against non-Koreans as a class in both the recruitment and hiring of persons to perform janitorial services at various buildings throughout Cook County and the Chicagoland area. Jurisdiction is proper. The trial issues of liability and damages were bifurcated. A bench trial was held.
Having carefully considered the evidence, the court finds that the EEOC failed to sustain its burden of proving by a preponderance of the credible evidence that the defendant illegally discriminated against non-Koreans in recruitment and hiring during the time period alleged. Consequently, judgment will be entered in favor of the defendant Consolidated and against the plaintiff EEOC.
I. BACKGROUND FACTS
Consolidated is a company which supplies janitorial services to other companies and businesses. (Tr. 29.) The time period covered by the EEOC's lawsuit is January of 1983 through March of 1987. It is undisputed that during that four and a quarter year time frame Consolidated's work force was primarily Korean.[1]
*602 There was no set procedure at Consolidated for persons seeking employment to fill out applications. (Tr. 31.) There were no written criteria or written rules as to the level of education needed to be hired as a janitor at Consolidated. There was no written rule or standard rule as to level of experience needed to be a cleaner at Consolidated. (Tr. 30.) Persons hired as janitors and cleaners at Consolidated, however, were interviewed by Andrew Hwang, Consolidated's president commencing January 1983, or by other Consolidated personnel. (Tr. 32-33.)
Mr. Hwang, who was born in Korea, attended high school and two years of college in Korea. (Tr. 26.) He became president of Consolidated January 1, 1983 when he purchased the company from its previous owner who was also a Korean. (Tr. 28.) Before Mr. Hwang's purchase of Consolidated, the cleaning performed by Consolidated was performed by Korean individuals who were considered to be subcontractors rather than employees of Consolidated. Mr. Hwang, in January 1983 upon acquiring Consolidated, employed the persons who previously had performed Consolidated's cleaning tasks as independent contractors.
During the year 1983 Mr. Hwang hired three people who had not previously been performing the same work as independent contractors for Consolidated under the prior ownership. (Tr. 723.) One of those people was a Charlene Burris, Mr. Hwang's secretary, a non-Korean. Another person Mr. Hwang hired was Korean, Soon Park. Mr. Hwang's wife was also employed. Her nationality was not proven but the court assumes she is Korean.
During the period which the EEOC claims Consolidated discriminated against non-Koreans, 1983-1987, only two Consolidated employees, other than Mr. Hwang (Tr. 744.), worked more than five hours per day. (Tr. 728.) One of those two workers was "inherited" from the previous owner. One was hired by Mr. Hwang. That one worker who Mr. Hwang hired, Mr. William Wall, was a non-Korean. (Tr. 728.) Most of Consolidated's cleaners who worked five hours per day less in the Cook County area earned $5.00 per hour or less (Tr. 728-731.) with no fringe benefits. (Tr. 748.)
During the period 1983-1987 Consolidated obtained a government cleaning contract in Las Vegas. That contract began May 1, 1986. Consolidated hired nine people, all non-Koreans, as its cleaning work force for the job. (Tr. 733-736.) They were paid $8.00 per hour. The thirteen people hired for the Railroad Retirement building at 844 North Rush in Chicago when Consolidated first got that contract in March 1984 were Korean. (Tr. 749-51.) They earned between $8.59 to $8.65 per hour. (Tr. 749.)
Mr. Hwang never recruited employees in the sense of going out and hiring people. (Tr. 43.) A lot of people at Mr. Hwang's church came up to him and asked him if he had jobs. He hired only a few. (Tr. 40-41.) The Korean Association of Greater Chicago (who is not a party to this action) sent Mr. Hwang applicants. (Tr. 41-43.) Only a couple times did Mr. Hwang ask people who worked for him if they knew people who needed jobs. (Tr. 40.)
During the period between January 1, 1983 and June 30, 1987, Consolidated placed an employment advertisement in a Korean language newspaper, the Joon Ang Times, only once. (Tr. 732.) That ad first appeared on February 17, 1984 and ran for three days. (Tr. 732.) Consolidated hired no one as result of that Korean language ad. (Tr. 733.) In March of 1985, Consolidated advertised for employees in the Chicago Tribune (Pl.Ex. 140.), a newspaper of general circulation in the Chicago area, but hired no one as a result of that advertisement either. (Tr. 737.) Consolidated also placed an advertisement in the Chicago Tribune in June of 1987. (Tr. 740.) Consolidated received "a lot of applicants" from that advertisement, but none of the applicants wanted the job. (Tr. 740.)
II. DISCUSSION
A. Legal Standards
Because the EEOC alleges a "pattern-or-practice" of discrimination by Consolidated (Pl.'s Trial Brief at 2.; Tr. 7.), the *603 EEOC has the burden of proving "more than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts" by Consolidated. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). Instead, the EEOC must establish "by a preponderance of the evidence that [the national origin] discrimination was [Consolidated's] standard operating procedure the regular rather than the unusual practice." Id.
The EEOC sought to establish Consolidated's pattern and practice of discrimination under both the disparate treatment and disparate impact methodologies. (Tr. 8.) "Disparate treatment" is the more straight-forward method of proof. As the Supreme Court summarized in Teamsters:
"Disparate treatment" ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.
431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15 (citations omitted).
The "disparate impact" methodology is less direct, but often easier to utilize. The Court described this approach as follows:
Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.
431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15 (citations omitted); see also Gilty v. Oak Park, 919 F.2d 1247, 1254 (7th Cir.1990). Thus, unlike disparate treatment claims, under the disparate impact methodology, a plaintiff need not prove discriminatory intent. Instead, a plaintiff must show that the policies and practices at issue "have a substantially disproportionate impact on the protected class." Gilty, 919 F.2d at 1254, quoting Griffin v. Board of Regents, 795 F.2d 1281, 1287 (7th Cir.1986).
Under Title VII the EEOC, as the plaintiff, has the initial burden of making out a prima facie case of discrimination. Id., 431 U.S. at 335-6, 97 S.Ct. at 1854-5. To make out a prima facie case of discrimination a plaintiff in a pattern-or-practice case must demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer. Id., 431 U.S. at 360, 97 S.Ct. at 1867. A plaintiff's prima facie case in a pattern-or-practice claim usually consists of statistical evidence demonstrating substantial disparities in the application of employment actions as to the minorities and the unprotected group, buttressed by evidence of general policies or specific instances of discrimination. Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir.1985).
Once a plaintiff establishes a prima facie case of a pattern-or-practice of discrimination, the burden shifts to the defendant to produce evidence of a business justification for its employment practice. The burden of persuasion with respect to discrimination, however, remains with the disparate-impact plaintiff at all times. Mozee v. American Commercial Marine Service Co., 940 F.2d 1036, 1049 (7th Cir. 1991); Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989). Moreover, the strength of the evidence the defendant must produce to prevent the plaintiff from carrying the burden of persuasion as to disparity depends, as in any case, on the strength of the plaintiff's proof. Coates, 756 F.2d at 532, quoting Segar v. Smith, 738 F.2d 1249, 1268 (D.C.Cir.1984). Indeed, a shoddy showing of disparate impact will not require a defendant even to produce evidence in justification of the challenged practice. Allen v. Seidman, 881 F.2d 375, *604 378 (7th Cir.1989), citing Wards Cove, 109 S.Ct. at 2121-24.
With regard to a defendant's business justification for the use of particular practices, this phase of a disparate-impact case contains two components: (1) a consideration of the justifications an employer offers for his use of the practices at issue; and (2) the availability of alternate practices to achieve the same business ends, with less racial impact. Wards Cove, 109 S.Ct. at 2125. The dispositive issue is whether a challenged practice:
... serves, in a significant way, the legitimate employment goals of the employer The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet....
Wards Cove, 109 S.Ct. at 2125-26 (citations omitted).
B. The Failure of the Evidence Presented
The EEOC urges that both the disparate treatment and disparate impact theories apply to the set of facts present here. The court finds, however, that the EEOC has failed to prove a Title VII violation by a preponderance of the evidence under either theory.
1. The Statistical Evidence
The heart of the EEOC's disparate impact case was, of course, statistical evidence. The EEOC presented evidence through its expert, Farrell Bloch, Ph.D., of a disparity between the percentage of non-Koreans and Koreans in a general labor pool and the percentage of non-Koreans and Koreans who actually applied to and were hired by Consolidated in the Chicago area during the period alleged, 1983-1987.
Dr. Bloch's testimony purported to show a disparity between the percentage of non-Koreans and Koreans in the general labor pool and the percentage of non-Koreans and Koreans who actually applied to and were hired by defendant Consolidated. This court finds Dr. Bloch's statistical evidence unreliable, however, because it failed to determine properly the relevant labor pool.
The Supreme Court in Wards Cove highlighted the importance of making the proper labor pool comparison in utilizing statistics to make out a prima facie case in Title VII cases. The Court held:
The "proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified ... population in the relevant labor market." [Hazelwood School Dist. v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977).] It is such a comparison between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs that generally forms the proper basis for the initial inquiry in a disparate impact case.
Wards Cove, 109 S.Ct. at 2121.
In Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir. 1991), the Seventh Circuit Court of Appeals also recently addressed the importance of selecting an appropriate pool for performing statistical analysis in Title VII cases:
In selecting an appropriate pool and performing regression analysis in Title VII cases, the Supreme Court has taught that plaintiffs need not take into account "all measurable variables," but rather must simply include the major factors potentially responsible for any disparity. "Normally, failure to include variables will affect the analysis' probativeness, not its admissibility." Bazemore v. Friday, 478 U.S. 385, 400 [106 S.Ct. 3000, 3009, 92 L.Ed.2d 315] (1986). We have ourselves understood this principle to require that plaintiffs eliminate "`the most common non-discriminatory reasons'" *605 for any suggested disparity. Coates, 756 F.2d at 541 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 [101 S.Ct. 1089, 1094, 67 L.Ed.2d 207] (1981)). The trial judge's selection of the appropriate variables required to determine a suitable pool for comparison purposes is generally a question of fact and is reversible only if clearly erroneous. [Equal Employment Opportunity Commission v.] Sears, Roebuck, 839 F.2d [302] at 309 [(7th Cir.1988)]. "Especially where statistical evidence is involved, great deference is due the district court's determination of whether the resultant numbers are sufficiently probative of the ultimate fact in issue." Soria v. Ozinga Brothers, Inc., 704 F.2d 990, 995 n. 6 (7th Cir.1983).
Id., 940 F.2d at 1045.
The court upon weighing the evidence in this case finds that the statistical evidence presented by the EEOC is not sufficiently probative to demonstrate by a preponderance that unlawful discrimination has been Consolidated's regular procedure or policy. Specifically, the court finds that the in selecting an appropriate pool for statistical analysis, the EEOC's expert, Dr. Bloch, failed to properly consider a major variable potentially responsible for the statistical disparity namely, whether members of the relevant labor pool were actually interested in the positions available at Consolidated. Because the lack of interest is admittedly a key, non-discriminatory reason which could explain any suggested statistical disparity which EEOC claims is evidence of discrimination, the court finds the EEOC's statistics unreliable.
Indeed, the EEOC's expert, Dr. Bloch, admitted that the labor force must properly be defined both as those workers who are qualified and interested in the positions Consolidated offered. (Tr. 85, 89.; Pl.Ex. 125 at 3.) Dr. Bloch's analysis, however, failed to properly consider the number of janitorial workers, if any, who were actually interested in Consolidated positions. Dr. Bloch assumed that the labor pools he utilized for his statistical comparison encompassed individuals interested in the jobs at issue based solely on what Dr. Bloch assumed were similarities between the "at issue" Consolidated jobs and certain other positions. (Tr. 89, 94-95.; Pl.Ex. 125 at 5-11.) The evidence in this case, however, established that the positions which Consolidated offered were unfavorable when compared with other janitorial positions: virtually all Consolidated positions were part-time less than five hours per day (Tr. 727-728, 731.); wages were mostly $4.50-$5.00 per hour (Tr. 729, 749.); hours were often unfavorable (see, e.g., Tr. 746.); fringe benefits were nonexistent (Tr. 748.) Nonetheless, Dr. Bloch's analysis failed to determine what part of the general labor pools he analyzed would or would not be interested in such positions.[2]
It is true that where figures for the general population might accurately reflect the pool of qualified job applicants, the Supreme Court has permitted Title VII plaintiffs to rest their prima facie case on such statistics. Wards Cove, 109 S.Ct. at 2121 n. 6, citing, e.g., Dothard v. Rawlinson, 433 U.S. 321, 329-330, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). This, however, is not such a case. Dr. Bloch, though defining the relevant labor market as "the individuals who would be qualified for and interested in the jobs at issue" (Tr. 89.), *606 failed to properly evaluate the interest of the applicants as to the unfavorable nature of Consolidated's cleaner jobs. (Tr. 470-471.) In fact, Dr. Bloch included persons who were not interested in Consolidated's jobs in his purported "relevant labor market" and also included them as persons Consolidated rejected when in fact those persons had rejected Consolidated by not being interested in the jobs at Consolidated. (Tr. 479-480.) Dr. Bloch, whose company earned 75% of its income from the EEOC (Tr. 500.), on redirect tried to justify his failure to consider various factors on the basis that the data is not available. (Tr. 505.) Consequently, the court as fact finder believes the statistical basis of the EEOC's proof to be unreliable.
As the Supreme Court warned in Wards Cove, the pool of qualified job applicants must not be selected too broadly, as the EEOC has done here:
[I]solating the cannery workers as the potential "labor force" for unskilled non-cannery positions is ... too broad ... in its focus. Too broad because the vast majority of these cannery workers did not seek jobs in unskilled noncannery positions; there is no showing that many of them would have done so even if none of the arguably "deterring" practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants because it contains many persons who have not (and would not) be non-cannery job applicants.
Wards Cove, 109 S.Ct. at 2123.
The EEOC's failure to show that members of the labor pool would have been interested in the positions offered by Consolidated "even if none of [Consolidated's] arguably `deterring' practices existed" renders its statistics unreliable. Wards Cove, 109 S.Ct. at 2123. As in Wards Cove, the EEOC's selected labor pool cannot be used as a surrogate for the class of qualified job applicants because it failed to take into account those persons who would not desire a position at Consolidated given the particular working conditions offered.[3]
If the EEOC had established a prima facie case of a pattern-or-practice of discrimination, the burden would shift to Consolidated to produce evidence of a business justification for its employment practice.[4]Mozee, 940 F.2d at 1049; Wards Cove, 109 S.Ct. at 2126. However, where, as here, the two groups compared by a plaintiff are obviously and substantially different in some relevant respect such that use of the comparison is unjustified to demonstrate disparate impact, the plaintiff's case fails at the threshold, without the court's having to reach the issue of business necessity. Allen, 881 F.2d at 379 and cases cited therein. Accordingly, this court need not address Consolidated's asserted business justifications for its employment practices.
If the EEOC had established a prima facie case, but was unable to persuade this court on the question of Consolidated's business necessity, the EEOC still may have prevailed. To do so, the EEOC would have had to persuade the court that other employment practices, without a similarly undesirable racial effect, would serve Consolidated's legitimate hiring interests. Wards Cove, 109 S.Ct. at 2126. By so demonstrating, the EEOC would have proven that Consolidated used its employment practices merely as a "pretext" for discrimination. Id. As the Court in Wards Cove noted:
If [a plaintiff], having established a prima facie case, come[s] forward with alternatives to petitioners' hiring practices *607 that reduce the racially-disparate impact of practices currently being used, and [defendant] refuse[s] to adopt these alternatives, such a refusal would belie a claim by [defendant] that [its] incumbent practices are being employed for nondiscriminatory reasons.
Wards Cove, 109 S.Ct. at 2126-27 (emphasis supplied).
In this case, however, the EEOC in addition to not establishing a prima facie case, has failed to prove that Consolidated refused to adopt the alternatives which the EEOC claims it should have embraced. For example, the EEOC presented evidence that the Illinois Job Service offered an alternative to Consolidated's hiring practices. (Tr. 528, 532, 543.) The EEOC presented no evidence, however, that Mr. Hwang knew during the relevant period that this alternative even existed. (Tr. 526-550.) On the contrary, Mr. Hwang testified that he had no idea that the Illinois job service existed. (Tr. 762-763.) Accordingly, because the EEOC failed to demonstrate that Mr. Hwang knew about and thus failed to adopt less discriminatory alternatives, the EEOC has presented no evidence to contradict Mr. Hwang's testimony that Consolidated used its employment practices for nondiscriminatory reasons. Wards Cove, 109 S.Ct. at 2126-27; Allen v. Seidman, 881 F.2d at 337.[5]
2. The Challenged Employment Practices
In addition to presenting flawed statistical data, the EEOC identified three particular employment practices of Consolidated which it alleged evidenced discrimination: (1) Consolidated's placement of a single, three-day advertisement for job openings in a Korean-language newspaper; (2) Consolidated's word-of-mouth recruiting methods; and (3) Consolidated's subjective hiring practices. (Tr. 779-80.) None of these alleged practices, however, were fully supported by sufficient credible proof at trial to be shown by a preponderance of the evidence. Moreover, even if the proof had been sufficient, none of these alleged practices prove discriminatory motive by Consolidated a critical element of the EEOC's burden of proof for a disparate treatment case. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15.
For example, the EEOC admits that Consolidated placed only one job advertisement in a Korean-language newspaper an advertisement which ran for three days. The mere fact that Mr. Hwang chose to advertise on one occasion in a Korean-language newspaper does not demonstrate that he harbored a discriminatory intent against non-Koreans. On the contrary, the court is convinced that Mr. Hwang did not discriminate against non-Koreans because Consolidated hired no one as a result of that ad in the Korean language newspaper. Besides, Mr. Hwang advertised in the general circulation newspaper the Chicago Tribune on more than one occasion with similar results.
Similarly, the undisputed fact that Mr. Hwang's applicants came to him primarily by word-of-mouth does not prove national origin animus by Consolidated against non-Koreans. Mr. Hwang was a member of the Korean community in the Chicago area. Mr. Hwang testified that he asked current Consolidated employees if they knew people who needed jobs only a couple of times between 1983 and 1987. (Tr. 39-40.) Mr. Hwang testified that people in his church sometimes came up to him and asked if he had jobs. (Tr. 40-41.) Mr. Hwang did not actively recruit at his church, however. (Tr. 40.) Moreover, the EEOC never established through Mr. Hwang what the national origin was of the members of his church. Mr. Hwang testified *608 that the Korean-Association of Chicago and the Korean-American Association sent employees to him. The court believed Mr. Hwang, however, when he stated that he never actively recruited through these organizations. (Tr. 43.)
Title VII does not require that Mr. Hwang, when approached about job opportunities by those around him, refuse to speak about those opportunities. On the contrary, the disparate treatment methodology requires proof of discriminatory motive. The EEOC's proof does not demonstrate that Mr. Hwang treated Koreans and non-Koreans differently, or that any such treatment was the result of national origin animus. It simply shows that Mr. Hwang responded to those around him who approached him about job opportunities. Such behavior falls far short of the proof of intentional discrimination required for a disparate treatment claim.
The third and final employment practice of which the EEOC complains is Consolidated's so-called "subjective hiring practices." Again, however, the EEOC's proof does not demonstrate the intentional discrimination required of a disparate treatment claim. The EEOC may have introduced such evidence as part of its disparate impact claim. However, because the court found unreliable the EEOC's statistical data relating to purported work force disparities, it need not reach the practices which the EEOC claims account for those purported disparities.
3. The Anecdotal Evidence
Finally, the EEOC presented four witnesses who apparently were to testify to specific instances of discrimination by Consolidated. Anecdotal evidence of discrimination may be used to supplement a showing of class-wide disparate treatment. Indeed, plaintiff classes often make out pattern-or-practice showings through "a combination of strong statistical evidence of disparate impact coupled with anecdotal evidence of the employer's intent to treat the protected class unequally." Mozee, 940 F.2d at 1050-51. The EEOC's anecdotal evidence, however, fails to prove an intent by Consolidated to treat non-Koreans unequally.
This case is unlike the situation in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters the plaintiff bolstered its statistical evidence with the testimony of credible individuals who recounted over forty specific instances of discrimination by the defendant. 431 U.S. at 338, 97 S.Ct. at 1856. Based upon that specific testimony, the district court concluded that the defendant had ignored black and Spanish-surnamed applicants, had given such applicants false or misleading information about job requirements, opportunities, and applications, and had considered such applicants differently from white applicants. Id. In striking contrast to the evidence presented in Teamsters, in this case the EEOC presented the testimony of only four individuals, none of whom were credible.
The EEOC first presented the testimony of Ms. Charlotte Carthen, whose national origin was unproven by her testimony.[6] Ms. Carthen responded in March 1985 to a newspaper advertisement placed by Consolidated. (Tr. 228.) She received and filled out an application for employment with Consolidated but was not hired. (Tr. 229.) According to the credible testimony of Mr. Hwang, the ad to which Ms. Carthen responded had been placed in the Chicago Tribune (Pl.Ex. 140.; Tr. 737.) However, Consolidated hired no one as a result of that ad because Consolidated failed to receive the contract which it was hoping to receive when it placed the newspaper advertisement. (Tr. 737.) Moreover, the EEOC presented no evidence that Consolidated had any jobs available that fit Ms. Carthen's desires. Before she applied at Consolidated, Ms. Carthen was employed as a receptionist. After she applied to Consolidated, she was employed as a receptionist. (Tr. 231.) The court in assessing Ms. Carthen's demeanor on the witness stand did not believe she was truly interested *609 in Consolidated cleaning work. Moreover, there was no proof Consolidated discriminated against her on the basis of her national origin even if she had testified to her national origin.
The EEOC next presented the testimony of David Wilkerson, another witness who did not testify to his national origin.[7] Mr. Wilkerson also applied for a job with Consolidated in 1985 based on a newspaper advertisement. (Tr. 236.) The court infers it was the same March 1985 Chicago Tribune ad (Pl.Ex. 140.) to which Ms. Carthen responded and from which Consolidated hired no one because it had no jobs to fill because it did not receive the contract. (Tr. 737.) Consolidated did not offer Mr. Wilkerson a job. (Tr. 237.) The court found Mr. Wilkerson's testimony incredible. For example, Mr. Wilkerson testified that he was unemployed when he applied to Consolidated in 1985. (Tr. 237.) Mr. Wilkerson later testified, however, that he in fact was employed by the Salem Service Company between 1984 and 1986. As with Ms. Carthen, Mr. Wilkerson never testified about acts of discrimination by Consolidated. He simply stated that he applied to but was not hired by Consolidated. (Tr. 236-237.) Consolidated's credible legitimate business reasons for not hiring him was that it had no open positions.
The EEOC's third anecdotal witness was Ricardo DeJesus. Mr. DeJesus was from Puerto Rico and testified that he found out about Consolidated through word-of-mouth namely, from a non-Korean gentleman. (Tr. 249, 260.) That testimony was hardly evidence of the discriminatory impact of Consolidated's word-of-mouth recruiting methods. Moreover, the court found Mr. DeJesus' testimony inconsistent as well. Like the other witnesses, Mr. DeJesus applied to but was not employed by Consolidated. (Tr. 251.) However, Mr. DeJesus testified that he quit a job paying $6.50 an hour because his employer refused to give him a raise. (Tr. 263.) The court does not believe Mr. DeJesus was truly interested in a job that paid even less, such as the low-paying positions available at Consolidated.
The EEOC's final anecdotal witness was George Brown. He testified his nationality was black. (Tr. 264.) Mr. Brown testified he applied to Consolidated after reading a Chicago Sun-Times newspaper ad, but was not hired. (Tr. 265, 266.) Mr. Brown's testimony contained several inconsistencies. He was not credible. For example, Mr. Brown was adamant that he had learned about job openings at Consolidated through an advertisement in the Chicago Sun-Times newspaper a newspaper in which Consolidated never placed any advertisements. (Tr. 273.) Moreover, Mr. Brown testified that he wanted a position paying $200.00 per week. (Tr. 273.) Again, the EEOC failed to demonstrate that Consolidated had a position paying that kind of money at the time Mr. Brown applied.[8]
What is most striking about the EEOC's anecdotal witnesses is not their testimonial inconsistencies. Most telling is that the EEOC presented no evidence whatsoever through these witnesses evidencing any acts by Consolidated which prove it discriminated against them because they were non-Korean. Unlike the Teamsters case, none of Consolidated's anecdotal witnesses testified to any specific acts of discrimination by Consolidated. The EEOC's anecdotal evidence simply establishes that Consolidated did not offer jobs to these four individuals. This is not evidence of an intent by Consolidated to discriminate against people seeking employment because they were not Korean.
In summary, then, the court finds that the EEOC has failed to prove by a preponderance *610 of the evidence that national origin discrimination was Consolidated's "standard operating procedure." Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. The EEOC's proof fails under both the disparate impact and the disparate treatment methods of proof. The EEOC failed properly to demonstrate disparate impact because its statistics did not properly consider the relevant labor pool those individuals both qualified and interested in the janitorial positions available at Consolidated. The EEOC failed to prove disparate treatment because none of its evidence demonstrated that Consolidated intentionally discriminated against non-Koreans. Accordingly, judgment must be entered in favor of Consolidated.
III. CONCLUSION
For the reasons stated in this memorandum opinion and order: (1) JUDGMENT is entered in favor of defendant Consolidated and against plaintiff EEOC; (2) this case is DISMISSED in its entirety.
NOTES
[1] According to plaintiff's expert a person is "Korean" as the term is used by plaintiff when the person or person's ancestors were born in Korea and the person would identify himself as Korean in the Census. (Tr. 57-58.) The court for purposes of this opinion has used plaintiff's definition of "Korean".
[2] The labor pool which Dr. Bloch actually analyzed which is closest to the proper pool presumably is "part-time janitors and cleaners." At least this occupational category apparently contains only part-time employees doing janitorial work. (See Pl.Ex. 125 at 5.) The EEOC defined "part-time" as a job requiring between one and thirty-four hours per week. (Tr. 437.) Other than this description, the EEOC did not further define the occupational category "part-time janitors and cleaners."
Dr. Bloch's testimony does not establish to what extent the occupational category "part-time janitors and cleaners" shares other key characteristics with the positions available at Consolidated, such as undesirable working hours, low wages, no fringe benefits, etc. (See, e.g. Tr. 451-453, 503-504, 517 (census data does not reflect average compensation or wages earned, the time of day when individuals work, etc.).) This failure undermines the court's confidence in Dr. Bloch's statistical analysis, especially given Dr. Bloch's lack of familiarity with the actual positions available at Consolidated.
[3] The parties agreed that "[m]any individuals qualified for Consolidated's cleaner jobs would not seek them because they could command jobs more attractive in wages, benefits, and other working conditions." (Statement of Stipulated Facts, ¶ 20.)
[4] Actually, given that there has been a full trial in this case, the issue of the EEOC's prima facie case drops out. As to disparate impact, the ultimate question for this court to decide is whether the EEOC has proven, by a preponderance of the evidence, that Consolidated's employment practices are discriminatory because it has a disparate impact justified by the defendant's legitimate business needs. Allen v. Seidman, 881 F.2d 375, 379 (7th Cir.1989). The court finds based on all the evidence that the EEOC's proof has failed.
[5] Similarly, the EEOC presented no evidence that Consolidated refused to advertise in newspapers of general circulation, instead favoring Korean-language newspapers. The EEOC's proof simply demonstrated that Consolidated placed advertisements in only two newspapers a few advertisements in an English-language newspaper and one in a Korean-language newspaper. The EEOC has not proven that Mr. Hwang affirmatively refused to advertise in general circulation newspapers. Accordingly, the EEOC has presented no evidence which belies the credible testimony by Mr. Hwang which reflects that Consolidated did not use hiring and recruitment practices for discriminatory reasons.
[6] The EEOC never asked Ms. Carthen about her national origin.
[7] The EEOC failed to ask Mr. Wilkerson, too, about his country of origin.
[8] On the contrary, the evidence indicated that Consolidated's positions paid less than $5.00 per hour for under 25 hours of work per week. (Tr. 727-729.) Additionally, Mr. Brown had been fired from a previous janitorial position, because he had been stealing the product of the facility he was supposed to be cleaning. (Tr. 275.) Mr. Brown failed to note that former employment on his application for employment to Consolidated. He was neither honest nor credible.
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276 S.C. 229 (1981)
277 S.E.2d 595
Charles T. McDUFFIE, Appellant,
v.
STATE of South Carolina, Respondent.
21436
Supreme Court of South Carolina.
April 22, 1981.
Chief Atty. John L. Sweeny of S.C. Commission of Appellate Defense, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. William K. Moore, Columbia, for respondent.
April 22, 1981.
NESS, Justice:
Appellant Charles T. McDuffie appeals from an order granting summary judgment to the State and dismissing his application for post conviction relief because he lacked standing. We reverse.
McDuffie was convicted of assault and battery of a high and aggravated nature in South Carolina in 1966. It is uncontradicted that he served the sentence and has been unconditionally released. He is currently serving a prison sentence in North Carolina on an unrelated charge. McDuffie alleged *230 in his application for relief that the 1966 South Carolina conviction is being used to adversely affect his current sentence in North Carolina, to wit, (1) enhance his sentence; (2) reduce prison privileges; and/or (3) reduce his possibility of parole.
McDuffie asserts the trial court erred in granting the State summary judgment and dismissing his application for post conviction relief because he lacked standing. We agree.
The trial court, relying on Finklea v. State, 273 S.C. 157, 255 S.E. (2d) 447 (1979), held McDuffie lacked standing under the Post Conviction Procedure Act, S.C. Code § 17-27-10 et seq. (1976), because he was not incarcerated at this time as a result of his 1966 South Carolina conviction. The trial court's reliance on Finklea is misplaced because McDuffie does not allege in his application that he is incarcerated because of his 1966 conviction. Rather, he asserts he still suffers from the results of it.
In United States v. Morgan, 346 U.S. 502, 512-513, 74 S. Ct. 247, 253, 98 L. Ed. 248 (1954), the United States Supreme Court held:
"Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid." (Footnotes omitted).
In United States v. Gernie, 228 F. Supp. 329, 332 (D.C. S.D.N.Y. 1964), the court quoting from Morgan, supra, held:
"[T]he case is not considered moot merely because sentence has been completed, and the court has power to vacate and set aside an illegal conviction and sentence if the proceedings are well-grounded."
*231 We hold where an applicant for post conviction relief alleges in his application that the results of his prior conviction still persist, even though the sentence has been fully served, he is entitled to an evidentiary hearing to determine whether or not he has been prejudiced.
The order of the trial court dismissing McDuffie's application is reversed and the case is remanded for an evidentiary hearing on the issue of whether he is prejudiced by his 1966 South Carolina conviction.
Reversed and remanded.
LEWIS, C.J., and LITTLEJOHN, GREGORY and HARWELL, JJ. concur.
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157 Ga. App. 290 (1981)
277 S.E.2d 286
DAVIS
v.
THE STATE.
60567.
Court of Appeals of Georgia.
Decided January 30, 1981.
A. E. Wallace, for appellant.
Michael D. Anderson, Assistant District Attorney, for appellee.
POPE, Judge.
Appellant was convicted of burglary. In his sole enumeration of error, he contends that the trial court erred in denying his motion for mistrial. We affirm.
A police officer testified as follows: "Q. All right. Now, what did you read to Mr. Calvin Davis? A. (witness producing a document) The standard Miranda warning that we were issued to read to the subjects when they are arrested to advise that they are under arrest. You have the right to remain silent. Anything you say will be used in Court as evidence against you. You're entitled to have a lawyer now and have him present now or at any time during questioning. If you can't afford a lawyer, one will be appointed for you without cost and he may be present at all times during your questioning.
"I asked him, I said, do you understand these rights and both persons either signified verbally or nodded their head. And, we started questioning them and neither one of them wanted to state anything at all at that time." Appellant moved for a mistrial on the ground that the officer's testimony constituted an impermissible comment on his right to remain silent. The trial court denied the motion, but instructed the jury as follows: "Ladies and gentlemen of the jury, just before you went outside, the witness did not really respond to the question. He made a statement about what the witness what the defendant did or did not say. In that regard, the Court cautions you that a defendant has an absolute constitutional right to remain silent. He does not have to make any statement whatsoever. *291 And, if he did remain silent or if he made any statement, if you should determine that he said anything in this regard, his silence shall not be used against him and you are not to attribute anything harmful to a person because they exercised their constitutional rights to remain silent.
"Can all the jurors do that? If any of you cannot do that, please raise your hand.
"All right. Proceed."
Appellant contends the trial court's instruction was insufficient to erase the prejudicial effect of the officer's statement on the jury. However, we are not here faced with character attacks of the sort which necessitated reversal in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396) (1978) and Posey v. State, 152 Ga. App. 216 (262 SE2d 541) (1979). Furthermore, the "fact" of appellant's silence was not again alluded to during the course of the trial. "[U]nder the circumstances here we do not find that the trial court in anywise abused its discretion in the method in which it immediately took steps to correct any improper statements by the witness." Newton v. State, 154 Ga. App. 98, 100 (267 SE2d 641) (1980).
Judgment affirmed. McMurray, P. J., and Banke, J., concur.
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280 Pa. Superior Ct. 309 (1980)
421 A.2d 737
COMMONWEALTH of Pennsylvania
v.
Percy T. JOHNSON, Appellant.
Superior Court of Pennsylvania.
Submitted March 23, 1979.
Filed September 26, 1980.
*310 Adrian L. Meyer, Doylestown, for appellant.
Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.
CERCONE, President Judge:
Appellant, Percy T. Johnson, takes this appeal from the lower court's denial of his Post Conviction Hearing Act (PCHA)[1] petition. Appellant argues, inter alia, that his trial counsel was ineffective for failing to properly and timely file post-trial motions subsequent to appellant's conviction of armed robbery on October 21, 1972. Appellant asks this court to allow him to file post-trial motions nunc pro tunc. Appellant's argument is meritorious; therefore, we reverse the decision of the lower court and order that appellant be allowed to file post-trial motions nunc pro tunc on his armed robbery conviction.
*311 At the outset, it must be noted that the procedural history in the instant case is far from clear. But after careful study of the record, we traced the following. On October 16, 1972, appellant was brought to trial in Bucks County on two separate indictments-one charging, principally, armed robbery,[2] the other charging appellant with murder[3] and related offenses. The jury returned with a guilty verdict on the armed robbery charge, but the jurors were unable to reach a verdict on the murder indictment. As was provided by Pa.R.Crim.P. 1120(e),[4] the court therefore accepted the jury's verdict on the armed robbery charge and granted a mistrial on the murder charge. Upon retrial, appellant was convicted on December 8, 1972 of murder. Subsequently, on December 13, 1972, motions in arrest of judgment and for a new trial were "clocked in" at the district attorney's office, and herein lies the dispute. Two sets of motions were sent to the district attorney's office-one for the armed robbery conviction and one for the murder conviction. However, for some unexplained reason, only the post-trial motions for the murder were filed and docketed with the Clerk of Quarter Sessions. In the latter motions, defense counsel challenged the selection and array of jurors in Bucks County, an issue that was initially raised prior to appellant's first trial (the armed robbery conviction). The lower court ruled on appellant's post-trial motions in Commonwealth v. Johnson, 24 Bucks Co.L.Rep. 326 (1973); however, it is apparent from the court's opinion that the motions pertaining to appellant's armed robbery convictions were not before the court, for the court said,
*312 "Defendant filed no post-trial motions at the conclusion of the first trial but at the conclusion of the second trial did file motions as in the nature of motions in arrest of judgment and for a new trial. Therefore, we perceive that defendant takes no issue with the verdict of guilty as entered and recorded as the result of the first trial but only with the verdict of guilty of murder in the first degree resulting from the second trial. Defendant's motions have been briefed and argued before the court en banc and we decide them herein." 24 Bucks Co.L.Rep. at 327.
The decision of the trial court was affirmed by the Supreme Court in Commonwealth v. Johnson, 460 Pa. 493, 333 A.2d 881 (1975). In its opinion, the Supreme Court mentioned appellant's armed robbery conviction only as one fact of the procedural history of appellant's murder conviction.[5] The Court gave no indication that the Court had before it post-trial motions for appellant's armed robbery conviction.
Subsequently, on August 23, 1977, appellant filed on his own behalf the herewithin PCHA petition. Counsel was appointed to represent appellant in this action and, on March 31, 1978, a hearing was held concerning the petition. Then, a few days later, on April 4, 1978, appellant's post-trial motions on his armed robbery conviction, the same legal papers which were "clocked in" at the district attorney's office on December 13, 1972, were marked "received" by the Bucks County Clerk of Courts office and docketed-nearly five and one-half years after these motions were sent to the district attorney's office. Three weeks later, on April 28, 1978 the lower court denied appellant's PCHA petition. In its opinion, the lower court glossed over the question of whether appellant's post-trial motions were properly filed, saying of this in a footnote:
*313 "In his Post Conviction Hearing Act application defendant asserts ineffectiveness of trial counsel for failure to file any post trial motions regarding the first conviction. This contention of defendant is understandable inasmuch as such motions were not found among the papers in the Clerk of Criminal Court's file nor did a filing appear in the docket entries of that office. However, it is now abundantly clear that said motions were filed in both cases on December 13, 1972 but for reasons which now escape our memory were retained by the trial judge in his file rather than incorporated in the Clerk of Court's files. Those motions were filed by trial counsel and subsequent thereto additional reasons in support of those motions were filed by appellate counsel. There is no contention by the Commonwealth that the motions attacking the first verdict were not timely filed."
In the body of the opinion, the lower court makes no mention of the arguments contained in the mislaid post-trial motions on the armed robbery convictions. Aside from mentioning the fact that these motions were discovered among the court's papers, the court essentially ignored the motions.[6] Rather, the court concentrated on the fact that in the post-trial motions which were properly filed, appellant challenged the array of jurors. Because the challenge to the array of jurors is an issue which can be said to relate to both of appellant's trials, the PCHA court concludes that this particular issue constituted defense counsel's post-trial motion on the armed robbery conviction. The PCHA court, therefore, ruled that trial counsel was not ineffective for failing to file post-trial motions on the armed robbery conviction because, in the court's opinion, such motions were argued.[7] We find the PCHA court to be in error.
*314 In determining whether an appellant was afforded effective assistance of counsel, this court will make an independent review of the record. Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to further the client's interests. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979). In the case sub judice, defense counsel's actions cannot be said to have had a reasonable basis designed to further appellant's interests. Though defense counsel prepared motions for a new trial and in arrest of judgment for appellant's armed robbery conviction, counsel did not see to it that these motions were properly filed and docketed, thereby failing to protect appellant's appeal rights.
Recently, the Supreme Court addressed this very issue in Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980), wherein the Court said:
"If counsel fails to raise an issue in post-verdict motions or on appeal, he is deemed to be ineffective only if the issue is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). This is so, inter alia, because an accused has no absolute right to raise baseless claims and counsel cannot be faulted for not advancing issues which will not at least arguably obtain some relief for the accused.
On the other hand, an accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waivers the right, i.e., for not protecting the accused's right in the absence of an effective waiver. This requirement that counsel protect the *315 appellate right of an accused extends even to circumstances where the appeal is `totally without merit.' Commonwealth v. Perry, 464 Pa. 272, 275, 346 A.2d 554, 555 (1975). This is not to say counsel must advance baseless claims in an appeal; rather, under such circumstances, he must protect the accused's right through the procedure enunciated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 [18 L.Ed.2d 493] (1967). See Commonwealth v. Perry, supra; Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Quite simply, the Anders procedure would serve no purpose were we to accept the P.C.H.A. court's position in this case." 490 Pa. at 303, 416 A.2d at 479. (Emphasis in original) (Footnote omitted).
The lower court concluded that trial counsel did file and argue post-trial motions on both appellant's armed robbery convictions and appellant's murder convictions, but our independent review of the record fails to support the lower court's conclusion. In addition to the highly irregular docketing of the motions at issue, a perusal of the opinion written by the trial court when it ruled on appellant's post-trial motions gives no indication that the trial court had before it post-trial motions for the armed robbery conviction, though such motions were prepared; on the contrary, the trial court said that it "perceive[d] that defendant [took] no issue with the verdict of guilty as entered and recorded as a result of the first trial but only with the verdict of guilty of murder in the first degree resulting from the second trial." The Supreme Court's opinion in affirmance speaks of the issues only as they bear upon appellant's murder conviction. Although the PCHA hearing court concluded that defense counsel's challenge to the array of jurors was part of the post-trial motions for appellant's armed robbery conviction, it is apparent that the trial court did not view this argument as such, nor did the Supreme Court. For these reasons, we conclude that trial counsel was ineffective for failing to properly file appellant's post-trial motions following appellant's conviction for armed robbery. Accordingly, we reverse the decision of the PCHA hearing *316 court and order that appellant be allowed to file post-trial motions nunc pro tunc.
Reversed and remanded so that appellant might file post-trial motions on his armed robbery conviction nunc pro tunc.
NOTES
[1] 19 P.S. § 1180-1 et seq. (Supp. 1979).
[2] The Act of June 24, 1939, P.L. 872, § 705, 18 P.S. § 4705 (1945).
[3] The Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701 (1945).
[4] At the time of appellant's trial, Pa.R.Crim.P. 1120(e) provided: "If there are two or more indictments, the jury may report a verdict or verdicts with respect to those indictments upon which it has agreed, and the judge shall receive and record all such verdicts. . . . Where the indictments upon which the jury cannot agree are not included offenses of the indictment upon which it has agreed, the defendant or defendants may be retried on those indictments." The provisions of Rule 1120(e) are still in effect today.
[5] In its opening paragraph, the Supreme Court said, "Appellant, Percy Johnson, was tried by a judge and jury and found guilty of murder in the first degree. Post trial motions were denied and appellant was sentenced to life imprisonment in a state correctional institution. This appeal followed."
[6] Although the motions are essentially boilerplate, the issue of the sufficiency of the evidence to convict appellant of armed robbery appears to have arguable merit, although we need not decide now whether appellant should prevail.
[7] In the record before this court, there is a motion captioned "Defendant's Additional Reasons in Support of Motions for a New Trial and/or Arrest of Judgment." Ostensibly, this is a post-trial motion for appellant's armed robbery conviction. However, this particular paper was marked "received" by Clerk of Courts on April 4, 1978-after appellant's PCHA hearing. Contained in this motion is an argument that appellant's armed robbery conviction was invalid because the selection of jurors was improper. There is no indication that this particular paper was before the trial court when it ruled on post-trial motions.
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277 S.E.2d 462 (1981)
PLYMOUTH PALLET COMPANY, INCORPORATED
v.
Iris Davis WOOD (a/k/a Iris Wood Sutton).
No. 806SC898.
Court of Appeals of North Carolina.
May 5, 1981.
*463 Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for plaintiff-appellee.
Tharrington, Smith & Hargrove by Wade M. Smith and Douglas E. Kingsbery, Raleigh, for defendant-appellant.
ARNOLD, Judge.
Defendant's only assignment of error is that the trial court erred in refusing to explain the law of gift to the jury and to submit that issue to them with appropriate instructions.
When charging the jury in a civil case, it is the duty of the trial court to explain the law and to apply it to the evidence on the substantial issues of the action. G.S. 1A-1, Rule 51; Cockrell v. Cromartie Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978). When a party contends that certain acts constitute a defense against another, the trial court must submit the issue to the jury with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference *464 of each essential element of the defense asserted. See Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).
The substance of plaintiff's action is that defendant converted certain items of personal property belonging to plaintiff and refused to pay rent that was owed to plaintiff and past due. The only defense offered by defendant was that these items were gifts made to her by Mr. Harrison, plaintiff's chief executive officer and controlling stockholder. The essential elements of a gift inter vivos are: (1) the intent by the donor to give the donee the property in question so as to divest himself immediately of all right, title and control therein; and (2) the delivery, actual or constructive, of the property to the donee. 6 Strong's N.C. Index 3d, Gifts § 1 (1977).
It is apparent from a review of the record that the evidence, when viewed in the light most favorable to the defendant, will support a reasonable inference of the essential elements of the defense of gift. Mr. Harrison testified that he loved the defendant, that she had travelled with him and slept with him on a number of occasions, and that he wanted to marry her. He also testified that he controlled the plaintiff corporation, that either he paid for the items by personal check and was reimbursed by the company, or defendant purchased them and was reimbursed by him, and that the title and registration of the 1977 Oldsmobile were put in the name of the defendant. This evidence is sufficient to require the trial court to declare and explain the law of gift and submit the issue to the jury. Failure to do so was prejudicial error.
This action is remanded for a new trial. New trial.
HEDRICK and WEBB, JJ., concur.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00041-CV
____________________
HARALD HUBLIK, Appellant
V.
DIANE MARROW, Appellee
_______________________________________________________ ______________
On Appeal from the County Court at Law No. 2
Montgomery County, Texas
Trial Cause No. 13-27715
________________________________________________________ _____________
MEMORANDUM OPINION
On February 28, 2014, we notified the parties that the appeal would be
dismissed for want of prosecution unless arrangements were made for filing the
record or the appellant explained why additional time was needed to file the
record. We also notified the parties that the appeal would be dismissed unless the
appellant remitted the filing fee for the appeal. The appellant did not respond to the
Court’s notices. The appellant did not file an affidavit of indigence and is not
entitled to proceed without payment of costs. See Tex. R. App. P. 20.1. There
1
being no satisfactory explanation for the failure to file the record, and there being
no satisfactory explanation for the appellant’s failure to pay the filing fee for the
appeal, the appeal is dismissed for want of prosecution. Tex. R. App. P. 37.3(b);
Tex. R. App. P. 42.3.
APPEAL DISMISSED.
________________________________
CHARLES KREGER
Justice
Opinion Delivered April 10, 2014
Before McKeithen, C.J., Kreger and Johnson, JJ.
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280 Pa. Superior Ct. 610 (1980)
421 A.2d 1099
SHAWVILLE COAL COMPANY, Appellant,
v.
Roger MENARD.
Superior Court of Pennsylvania.
Argued April 14, 1980.
Filed September 26, 1980.
*611 Constance B. Foster, Philadelphia, for appellant.
Joseph Colavecchi, Clearfield, for appellee.
*612 Before SPAETH, WICKERSHAM and LIPEZ, JJ.
SPAETH, Judge:
This is an appeal from an order denying appellant's motion for summary judgment and dismissing appellant's complaint against appellee.
In Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa.Super. 341, 350, 361 A.2d 676, 680 (1976), we stated:
[I]n passing upon a motion for summary judgment, "it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as a material fact must be resolved against the party moving for summary judgment. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968)." Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971) (emphasis added).
Examined in this light, the record, which is composed only of the parties' pleadings,[1] may be summarized as follows.
The action is for ejectment and an accounting. Appellant is a Pennsylvania corporation with its principal place of business in Shawville, Pennsylvania. Appellee is an individual who does business under the name of Menard Dodge, a company located in Clearfield, Pennsylvania. Appellant brought the action when it discovered that appellee was removing coal and other valuable minerals from a tract of land in Clearfield County that appellee owned, but that appellant claimed the right to mine for coal and other minerals.
Prior to 1922, the tract in question was owned by the Five Brothers Coal Company. On July 20, 1922, Five Brothers *613 conveyed the tract[2] to one Reuben McDonald. The deed, however, contained the following reservation:
Reserving, however, from the above described premises, all the coal and other minerals, together with the right of ingress and regress, into and from said land, for the purpose of examining and searching for and of mining and preparing said coal for market; and removing and transporting the same and other coal, now owned or hereafter to be purchased or operated, by [Five Brothers], its successors and assigns; and for these purposes [Five Brothers] may build railroads, roads and drains upon or under the surface of said land, locate and erect such buildings and structures including miners houses, as may be necessary and proper for the convenient use and working of the mines with the right to deposit the waste or dirt of said mines upon the surface convenient thereto . . . [McDonald] for himself, his heirs and assigns, hereby releasing all claims for damages to said land, the waters therein and thereon and the buildings now or hereafter to be erected thereon, caused by exercising the rights aforesaid and with the right to [Five Brothers], its successors and assigns, to remove from said premises any houses erected thereon by them.
Also reserving unto [Five Brothers], its successors and assigns, all the timber growing or lying on said premises, as long as they are mining or removing the coal therefrom. When said mining operations have been abandoned, the timber remaining shall belong to [McDonald].
On November 26, 1924, Five Brothers granted to one S.T. McClure the rights and privileges reserved in its deed to McDonald. When McClure's will was probated in 1951, his interest in the property passed to his wife Eulala McClure. On December 30, 1955, Eulala McClure granted the River Valley Construction Company
all the rights and privileges she [McClure] is now vested with, which were reserved to Five Brothers Coal Company, *614 its successors and assigns, in a certain deed by Five Brothers Coal Company to Reuben W. McDonald, dated the 20th day of July, 1922.
The deed, however, contained the following reservation:
Excepting and reserving, however, from this grant all the coal and other minerals together with the right, jointly with [River Valley], its successors and assigns, of ingress, egress and regress into and from said land for the purpose of examining and searching for and mining and preparing said coal for market and removing and transporting the same and other coal now owned or hereafter to be purchased, or operated, by [McClure], her heirs and assigns, and for these purposes to build railroads, roads and drains upon or under the surface of said land, locate and erect such buildings and structures as may be necessary and proper for the convenient use and working of the mines with the right to deposit the waste or dirt of said mines upon the surface convenient thereto. Said [River Valley], for itself, its successors and assigns, hereby releasing all claims for damages to said land, the waters therein and thereon and the buildings now or hereafter to be erected thereon caused by exercising the rights aforesaid.
On August 17, 1956, River Valley quit-claimed to Reuben McDonald and his wife Catherine all rights it may have received from the December 30, 1955, deed from Eulala McClure. On November 23, 1977, the McDonalds conveyed their entire interest in the tract in question to appellee. Meanwhile, on November 11, 1969, Eulala McClure died testate and devised her interest in the tract to John E. Funk, Mary Jane Williams, and Jane E. Smith. On April 27, 1978, Funk and his wife Monique, Williams and her husband Crawford, and Smith and her husband Harry conveyed to appellant "All the coal, other minerals, mining rights, and all other privileges now vested in the Grantors which was [sic] reserved to Eulala McClure in a certain Deed from Eulala McClure, widow, to River Valley Construction Company, dated December 30, 1955."
In its opinion accompanying its order denying appellant's motion for summary judgment and dismissing the complaint, *615 the lower court reasoned that the reservation clause in Eulala McClure's 1955 deed to River Valley was meaningless because it reserved only rights that the deed had in fact granted to River Valley. The court relied on Shoenberger v. Lyon, 7 Watts & S. 184, 194 (1838), for the proposition that "[a] reservation which is as large as the original grant is void, and the grant is valid." By this reasoning, since all of Eulala McClure's rights to the tract passed to River Valley, and ultimately to appellee, appellee owned the right to mine the coal under the tract.
In Highland v. Commonwealth, 400 Pa. 261, 283, 161 A.2d 390, 401, cert. den., 364 U.S. 901, 81 S.Ct. 234, 5 L.Ed.2d 194 (1960), the Supreme Court set out certain guidelines for the interpretation of deeds:
"Among such rules are . . . (1) that the nature and quantity of the interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words; (2) effect must be given to all the language of the instrument and no part shall be rejected if it can be given a meaning; (3) the language of the deed shall be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed." (Quoting Yuscavage v. Hamlin, 391 Pa. 13, 16, 137 A.2d 242, 244 (1958), emphasis supplied.)
Moreover, in Richardson v. Clements, 89 Pa. 503, 505 (1879), the Court said that
when the language making an exception or reservation in a deed, is doubtful, it should be construed more favorably to the grantee. It is only when it is doubtful, that this rule can be applied. It has no place when the language is sufficiently clear to define the character and extent of the exception or reservation.
See Walker v. Walker, 153 Pa.Super. 20, 33 A. 455 (1943). Finally, in Foster & Co. v. Runk, 109 Pa. 291, 2 A. 25 (1885), where the deed contained grant and reservation clauses that *616 were seemingly identical, the Court made a particular effort to find meaning in the reservation clause, stating:
From a technical and scientific standpoint undoubtedly the reservation embraces everything that is the subject of grant . . . . But we cannot thus construe the contracts of ordinary people, for if we did so the intention of the parties would, as a rule, be defeated. For such contracts the proper construction is that which is made by viewing the subject matter of the contract as the mass of mankind would view it, since it is most reasonable to suppose that such was the aspect in which the parties viewed it. 109 Pa. at 295, 2 A. at 27.
Here, Eulala McClure's 1955 deed granted River Valley "all the rights and privileges" that had first been reserved by Five Brothers in its 1922 deed to McDonald and then granted by Five Brothers in its 1924 deed to S.T. McClure. These rights and privileges included (1) "all the coal and other minerals" on the tract, (2) the right of "mining . . ., removing and transporting the same and other coal, now owned or hereafter to be purchased," and (3) the right to "all the timber" on the tract "while mining or removing the coal therefrom". At the same time, the deed reserved to Eulala McClure (1) "all the coal and other minerals" on the tract, and (2) the right "jointly with [River Valley] of mining . . . said coal . . . and removing and transporting the same and other coal now owned or hereafter to be purchased. . . by [McClure]" (emphasis added). When these two lists of rights and privileges are compared, it will be seen that they are not identical. If Eulala McClure had said to River Valley, "I give you the right of `removing and transporting the same and other coal,' which right I acquired through my husband from Five Brothers, but at the same time I reserve the right of `removing and transporting the same and other coal,'" then indeed it might be said, as did the lower court, that her reservation was as large as her grant, and that the reservation was therefore void and the grant valid. However, what Eulala McClure said to River Valley was not this, but was "I give you the right of `removing and transporting the same and other coal,' which right I acquired through my *617 husband from Five Brothers, but at the same time I reserve the right `jointly with [you]' of `removing and transporting the same and other coal.'" Thus Eulala McClure did not by her reservation take away from River Valley all that she had given it by her grant. By the grant, only River Valley could remove and transport the same and other coal. The reservation cut down this grant in that after the reservation, both River Valley and Eulala McClure could remove and transport the same and other coal. Therefore, after the reservation, River Valley had two rights that it had not had before the grant: first, it could mine and remove coal from the tract (not exclusively, to be sure, for so could Eulala McClure); and second, it could transport other coal from an adjoining tract (again, not exclusively, for so could Eulala McClure).[3] Finally, there was a third right that River Valley got by the grant and that was not taken away by the reservation. By the grant Eulala McClure said to River Valley, "I give you `all the timber' on the tract while you are `mining or removing the coal therefrom', which right I *618 acquired through my husband from Five Brothers." In her reservation, she made no reference to this right; she therefore did not take it back, and River Valley retained it.
McClure's grant to River Valley of the right to mine and remove coal from the tract constituted valuable consideration for the deed notwithstanding the fact that River Valley had to share this right with McClure. It is established that there may be many different owners of the minerals underlying a tract. See e.g. Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787 (1920); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906). Two or more parties may mine for coal or other minerals either as the result of a license being granted to one or more of them, see e.g. Jennings Bros. & Co. v. Beale, 158 Pa. 283, 27 A. 948 (1893); Gloninger v. Franklin Coal Co., 55 Pa. 9 (1867); The Johnstown Iron Company v. The Cambria Iron Company, 32 Pa. 241 (1858), or as the result of a tenancy-in-common, see e.g. Virginia Coal & Iron Co. v. Hylton, 115 Va. 418, 79 S.E. 337 (1913). Though River Valley's nonexclusive right to mine the tract was less valuable than an exclusive right would have been, it nevertheless had value. See e.g. Jennings Bros. & Co., supra; Gloninger v. Franklin Coal Co., supra; The Johnston Iron Company v. The Cambria Iron Company, supra.
Moreover, River Valley's second joint right with McClure, the right to transport River Valley's other coal from an adjoining tract, also constituted valuable consideration for the deed. In Kormuth v. U.S. Steel Company, 379 Pa. 365, 108 A.2d 907 (1954), cert. den., 349 U.S. 911, 75 S.Ct. 600, 99 L.Ed. 1246 (1955), the grantor conveyed coal and other mineral rights while reserving surface rights. The clause granting the coal rights included the following language:
together with . . . right of way into, upon and under said land at such points in such manner as may be proper and necessary for the purpose of . . . mining . . . and carrying away said coal; Hereby waiving surface support . . .; [and] together with the privilege of mining and removing through said described premises other coal belonging to *619 the [grantee], . . . its successors and assigns, or which may hereafter be acquired. (Italics supplied) [by court].
379 Pa. at 367, 108 A.2d at 908.
A dispute arose when the grantee's assignee conveyed only its easement rights to a third party. The grantor's assignee claimed that the grantee's assignee did not have the right to alienate its easement rights to a third party that did not also possess the right to mine the coal under the tract. The Supreme Court held in favor of the third party's right to transport its coal across the tract because it construed the original deed to have granted two separate and distinct rights that could be alienated independently of each other. Said the Court:
[The deed] conveyed the 300 acres of coal, with the `right of way into, upon and under said land at such points and in such manner as may be proper and necessary' for its mining and removal. And it granted a right of way to remove `through said described premises other coal belonging to the [grantee] . . . its successors and assigns or which may thereafter be acquired.' (Italics supplied) [by court].
379 Pa. at 369, 108 A.2d at 909.
And furthermore:
Contrary to the contention of [grantor's assignee], [the right to remove other coal belonging to grantee, its successors and assigns or which may hereafter be acquired] was not restricted to [grantee's] holdings, but intended to include any coal owned by its transferees at such time as the right of way should be used. . . . This right was exclusive or independent of [the] right to the [grantor's] coal, and necessarily must be taken to give the right to remove the coal owned at any time by [the grantee] and owned at any time by any of its transferees.
379 Pa. at 372, 108 A.2d 910. (emphasis added).
Kormuth is supported by cases stating that a grantor's conveyance of the right to use the surface of his land to transport other coal owned by the grantee is entirely separable from any accompanying grant to mine the coal under the *620 tract itself.[4] See e.g. Westerman v. Penna. Salt Mfg. Co., 260 Pa. 140, 103 A. 539 (1918); Stewart v. Northwestern C. & I. Co., 147 Pa. 612, 23 A. 882 (1892). In Robinson v. Stover, 320 Pa. 308, 312, 182 A. 145, 146 (1936), the Court stated:
When . . . the owner of lands grants the right to another to remove minerals beneath the surface thereof, ordinarily he receives "rents or royalties"; when he permits minerals from adjoining lands to be transported over the surface of his own lands, he receives "wheelage" for the privilege granted. The consideration in the first instance is the marketing of his minerals, but in the latter case, as he has no interest in the removal of such foreign minerals, the consideration is the hindrance to his full enjoyment of the surface of his lands.
See Hindman v. Farren, 353 Pa. 33, 44 A.2d 241 (1945).
Moreover, Kormuth and the cases that support it are consistent with cases in other jurisdictions. See Mines Transporting From Other Tract, 83 A.L.R.2d 665 (1962). A particularly helpful case from another jurisdiction is Groves v. Terrace Mining Company, 340 S.W.2d 708 (Mo. 1960). There, the owner of a tract entered into a lease under the terms of which the lessee was given the right to mine the tract and transport other ores owned by him across the tract. The lessor subsequently sold the property to a third party. In the deed, the lessor-grantor reserved for himself the mineral rights to the property, but did not explicitly *621 reserve the right to transport either his or his lessee's other minerals or ores across the surface of the tract. The question arose as to whether the lessor-grantor or the grantee was to receive the monies paid by the lessee for the right to transport its other ores across the surface of the tract. The court held in favor of the grantee, reasoning that since the lessor-grantor had not explicitly reserved the "wheelage" rights to the property, the grantee was entitled to them.
Here, since Eulala McClure's 1955 deed granted River Valley joint mining and "wheelage" rights, as well as exclusive timber rights on the tract, the grant and reservation clauses of the deed were valid. Appellant and appellee are therefore joint owners of the coal and other minerals under the tract, unless either party can show by extrinsic evidence, not previously before the lower court, that it is the sole owner of the rights. We shall allow such a showing to be made, if it can be, because neither party advanced the claim here or below that it was a joint owner of the rights.
Reversed and remanded with instructions to enter a judgment consistent with this opinion, without prejudice, however, to the right of either party to submit to the lower court extrinsic evidence that it is sole owner of the rights in question. After such such submission, and the lower court's order thereon, either party may take a new appeal.
NOTES
[1] Appellant served interrogatories on appellee but appellee objected and refused to answer them. This may explain why appellant filed a motion for summary judgment rather than a motion for judgment on the pleadings, the appropriate motion where only the pleadings are before the lower court. See Goodrich-Amram 2d § 1034(a):1 (1976).
[2] Five Brothers conveyed a tract containing 81.62 acres of which the tract in question, containing 34.75 acres, was a part.
[3] River Valley has a right to mine and remove coal from the tract notwithstanding the language in the reservation stating that McClure has a right to "all the coal and other minerals" under the tract. This language contradicts the later language in the reservation, which we have relied upon, that McClure only has a joint right with River Valley to "remov[e] and transport [] the same and other coal." (Emphasis added.) Appellant tries to avoid contradiction by suggesting that McClure reserved all the coal rights for herself, but granted River Valley only a joint "wheelage" right, that is, a right to transport coal from an adjoining tract. This interpretation, however, is not persuasive because the deed specifically states that the joint rights of River Valley are not just "wheelage rights", but also mining rights.
We believe our interpretation of the deed is preferable to one giving effect only to the part of the reservation reserving for McClure all the coal and other minerals under the tract. Were we to adopt such an interpretation of the deed, we should have to ignore the language giving River Valley a joint right to mine the tract and with it, necessarily, the language giving River Valley a joint right to transport other coal from an adjoining tract. River Valley would be left only with a right to timber on the tract; this right would be at least suspect since the 1922 deed reservation suggests that the timber right was appurtenant to a mining right. Without the timber right, River Valley would receive nothing by virtue of the 1955 deed, and the reservation in that deed would necessarily have to be invalidated for the conveyance to be valid.
[4] Several Pennsylvania cases suggest that where a party is granted the right to mine coal under a property it also has an implicit if not explicit right to move other coal owned by it through the passageways under the property while the coal is being mined. Webber v. Vogel, 189 Pa. 156, 42 A. 4 (1899); Lillibridge v. Coal Co., 143 Pa. 293, 22 A. 1035 (1891) (limited by Webber). The cases reason that since a grantee owns the coal, and in essence the space occupied by that coal while it is being mined, he may use that space as he wishes as it becomes available. Lillibridge v. Coal Co., supra. The grantee loses this right once the mine is exhausted or abandoned. Webber v. Vogel, supra. This reasoning is not applicable to the transportation on the surface of other coal owned by the grantee. Any additional use of the surface beyond that needed to mine the coal under the land itself imposes an encumbrance that will not be implied unless explicitly made a part of the agreement between the parties. Mines Transporting From Other Tract, supra.
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https://www.courtlistener.com/api/rest/v3/opinions/2259927/
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289 Md. 35 (1980)
421 A.2d 1360
FRED W. ALLNUTT, INC.
v.
COMMISSIONER OF LABOR AND INDUSTRY
[No. 2, September Term, 1980.]
Court of Appeals of Maryland.
Decided November 10, 1980.
*36 The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON, and RODOWSKY, JJ.
James L. Mayer, with whom were Richard B. Talkin and Talkin & Abramson on the brief, for appellant.
Leonard C. Redmond, III, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Alma L. Borenstein, Assistant Attorney General, on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
We granted certiorari in this case to determine whether a District Court's order denying a motion to quash an administrative search warrant constitutes a final judgment appealable under Maryland Code (1974, 1980 Repl. Vol.) § 12-401 (a) of the Courts and Judicial Proceedings Article.
By ch. 59 of the Acts of 1973, the General Assembly enacted the Maryland Occupational Safety and Health Act (MOSHA), now codified as Maryland Code (1957, 1979 Repl. Vol., 1980 Cum. Supp.), Art. 89, §§ 28-49C. The intent and purpose of the Act, as set forth in § 28 (c), is "to assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions." The Commissioner of Labor and Industry is charged with the responsibility of administering the provisions of the Act. Section 35 (a) authorizes the Commissioner or his representatives:
"to enter without delay and at reasonable times any factory, plant, establishment, construction site or *37 other area, work place, place of employment, or environment where work is performed by an employee of an employer, to inspect and investigate any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, agent or employee."
By ch. 443 of the Acts of 1978, codified as § 2A of Art. 89, an investigator or inspector of the Division of Labor and Industry[1] is authorized, in connection with inspections under § 35 (a), to apply "to the District Court for an administrative search warrant under the following conditions:
(1) He is authorized or required by law to make an inspection of certain premises or property in the State;
(2) He seeks access to such premises or property for the purpose of making an inspection; and
(3) He is denied access after making a proper request for access of the owner, lessee, tenant, or other person in charge of the premises or property.
(b) A judge of the District Court may issue an administrative search warrant if the application specifies the nature, scope, and purpose of the inspection to be performed by the applicant and upon a showing that:
(1) The applicant is authorized or required by law to make the inspection;
(2) The applicant was denied access to the premises or property after having made a proper request for access at a reasonable time;
(3) The application is approved by the Attorney General; and
(4) The inspection is sought for safety or health related purposes."
*38 On September 24, 1979, a Division inspector attempted to inspect the headquarters and maintenance shop of Fred W. Allnutt, Inc. (Allnutt). Allnutt's president refused to consent to the inspection, and the inspector applied for an administrative search warrant pursuant to § 2A. The application for the warrant recited that entry to the premises was for the purpose of inspecting and investigating "the safety and health conditions of said workplace or premises assuring that the employer ... is furnishing to its employees ... a place of employment ... free from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees" and to determine compliance with the provisions of MOSHA. In addition to containing the requisite statutory recitals, the application stated that the inspection was based upon "a general administrative plan" for the enforcement of MOSHA requiring "general schedule inspections and investigations carried out in accordance with criteria based upon accident experience and number of employees exposed in particular industries." The application further recited that Allnutt was "part of an industry that has a higher ratio of accidents in comparison to other industries." Allnutt's "compliance history" was appended to the application for the warrant.
Judge Raymond J. Kane, Jr. of the District Court for Howard County issued the administrative search warrant on September 24. Allnutt filed a motion to quash the warrant in the District Court, claiming, among other things, that it was issued in violation of the Fourth Amendment to the federal constitution and Article 26 of the Maryland Declaration of Rights. The motion was denied and Allnutt appealed to the Circuit Court for Howard County. The Commissioner filed a motion in the circuit court raising preliminary objections to the appeal, contending that the District Court's denial of Allnutt's motion to quash the warrant was not an appealable final order. The circuit court agreed and dismissed Allnutt's appeal, following which we granted certiorari.
Allnutt contends that the denial of its motion to quash was an appealable final order because under § 2A the District *39 Court had jurisdiction only over matters concerning the issuance of the warrant, and once it decided that the warrant would continue in effect, nothing remained to be done by the court. In addition, Allnutt argues that the refusal to grant the motion was a denial of an absolute constitutional right and was therefore immediately appealable. Appellant also suggests that even if the denial of the motion was not a final judgment, the District Court's action was subject to review under the collateral order doctrine. Regarding Art. 89, §§ 2A and 35, appellant argues that § 35 violates both the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights because it permits nonconsensual warrantless searches of private premises. These sections violate the same constitutional provisions, according to Allnutt, because they permit searches that are not based upon probable cause. Allnutt maintains that § 2A is also defective because it is a "special law" violative of § 33 of Art. III of the Maryland Constitution. Finally, appellant challenges the constitutionality of the search warrant issued in the instant case on the ground that (1) the application did not set forth sufficient facts to show probable cause, (2) the inspector was allowed to perform judicial functions in violation of the separation of powers provisions of the Maryland Constitution, (3) the warrant did not contain a specific description of the areas to be searched or the items to be seized, and (4) the warrant exceeded the scope of the statutory authority under which it was issued.[2]
The Commissioner argues that because the District Court's order denying the motion to quash the search warrant did not finally settle and conclude the rights involved in the action between Allnutt and himself, it was an interlocutory rather than a final appealable order. The Commissioner also contends that the District Court's action is not properly reviewable under the collateral order doctrine. *40 He further argues that §§ 2A and 35, taken together, provide adequate safeguards against unreasonable searches and seizures. Finally, the Commissioner denies that the warrant in this case was either lacking in specificity or exceeded the statutory authority under which it was issued.
I
Section 12-401 (a) of the Courts Article authorizes an appeal "from a final judgment entered in the District Court."[3] A "final judgment" is defined in § 12-101 (f) of the Courts Article as:
"a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken."
We observed in Warren v. State, 281 Md. 179, 377 A.2d 1169 (1977), involving an appeal from the District Court, that § 12-101 (f) does not specify what is an appealable final judgment but leaves that determination to the case law. In general, the cases hold that a judgment or order of a court is appealable if it is so final as to deny the appellant the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding. See Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978); Warren v. State, supra, 281 Md. at 183; D.C. Transit Systems v. S.R.C., 259 Md. 675, 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118, 186 A.2d 220 (1962).
Section 2A of Art. 89 provides for the issuance of an administrative search warrant only if certain prescribed conditions are met. The District Court's power comes exclusively from § 2A, and the court only has jurisdiction *41 either to issue the search warrant or deny the warrant application. Thus, once Judge Kane had issued the warrant and denied Allnutt's motion to quash, nothing remained before the court. Consequently, the District Court's order was appealable as a final judgment under § 12-401 (a) of the Courts Article, and the circuit court was in error in dismissing Allnutt's appeal.
An analogous situation was involved in Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir.1976), a case arising under the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (1970). There, an inspector who had been refused entry to the Restland Cemetery applied to a federal district court for an inspection warrant. The warrant was issued, and Restland filed a motion to quash after again refusing to admit the inspector. The district court denied the motion and Restland appealed. The appellate court held that it had jurisdiction to hear the appeal, stating (540 F.2d at 627 n. 3):
"The present action is independent of, although ancillary to, any enforcement proceeding that may subsequently be pursued under OSHA. The order of the district court refusing to quash the warrant provides `"a final and indisputable basis of action", as between the [agency] and the [cemetery]....' ICC v. Brimson, 154 U.S. 447, 487, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047 (1894). The matter reverts to the processes of the Department of Labor and there is nothing further for the district court to do."
A similar result was reached in Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1131 (3rd Cir.1979), in which the court held that it had jurisdiction to hear the appeal of a denial of a motion to quash an inspection warrant.
II
While we shall remand the case to the circuit court for consideration of the merits of the appeal, it may be of some benefit to briefly review the basic law respecting the application *42 of Fourth Amendment principles to administrative search warrants.
In Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), the Supreme Court considered whether the Fourth Amendment is applicable to administrative searches. Frank had been arrested and fined, as prescribed by the Baltimore City Code, for refusing to admit a Health Department inspector who sought to inspect his private dwelling for suspected Code violations. On appeal, Frank argued that his conviction for refusing to permit a warrantless search of his home was prohibited by the Fourth Amendment. The Supreme Court disagreed, holding that the Fourth Amendment was not intended to apply to administrative searches. Justice Douglas, dissenting, claimed that "[t]he Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions." 359 U.S. at 376.
Justice Douglas' view was adopted by the Court in the companion cases of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Camara had refused to allow a housing inspector to enter his apartment for the purpose of conducting an inspection because the inspector did not have a search warrant. The municipal code provided that refusal to admit a housing inspector was a misdemeanor, and Camara was subsequently arrested. He filed a petition with the Supreme Court for a writ of prohibition after his demurrer to the criminal complaint was denied. At the outset, the Court observed that
"one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." 387 U.S. at 528-29.
In rejecting the argument that the statute authorizing the inspection provided adequate safeguards against *43 unreasonable searches and seizures, and that a warrant procedure would provide no additional protection, the Court noted that the effect of the statute was to vest in individual inspectors the almost absolute discretion to invade private property. The Court indicated that the exercise of this kind of discretion was precisely what the warrant requirement was intended to prevent. It said:
"We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review...." Id. at 533.
The Court said it was not clear that the governmental purpose behind such administrative searches would be frustrated if they were subject to the protections of the Fourth Amendment. The Court concluded that some kind of warrant procedure was required and it undertook to consider the degree of Fourth Amendment protection applicable to administrative searches.
Camara argued that an administrative warrant should be issued only upon a showing that the inspector had probable cause to believe that a violation of the housing code existed within the particular dwelling to be searched. The Court rejected this contention. It said that to meet constitutional requirements a search must be "reasonable" within the meaning of the Fourth Amendment. A warrantless administrative search of Camara's apartment was deemed by the Court to be inherently unreasonable, but it did not clearly indicate what showing of probable cause would comply with the reasonableness standard. The Court observed that a balancing of the need to search with the resulting invasion of privacy would be necessary in determining whether a search was reasonable. It suggested that
"`probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling." Id. at 538.
*44 See v. City of Seattle, supra, involved the attempted inspection of a commercial warehouse by the Seattle Fire Department. The owner of the warehouse refused to permit the inspection because the inspector did not have a warrant. He was convicted of a misdemeanor as a result of this refusal and he challenged the validity of his conviction on Fourth Amendment grounds. The Court held that
"the basic component of a reasonable search under the Fourth Amendment that it not be enforced without a suitable warrant procedure is applicable in this context, as in others, to business as well as to residential premises." 387 U.S. at 546.
The Court made the following observation concerning the requisite amount of probable cause: "The agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved." Id. at 545. As in Camara, it was clear that probable cause in the criminal sense was not a constitutional requirement. In addition, the Court envisioned a distinction between inspections of residential and commercial premises. It said: "[w]e do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes...." Id. at 545-46.
The Camara and See decisions were followed by Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In both Colonnade and Biswell, the Court recognized exceptions to the warrant requirement of the Fourth Amendment. In Colonnade, agents from the Alcohol and Tobacco Tax Division of the Internal Revenue Service were refused permission to inspect Colonnade's storeroom because they did not have a warrant. The agents broke into the storeroom and seized liquor there stored. Colonnade brought suit to have the liquor returned and to have it suppressed as evidence. Although the Supreme Court ultimately decided the case in Colonnade's *45 favor, it did so on the ground that the applicable statute did not authorize forcible entries. The statute did permit the imposition of fines upon licensees, such as Colonnade, who refused to permit warrantless inspections of their premises. The Court found this to be constitutional, saying that See, supra, was inapplicable. The apparent reason for this ruling was the liquor industry's long history of "close supervision and inspection." 397 U.S. at 77.
The retail firearms industry was the subject of the Court's inquiry in United States v. Biswell, supra, Biswell, who had a federal license to deal in sporting weapons, allowed a Federal Treasury Agent to inspect his locked storeroom after the agent showed him a copy of the statute that authorized warrantless searches. In discussing Biswell's conviction, which resulted from the seizure of illegal weapons found during the search, the Supreme Court said:
"In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute." 406 U.S. at 315.
In holding that the warrantless search was reasonable, the Court relied heavily on the extensive governmental regulation of the firearms industry and the need for frequent, unannounced inspections to insure effective regulation. The Court observed:
"Federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders." Id. at 315.
"It is also apparent that if the law is to be properly enforced and inspection made effective, inspections without warrant must be deemed reasonable official conduct under the Fourth Amendment." Id. at 316.
*46 Finally, the Court noted that when a firearms dealer "chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." Id.
In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Court considered the validity of warrantless, nonconsensual administrative searches authorized by § 8 (a) of the federal Occuational Safety and Health Act (OSHA), codified as 29 U.S.C. § 657 (a).[4] Because of the marked similarity between the provisions of OSHA and its Maryland counterpart, MOSHA, see J.I. Hass Co. v. Dep't of Lic. and Reg., 275 Md. 321, 340 A.2d 255 (1975), Barlow's is of crucial importance in passing upon the constitutionality of inspection warrants issued in pursuance of §§ 2A and 35 of the Maryland Law.
In the Barlow's case, an OSHA inspector sought to inspect Barlow's business premises for possible safety hazards and violations of OSHA regulations. Barlow's president refused to permit the inspection because the inspector lacked a search warrant. The Secretary of Labor subsequently applied to a federal district court for an order compelling Barlow's to submit to the inspection. The order was issued, but Barlow's again refused to admit the inspector and sought injunctive relief against the warrantless searches allegedly permitted by OSHA. A three-judge federal panel found that the statutory *47 authorization for warrantless searches was unconstitutional and enjoined searches or inspections authorized by § 657 (a). The issue before the Supreme Court was whether warrantless, nonconsensual OSHA searches were reasonable under the Fourth Amendment. The Court began by reaffirming the principle that warrantless searches of commercial premises as well as dwellings generally are unreasonable under the Fourth Amendment, whether the purpose of the investigation is civil or criminal. It held that unless some recognized exception to the warrant requirement was applicable, a warrant was required to conduct the inspection of Barlow's premises. The Court considered but rejected the argument that OSHA searches should be excepted from the warrant requirement under the Colonnade-Biswell exceptions for closely regulated industries an argument grounded upon the relatively long history of minimum wage and maximum hours requirements imposed upon many industries by the government. The Court said: "The element that distinguishes [the liquor and firearms] enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware." 436 U.S. at 313. Entering into a business enterprise with the knowledge that wage and hour controls would be imposed and enforced could not the Court indicated be construed as consent by an employer to enforcement of the extensive OSHA regulations through warrantless searches. Nor did the Court find merit in the double-barreled argument that warrantless OSHA searches were reasonable under the Fourth Amendment because they provided the only effective means of enforcement and that a balancing of the public interest in safe working places with the minimal amount of additional protection that would be afforded industry under a warrant procedure weighed heavily in favor of the public interest. The Court said it was "unconvinced ... that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective." Id. at 316. Despite the *48 additional administrative burdens that would be caused by the warrant requirement, the Court concluded that the protection thereby afforded to an employer would be substantial. It said:
"The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed." Id. at 323.
Once it had decided that warrantless OSHA searches were not within any recognized exception to the warrant requirement of the Fourth Amendment and were therefore unreasonable, the Court discussed what showing of probable cause would be sufficient to justify the issuance of an inspection warrant. The Court reaffirmed its position in the Camara and See cases that probable cause in the criminal sense was not required:
"Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular *49 [establishment].' Camara v. Municipal Court, 387 U.S., at 538. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights. We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions." Id. at 320-21 (footnotes omitted).
The Court concluded that OSHA was unconstitutional "insofar as it purports to authorize inspections without warrant or its equivalent." Id. at 325. In a final footnote the Court remarked that the Secretary had refused to rely on the possibility that the process issued by the district court was the functional equivalent of a warrant, issued upon an appropriate showing of probable cause, and therefore reasonable under the Fourth Amendment. The Court said: "if the process obtained here, or obtained in other cases under revised regulations, would satisfy the Fourth Amendment, there would be no occasion for enjoining the inspections authorized by [§ 657 (a)]." Id. at 325 n. 23. Thus, the Barlow's case indicates that OSHA searches conducted under the authority of a warrant issued by a court pursuant to a showing of the requisite amount of probable cause would be constitutional.
That a nonconsensual warrantless search undertaken in pursuance of § 35 of MOSHA would be unconstitutional under Barlow's is clear. Section 35, however, considered in conjunction with § 2A, contemplates that where the inspector is denied entry, an administrative search warrant will be obtained. Indeed, the regulations promulgated by the Commissioner, pursuant to authority vested in him by § 31 of MOSHA, appear to require this procedure. See Comar 9.12.31.03B, which provides that upon an employer's refusal *50 to permit an inspection, the inspector "shall" terminate the inspection, determine the reason for the refusal, and report the refusal to his supervisor. The Commissioner is then required by the regulation to "promptly take appropriate action, including compulsory process, if necessary." The "compulsory process" referred to in the regulation would appear to be the warrant procedure prescribed in § 2A.[5] Thus, the regulation would seem to mandate the issuance of an administrative warrant as a prerequisite to nonconsensual administrative searches.
In view of Barlow's, it is plain that MOSHA searches conducted with a valid administrative warrant would not be unreasonable under the Fourth Amendment. Federal cases decided since Barlow's have upheld the constitutionality of § 657 (a), requiring only that nonconsensual OSHA searches be conducted pursuant to a valid warrant. See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir.1979); Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir.1978); Marshall v. Pool Offshore Co., 467 F. Supp. 978 (W.D. La. 1979); Marshall v. Weyerhaeuser Co., 456 F. Supp. 474 (D.N.J. 1978).
Whether an administrative search warrant satisfies the constitutional requirement of probable cause is, of course, another matter. As previously outlined, § 2A of Art. 89 enumerates the conditions under which the District Court is authorized to issue such a warrant; among other requirements, the application must specify the nature and scope of the proposed inspection and indicate that the warrant is sought for safety or health related purposes. Whether § 2A permits the issuance of inspection warrants not based upon probable cause is not, under Barlow's, the test of the warrant's constitutionality; rather, as stated in Barlow's, the test, followed by the federal courts, is whether *51 the warrant was in fact issued upon a proper showing of probable cause. See Rothstein, OSHA Inspections After Marshall v. Barlow's, Inc., 1979 Duke L.J. 63.
As we have indicated, Barlow's affords guidance as to the showing of probable cause which is constitutionally essential to justify the issuance of an OSHA inspection warrant, i.e., probable cause may be based "not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].'" 436 U.S. at 320. The Court explained that "[a] warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources ... would protect an employer's Fourth Amendment rights." Id. at 321. Probable cause in the criminal sense is thus not required. Nor is there a need to demonstrate the existence of probable cause to believe that there is an existing OSHA violation on the premises.[6]
The federal cases dealing with administrative probable cause usually have concerned warrant applications prompted by either the interpretation of statistical data (general schedule inspections) or specific employee complaints. Most of the decisions involving general schedule inspections have interpreted Barlow's as requiring magistrates to make two findings before issuing an administrative search warrant: (1) that a reasonable legislative or administrative inspection program exists and (2) that the proposed inspection comes within that program. In Reynolds Metals Co. v. Secretary of Labor, 442 F. Supp. 195 (W.D. Va. 1977), the court explained that the following classifications are given to OSHA inspections: imminent danger situations, fatality and catastrophe investigations, employee complaints or follow-up inspections, and general schedule inspections. An OSHA compliance officer seeking *52 to conduct a general schedule inspection provided the magistrate with a warrant application that explained in great detail how he had decided to inspect Reynolds. The affidavit revealed and explained the neutral criteria used to select Reynolds and was found sufficient in demonstrating that reasonable administrative standards had been employed in reaching the decision to inspect. The court concluded that a showing of probable cause had been made and that the warrant was properly issued. A similar result was reached in Matter of Establishment Inspection, Etc., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 133 (1979), in which the affidavit failed to explain why the particular company had been selected for a general schedule inspection but did contain references to special inspection plans designed for the foundry industry of which the company was a part. In Marshall v. Weyerhaeuser Co., 456 F. Supp. 474 (D.N.J. 1978), however, the court found that probable cause had not been established because the warrant application did not explain how the plant had been selected for a general schedule inspection from a large number of plants with a similar industrial classification. It said that information "must be presented with each warrant application to show that the administrative standards are being applied to a particular establishment in a neutral manner." Id. at 484. Accord, Matter of Urick Property, 472 F. Supp. 1193 (W.D. Pa. 1979).
Other federal cases that have dealt with administrative probable cause have reviewed warrant applications sought by inspectors who had received employee complaints of OSHA violations. In several cases the courts have found that probable cause to issue the warrant existed when the warrant application contained "specific evidence of an existing violation," Barlow's, supra, 436 U.S. at 320, i.e., the factual basis for the employee's complaint or the written complaint itself, in addition to certain representations by the inspector. See Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir.1980); Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir.1979); Marshall v. W & W Steel Co., Inc., 604 F.2d 1322 (10th Cir. *53 1979). A warrant application has been found insufficient to establish probable cause when the factual basis for the employee complaint was not made part of the application. See Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir.1979). Even with such factual allegations, however, at least one court has held that the warrant application must also demonstrate that the inspection is to be made pursuant to a reasonable legislative or administrative plan. See Marshall v. Pool Offshore Co., 467 F. Supp. 978 (W.D. La. 1979). All of these cases have stressed the need for information sufficient to allow a judicial officer to make an independent determination of probable cause, thus avoiding the possibility of acting as a "rubber stamp."
III
Upon our remand of the present case to the circuit court, the trial judge will consider the merits of Allnutt's appeal. A key issue for determination is whether, in light of Barlow's and relevant Supreme Court and Maryland cases, § 2A is unconstitutional as permitting the issuance of MOSHA inspection warrants not based upon probable cause in violation of the Fourth Amendment and Article 26 of the Maryland Declaration of Rights. If the court concludes that § 2A is facially constitutional, it will then be required to assess the averments of the application for the warrant to determine the existence of "probable cause," as that term has been defined by the cases in connection with OSHA and MOSHA type inspections of business establishments for safety or health related purposes.
Judgment of the Circuit Court for Howard County dismissing the appeal vacated; case remanded to that court for determination of the merits of the appeal; costs to be paid by the appellee.
NOTES
[1] The Division is a part of the State Department of Licensing and Regulation; the Division's head is the Commissioner of Labor and Industry.
[2] Allnutt limited its certiorari petition to questions involving the appealability of the District Court's order denying the motion to quash. Our grant of certiorari was so limited and accordingly the other issues raised by Allnutt in its brief are not properly before us. See Maryland Rule 813 a.
[3] With an exception not here pertinent, the appeal is taken to the circuit court of the county in which the judgment was entered; in Baltimore City the appeal in civil cases is to the Baltimore City Court, and in criminal cases to the Criminal Court of Baltimore. See § 12-403 of the Courts Article.
[4] Section 657 (a) provides:
"(a) In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee."
[5] Congress did not amend 29 U.S.C. § 657 (a), in response to the Barlow's decision. Changes were made, however, in the regulation dealing with objections to inspections. The relevant regulation now specifies that the compulsory process that may be obtained by the Secretary of Labor includes ex parte application for an inspection warrant. 29 C.F.R. § 1903.4 (d). OSHA does not contain any section that is comparable to Art. 89, § 2A.
[6] See Note, Administrative Searches and the Fourth Amendment: An Alternative to the Warrant Requirement, 64 Cornell L. Rev. 856 (1979); Note, Rationalizing Administrative Searches, 77 Mich. L. Rev. 1291 (1979); 8 U. Balt. L. Rev. 88 (1978).
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17 Cal.Rptr.3d 698 (2004)
121 Cal.App.4th 974
In re Kenneth Robert OGEA on Habeas Corpus.
No. G033402.
Court of Appeal, Fourth District, Division Three.
August 20, 2004.
As Modified August 26, 2004.
*700 Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, Assistant Public Defender, and Lee Blumen, Deputy Public Defender, for Petitioner Kenneth Robert Ogea.
Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Respondent State of California.
*699 OPINION
FYBEL, J.
I. INTRODUCTION
A jury convicted Kenneth Robert Ogea of one count of unlawfully possessing methamphetamine in his home while armed with a firearm (Health & Saf.Code, § 11370.1, subd. (a)). By petition for writ of habeas corpus, Ogea challenges the trial court's order denying his request for probation and treatment under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen.Code, §§ 1210, 1210.1, 3063.1), and for release on his own recognizance.
Ogea's writ petition presents an issue of first impression: Whether his conviction under Health and Safety Code section 11370.1, subdivision (a) for possession of a controlled substance while armed with a loaded, operable firearm constituted a "nonviolent drug possession offense," as defined in Penal Code section 1210, subdivision (a).
Based upon the language and intent of Proposition 36 and of Health and Safety Code section 11370.1, we hold the term "nonviolent drug possession offense," as defined in Penal Code section 1210, subdivision (a), does not include a violation of Health and Safety Code section 11370.1. We therefore conclude Ogea was not convicted of a nonviolent drug possession offense making him eligible for probation conditioned on participation in and completion of a drug treatment program under Proposition 36. Accordingly, we deny the petition.
The analytical framework and reasoning of the unanimous decision of our Supreme Court in People v. Canty (2004) 32 Cal.4th 1266, 14 Cal.Rptr.3d 1, 90 P.3d 1168 are particularly instructive. We invited the parties to address this recent opinion filed after oral argument in our case. They each submitted excellent letter briefs. The district attorney argues the People v. Canty decision "supports the People's position in our case and further illustrates why defendant is ineligible for treatment under Proposition 36." The public defender contends the decision "bolsters petitioner's argument that Health and Safety Code section 11370.1, subdivision (a) . . . is a nonviolent drug offense within the purview of Proposition 36." (Fn.omitted.) The public defender recognizes that "[a]lthough the issue presented in Canty is not the same as ourswhich is to determine whether section 11370.1[, subdivision] (a) comes with[in] the purview of Proposition 36's definition of a nonviolent drug possession offenseCanty provides considerable guidance in making that determination."
II. ANALYSIS
A. Proposition 36 and Health and Safety Code Section 11370.1
In November 2000, California voters enacted Proposition 36, the Substance Abuse *701 and Crime Prevention Act of 2000, codified at Penal Code sections 1210, 1210.1, and 3063.1. "Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance." (People v. Canty, supra, 32 Cal.4th 1266, 1275, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)
The cornerstone of Proposition 36 is Penal Code section 1210.1, subdivision (a) which provides, in relevant part: "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." (See People v. Floyd (2003) 31 Cal.4th 179, 183, 1 Cal.Rptr.3d 885, 72 P.3d 820; People v. Sharp (2003) 112 Cal.App.4th 1336, 1339, 5 Cal.Rptr.3d 771; People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 81, 119 Cal.Rptr.2d 465.)
Health and Safety Code sections 11370 and 11370.1 make it a felony to possess certain controlled substances "while armed with a loaded, operable firearm." (Health & Saf.Code § 11370.1, subd. (a).) "Section 11370.1 created a new felony for unlawfully possessing certain quantities of controlled substances while in the immediate personal possession of a loaded, operable firearm." (People v. Peña (1999) 74 Cal.App.4th 1078, 1082, 88 Cal.Rptr.2d 656.) "The legislative intent behind section 11370.1 was to address a deficiency in California law which did not specifically make it a public offense for a person to possess or be under the influence of a small amount of a controlled substance while in the immediate possession of a firearm." (People v. Edwards (1991) 235 Cal.App.3d 1700, 1706-1707, 1 Cal.Rptr.2d 631.)
B. Applicable Principles of Statutory Construction
The issue presented requires us to construe Proposition 36 and Health and Safety Code section 11370.1. "`"Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.]"'" (People v. Canty, supra, 32 Cal.4th at p. 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute." (Ibid.)
We first examine the language of the statute enacted, giving the words their usual, ordinary meaning. (People v. Canty, supra, 32 Cal.4th at p. 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters). [Citations.]" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)
The language is construed in the context of the statute as a whole and the overall statutory scheme, so that we give "`significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.'" (People v. Canty, supra, 32 Cal.4th at p. 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) "Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be *702 read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation]." (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)
If a statute is ambiguous, then, in addition to the statutory language, we may consider evidence of the voters' or the Legislature's intent, and may examine the history and background of the statute, in order to ascertain the most reasonable interpretation. (People v. Canty, supra, 32 Cal.4th at p. 1277, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)
C. "Nonviolent Drug Possession Offense" Under Proposition 36 Does Not Include a Violation of Health and Safety Code Section 11370.1.
Penal Code section 1210.1, subdivision (a) provides that any person convicted of a "nonviolent drug possession offense" shall receive probation conditioned on participation in and completion of a drug treatment program instead of incarceration. A "nonviolent drug possession offense" is defined in Penal Code section 1210, subdivision (a), which states: "The term `nonviolent drug possession offense' means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code,[[1]] or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term `nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8."[2]
Ogea contends that a nonviolent drug possession offense in Proposition 36 is limited to simple possession, simple use, or simple transportation. Although Proposition 36 is said to apply "only to those convicted of simple drug possession" (People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222, 1226, 119 Cal.Rptr.2d 170), Penal Code section 1210.1, subdivision (a) itself does not use that phrase.[3]*703 Rather, Penal Code section 1210.1, subdivision (a) uses the term "nonviolent drug possession offense," which is defined in Penal Code section 1210, subdivision (a). We construe the statutory definition because, "[i]f the Legislature has provided an express definition of a term, that definition ordinarily is binding on the courts." (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166.)
1. Analysis of Statutory Language
The first sentence of Penal Code section 1210, subdivision (a) states a nonviolent drug possession offense "means" the unlawful personal use, possession for personal use, or transportation for personal use of the identified controlled substances. (Italics added.) We give words their ordinary meaning (People v. Birkett (1999) 21 Cal.4th 226, 231, 87 Cal.Rptr.2d 205, 980 P.2d 912), and ordinarily the word "means" conveys definition or denotes significance. (Webster's 3d New Internat. Dict. (1993) p. 1398.) The choice of the word "means" suggests the voters intended to define the offenses qualifying for Proposition 36 treatment only as the offenses of unlawful personal use, possession for personal use, or transportation for personal use of the identified controlled substancesand nothing else.
Ogea was not convicted of "unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance." He was convicted of violating Health and Safety Code section 11370.1. Health and Safety Code section 11370.1 was not drafted as an enhancement to Health and Safety Code section 11377, subdivision (a) (misdemeanor possession of controlled substances). Health and Safety Code section 11370.1 "created a new felony," a conviction for which requires proof not only of possession of a controlled substance, but also proof the defendant was armed with a loaded, operable firearm while in possession of the controlled substance. (People v. Peña, supra, 74 Cal.App.4th at p. 1082, 88 Cal.Rptr.2d 656; People v. Edwards, supra, 235 Cal.App.3d at pp. 1705-1707, 1 Cal. Rptr.2d 631.) A violation of Health and Safety Code section 11370.1 requires more than possession or use of a controlled substance, and therefore does not come within the meaning of nonviolent drug possession offense.
The second sentence of Penal Code section 1210, subdivision (a) states "[t]he term `nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance." (Italics added.) A violation of Health and Safety Code section 11370.1 is not among these definitional exclusions. We disagree with Ogea's contention that the second sentence of Penal Code section 1210, subdivision (a) comprehensively defines all drug-related offenses not encompassed by Proposition 36.
In People v. Canty, supra, 32 Cal.4th 1266, 14 Cal.Rptr.3d 1, 90 P.3d 1168, the Supreme Court held a defendant, who was convicted of transporting a controlled substance (a felony), together with driving under the influence of a controlled substance (a misdemeanor), was not eligible for Proposition 36 treatment. Under Penal Code section 1210.1, subdivision (b)(2), a defendant is ineligible for Proposition 36 treatment if the defendant has been "convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." An offense is defined as "not related to the use of drugs" if it does not involve the defendant's "simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or . . . any activity similar to those listed in *704 paragraph (1)." (Pen.Code, § 1210, subd. (d).)
The Supreme Court construed the language of Penal Code section 1210, subdivision (d) and concluded the misdemeanor of driving a vehicle while under the influence of a controlled substance is not "an activity similar to those misdemeanors involving the simple possession, use, or presence at the use of drugs, or the failure to register one's status as a drug offender." (People v. Canty, supra, 32 Cal.4th at pp. 1279-1280, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) The Supreme Court's analysis of the statutory language fell into three parts. First, driving while under the influence involves a greater impairment of an individual's faculties and therefore is not similar to merely being under the influence of a controlled substance. (Id. at pp. 1278-1279, 14 Cal. Rptr.3d 1, 90 P.3d 1168.) Second, "the conduct that is the central focus of each statute is not similar." (Id. at p. 1279, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) The focus of the drug-related misdemeanors identified in Penal Code section 1210, subdivision (d)(1) is "private involvement with the proscribed substance," and the focus of the misdemeanor for driving while under the influence is "not with the offender's use of the proscribed substance, but with his or her use of a motor vehicle." (People v. Canty, supra, at p. 1279, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) Third, "the interest that society seeks to protect by criminalizing each activity is not identical." (Ibid.) "In proscribing `being under the influence,' the statute's legislative purpose primarily is to protect the user from the consequencessuch as addiction to the substance usedof his or her own conduct," while "[i]n proscribing driving while under the influence, the statute's legislative purpose is to protect the public and guard against the threat of injury to others." (Ibid.)
People v. Canty construed subdivision (d)(1) rather than subdivision (a) of Penal Code section 1210, and considered the crime of driving while under the influence of a controlled substance, which is not the same crime as possession of a controlled substance while armed. The analysis and reasoning of People v. Canty supports the conclusion a violation of Health and Safety Code section 11370.1 is not a "nonviolent drug possession offense," as defined in Penal Code section 1210, subdivision (a). The focus or gravamen of a violation of Health and Safety Code section 11370.1 is not, as Ogea contends, possession of a controlled substance. The focus of Health and Safety Code section 11370.1 is the combination of possession of a controlled substance and possession of a loaded, operable firearm. Health and Safety Code section 11370.1 created "a new felony." (People v. Peña, supra, 74 Cal.App.4th at p. 1082, 88 Cal.Rptr.2d 656.) "`The legislators' intent was clearly to punish a distinct category of offenders: those who possess very small amounts of controlled substances while in the "immediate personal possession of a loaded, operable firearm."'" (People v. Edwards, supra, 235 Cal.App.3d at p. 1708, 1 Cal.Rptr.2d 631, italics added.)
Health and Safety Code section 11370.1 was not intended to protect the user from the consequences of his or her own conduct, but to protect the public and law enforcement officers and "`"stop the growing menace from a very deadly combination-illegal drugs and firearms."'" (People v. Peña, supra, 74 Cal.App.4th at p. 1082, 88 Cal.Rptr.2d 656.) Proponents of the legislation creating section 11370.1 "noted that armed controlled substance abusers posed a threat to the public and to peace officers." (People v. Peña, supra, at p. 1082, 88 Cal.Rptr.2d 656.) The Legislature viewed possession of a controlled substance *705 while in the immediate area of a firearm to be a serious enough threat to public safety to deny the offender eligibility for diversion to a drug program under Penal Code section 1000. (Health & Saf. Code, § 11370.1, subd. (b).)
We conclude, based on the statutory language, that "nonviolent drug possession offense" as used and defined in Proposition 36 does not include a conviction under Health and Safety Code section 11370.1 because it is not "unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance" (Pen.Code, § 1210, subd. (a)).
2. Analysis of Indicia of the Voters' and the Legislature's Intent
Subdivision (b) of Penal Code section 1210.1 identifies situations to which subdivision (a) of that section "does not apply." Under section 1210.1, subdivision (b)(3)(A), subdivision (a) does not apply to "[a]ny defendant who: [¶] . . . [w]hile using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-rolled cigarette, containing phencyclidine." (Italics added.) Using a firearm, Ogea emphasizes, is different from being armed with a firearm. Ogea argues that because possession of a controlled substance while armed is not listed in subdivision (b) of Penal Code section 1210.1, possession while armed must be included within the definition of nonviolent drug possession offense under subdivision (a) of Penal Code section 1210.
The district attorney urges us to blur the distinction between "using" a firearm and being "armed" with a firearm for purposes of interpreting subdivision (b) of Penal Code section 1210.[4] We need not go so far. At best, Ogea's analysis of Penal Code section 1210.1, subdivision (b) raises an ambiguity in Proposition 36. We can resolve that ambiguity by reference to "`other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.'" (People v. Canty, supra, 32 Cal.4th at p. 1281, 14 Cal.Rptr.3d 1, 90 P.3d 1168; see also Legislature v. Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14, 194 Cal.Rptr. 781, 669 P.2d 17.) "The intent of the law prevails over the letter of the law, and `"the letter will, if possible, be so read as to conform to the spirit of the act." [Citation.]'" (People v. Canty, supra, 32 Cal.4th at pp. 1276-1277, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)
The argument in favor of Proposition 36 on the ballot pamphlet stated: "Proposition 36 is strictly limited. It only affects those guilty of simple drug *706 possession. . . . [¶] . . . [¶] . . . No other criminal laws are changed."[5] (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26; see People v. Canty, supra, 32 Cal.4th at p. 1281, 14 Cal.Rptr.3d 1, 90 P.3d 1168; People v. Superior Court (Henkel), supra, 98 Cal. App.4th at p. 83, 119 Cal.Rptr.2d 465.) In People v. Canty, supra, 32 Cal.4th at page 1282, 14 Cal.Rptr.3d 1, 90 P.3d 1168, the Supreme Court explained the significance of these phrases: "In view of the express advice given the voters that Proposition 36 was strictly limited affecting `only simple drug possession,' and changing `[n]o other criminal laws' [citation] we must assume that the voters did not intend to amend other criminal statutes."
Relying upon the ballot pamphlet's expression of the voters' intent, the court in People v. Canty, supra, 32 Cal.4th at page 1282, 14 Cal.Rptr.3d 1, 90 P.3d 1168, concluded that extending Proposition 36 eligibility to those convicted of driving under the influence of a controlled substance would effectively amend the Vehicle Code's scheme imposing an increasingly harsh punishment for each new violation of driving while under the influence. Under Proposition 36, the court must expunge the defendant's conviction for the nonviolent drug possession offense if the court finds the defendant has completed an appropriate drug treatment program. (People v. Canty, supra, at p. 1282, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) The defendant's next conviction of misdemeanor driving while under the influence of drugs would be treated as a first offense. (Ibid.) "That result would be contrary to the evident intent of the Vehicle Code which clearly is to increase, with each new violation, the punishment for driving while under the influence of drugs" and "would be inconsistent with the design of the relevant Vehicle Code provisions to punish impaired drivers identically, whether they drive while under the influence of alcohol or drugs." (Id. at pp. 1282-1283, 14 Cal.Rptr.3d 1, 90 P.3d 1168, fn. omitted.)
Similarly here, "[i]n view of the express advice given the voters that Proposition 36 was strictly limited" and would change "`[n]o other criminal laws,'" we must assume the voters did not intend to amend Health and Safety Code section 11370.1. (People v. Canty, supra, 32 Cal.4th at p. 1282, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) But construing the term "nonviolent drug possession offense" in Proposition 36 to include violations of Health and Safety Code section 11370.1 effectively would do just that.
The deferred entry of judgment statutes, Penal Code section 1000 et seq., "are in some ways analogous to Proposition 36." (People v. Canty, supra, 32 Cal.4th at p. 1285, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) Under Penal Code section 1000, as under Proposition 36, a defendant charged with specified drug offenses may undergo a drug education and treatment program in lieu of undergoing a criminal prosecution; upon satisfactory completion of treatment the defendant may obtain dismissal of the criminal charges. (People v. Canty, supra, at p. 1285, 14 Cal.Rptr.3d 1, 90 P.3d 1168; see Pen.Code, §§ 1000, subd. (a) & (c), 1000.1, subd. (a).)
*707 Health and Safety Code section 11370.1, subdivision (b) states: "Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment under . . . Section 1000 . . . of the Penal Code." The Legislature enacted Health and Safety Code section 11370.1 in response to cases construing the deferral of entry of judgment statutes as permitting diversion to a drug treatment program unless the drug offense played some part in the commission of a violent crime or a firearm was an instrumentality of the offense. (People v. Edwards, supra, 235 Cal.App.3d at p. 1708, 1 Cal.Rptr.2d 631.) "The Legislature could reasonably conclude that the prosecutor should not be required to convince a trial court that the loaded, operable weapon possessed by the user or possessor of a small amount of drugs was an `instrument' in the commission of the drug offense, or that the drug offense was `involved with' a crime of violence in order to justify a refusal to divert the offender." (Id. at pp. 1708-1709, 1 Cal.Rptr.2d 631.) The Legislature determined those in possession of a controlled substance while armed with a loaded, operable firearm pose a serious threat to society and to law enforcement and, in subdivision (b) of Health and Safety Code section 11370.1, expressly denied them the benefits of Penal Code section 1000 et seq.
Granting the benefits of Proposition 36 to those convicted of violating Health and Safety Code section 11370.1 would defeat the Legislature's purpose for enacting that statute, would amend Health and Safety Code section 11370.1 by nullifying subdivision (b), and would contradict assurances given the voters that Proposition 36 would be strictly limited and would change no other criminal law. Accordingly, we resolve any ambiguity in Proposition 36 by construing the term "nonviolent drug possession offense" under Penal Code section 1210, subdivision (a) to exclude violations of Health and Safety Code section 11370.1.
D. The Rule of Lenity
Finally, we consider the traditional rule of lenity, under which language in a penal statute is construed in the manner more favorably to the defendant if the language truly is susceptible of more than one reasonable interpretation. (People v. Canty, supra, 32 Cal.4th at p. 1277, 14 Cal.Rptr.3d 1, 90 P.3d 1168; People v. Avery (2002) 27 Cal.4th 49, 57-58, 115 Cal.Rptr.2d 403, 38 P.3d 1.) "`The rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.' [Citation.] . . . `The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable.' [¶] Thus, although true ambiguities are resolved in a defendant's favor, an appellate court should not strain to interpret a penal statute in defendant's favor if it can fairly discern a contrary legislative intent." (People v. Avery, supra, 27 Cal.4th at p. 58, 115 Cal.Rptr.2d 403, 38 P.3d 1.)
The rule of lenity does not aid Ogea. We need not guess at the voters' intent in enacting Proposition 36. We know the voters' intent and, as explained above, it resolves any ambiguity raised by Ogea's construction of Proposition 36. In light of the statutory language of Proposition 36 and Health and Safety Code section 11370.1, as well as the voters' and the Legislature's intent, Ogea's construction of Proposition 36 is not "`in relative equipoise'" to ours.
*708 DISPOSITION
The petition for writ of habeas corpus is denied. This court's previously issued stay order is dissolved.
WE CONCUR: O'LEARY, Acting P.J., and MOORE, J.
NOTES
[1] Health and Safety Code sections 11054 through 11058 list five schedules of controlled substances, including opiates, stimulants, depressants, hallucinogenics, and narcotics.
[2] At the time of Ogea's offense, Penal Code section 1210, subdivision (a) defined "nonviolent drug possession offense" as "the unlawful possession, use, or transportation for personal use of any controlled substance. . . ." (Former Pen.Code, § 1210, subd. (a), amended by Stats.2001, ch. 721, § 2.) In 2003, the Legislature amended section 1210, subdivision (a) to its present form to clarify "nonviolent drug possession offense" means "unlawful personal use" or "possession for personal use" of any controlled substance. (Italics added.) Our analysis is equally applicable to the former section 1210, subdivision (a).
[3] The phrase "simple possession or use of drugs" is used in subdivision (d) of Penal Code section 1210 in defining "misdemeanor not related to the use of drugs." (Pen.Code, § 1210, subd. (d) ["[t]he term `misdemeanor not related to the use of drugs' means a misdemeanor that does not involve . . . the simple possession or use of drugs or drug paraphernalia"].)
Penal Code section 1210 does not define "simple possession or use of drugs." In fact, despite the prevalent use of "simple possession or use of drugs" throughout the law and literature on Proposition 36 (e.g., People v. Glasper (2003) 113 Cal.App.4th 1104, 7 Cal. Rptr.3d 4) and its common use in criminal law, we have found no case defining that phrase. Seeking a definition of the phrase "simple possession or use of drugs" is unnecessary here because the issue presented is whether a violation of Health and Safety Code section 11370.1 is a nonviolent drug possession offense as defined in Penal Code section 1210, subdivision (a).
[4] Various provisions of the Penal Code do recognize this difference. For example, Penal Code section 12022, subdivision (a)(1) provides, "any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . for one year." In contrast, Penal Code section 12022.5, subdivision (a) provides that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . for 3, 4, or 10 years." The choice of words is significant: "`By employing the term "uses" instead of "while armed" the Legislature requires something more than merely being armed.'" (People v. Bland (1995) 10 Cal.4th 991, 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.) In light of this well-established distinction, we disagree with the district attorney's contention the term "using a firearm" under subdivision (b)(3)(A) of Penal Code section 1210.1 must be construed as encompassing being "armed" within the meaning of Health and Safety Code section 11370.1, subdivision (a).
[5] The district attorney has requested us to take judicial notice of the portion of the Official Voter Information Guide prepared for the November 7, 2000 election pertaining to Proposition 36. We grant the request. (People v. Canty, supra, 32 Cal.4th at p. 1281, fn. 4, 14 Cal.Rptr.3d 1, 90 P.3d 1168; In re Varnell (2003) 30 Cal.4th 1132, 1144, fn. 7, 135 Cal.Rptr.2d 619, 70 P.3d 1037.)
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167 Cal.App.4th 705 (2008)
MANUFACTURED HOME COMMUNITIES, INC., et al., Plaintiffs and Appellants,
v.
COUNTY OF SAN LUIS OBISPO et al., Defendants and Respondents.
No. B196426.
Court of Appeals of California, Second District, Division Six.
October 15, 2008.
*708 Robie & Matthai, Edith R. Matthai and Steven S. Fleischman for Plaintiffs and Appellants.
Hart, King & Coldren, Robert S. Coldren, C. William Dahlin and Rhonda H. Mehlman for Western Manufactured Housing Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
R. Wyatt Cash, County Counsel, and Timothy McNulty, Deputy County Counsel; Endeman, Lincoln, Turek & Heater, Henry E. Heater and Linda B. Reich for Defendants and Respondents.
OPINION
GILBERT, P.J.
The Constitution protects everyone, the poor, the wealthy, the weak, the powerful, the guilty and the innocent. This court has held its guarantees extend to lawyers (Cunningham v. Superior Court (1986) 177 Cal.App.3d 336 [222 Cal.Rptr. 854]); dogs (more precisely their owners) (Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372 [228 Cal.Rptr. 101]); and even politicians (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944 [52 Cal.Rptr.2d 357]). Here we add to our listmobilehome park owners.
Plaintiffs Manufactured Home Communities, Inc., and MHC Operating Limited Partnership (MHC) appeal a judgment denying their petition for writ of administrative mandamus against defendants County of San Luis Obispo (County), the County Board of Supervisors (Supervisors), and the County of San Luis Obispo Mobilehome Rent Review Board (Board). MHC claims that the Board's decision improperly prevented it from increasing the rent from its mobilehome park tenants.
(1) We conclude, among other things, the proceeding violated standards of due process because the Board's findings rested on testimony of tenants who were not subject to cross-examination. We also conclude that the tenant leases are facially valid. We reverse and remand so that the Board may decide, among other things, whether equitable estoppel applies.
FACTS
MHC owns a mobilehome park. It served nine tenants with a notice to increase their rents. The tenants petitioned the Board, claiming that the increases violated the County's mobilehome rent control ordinance. The *709 ordinance exempts from rent control tenancies covered by leases or contracts that provide for more than a month-to-month tenancy. (San Luis Obispo County Code, § 25.03.010(e).)
The tenants signed a lease agreement that provides that (1) the "term of th[e] Agreement shall be for a period of twelve months," (2) the "Resident shall pay rent in the amount of $___ per month on the first day of each month," and (3) the "Park may increase rents at any time upon 90 days' notice and as allowed by state and local laws." (Agreement, pars. 7-9.)
At the Board hearing, MHC claimed it was exempt from rent control. Several tenants testified. Richard Danisi said MHC's manager told him "the rent was covered under a county rent control ordinance and . . . would be adjusted yearly . . . ." He believed he was protected from a rent increase. Danisi said MHC engaged in "a fraudulent misrepresentation" and "mob-like corporate bullying tactics."
MHC's attorney asked to cross-examine Danisi. The tenants' counsel objected. He said, "My witnesses are not prepared for cross-examination of any type . . . . [T]here is absolutely no entitlement in this ordinance to such cross-examination." The Board ruled that the tenants could not be cross-examined. Boardmember Dick Frank said, "[W]e always allow the people to speak without fear of cross-examination, because it is a fearful thing."
Ann Meyer testified she was "shell-shocked" when she received the rent increase. MHC's manager told her the lease was subject to rent control. He said she could expect a Consumer Price Index (CPI) increase of $8 a month when the lease expired.
Jim Johnson said MHC discussed no options other than a 12-month lease. They told him the rent would be increased for only two reasons: (1) a 10 percent increase if they re-rented the mobilehome, or (2) an increase of 60 percent of the CPI on "the anniversary of the rental contract."
Bill Spurrier, a 77-year-old retired tenant on a fixed income, said the prior park owner told him that because his 10-year lease expired, "we would be covered under county rent control . . . ." MHC made the same representation and engaged in a "deception." It "never disclosed to us that they were going to raise the rents above what was agreed upon . . . ."
Margaret Meyer said that the MHC manager told her she had to sign a 12-month lease or remain a month-to-month tenant. He said a month-to-month tenancy "would still be covered by rent control." She believed this *710 meant a 12-month lease was better and the manager agreed. When she received her rent increase notice, the manager was surprised "because he had not . . . anticipated this."
Wilma Hembee, a visually impaired tenant, said MHC gave her the signature page of the lease to sign. She never received the other portions and she believed rent control applied.
The Board found that the tenants "and the former park owner began a practice of entering into successive annual agreements each styled as a `Standard 12 Month Rental Agreement.'" It said, "Although such an agreement might exempt a tenancy from . . . rent [control,] the prior park owner and the tenants . . . treated the tenancies as if they were subject to" the ordinance. It found MHC continued this practice, did not explain the leases, misrepresented the terms; the tenants rescinded the leases which became month-to-month tenancies subject to rent control; and the proposed rent increases were invalid.
MHC appealed to the Supervisors claiming, among other things, that "there was no opportunity to cross-examine any of the witnesses." The Supervisors adopted the Board's decision.
MHC filed a petition for writ of administrative mandamus alleging, among other things, that they were denied a fair trial because the Board "refused to allow MHC to cross-examine any of the witnesses against it." The court denied MHC's petition. It found the 12-month leases did not comply with Civil Code section 798.15, subdivision (a), were fatally uncertain, illusory, invalid, and not exempt from rent control. It rejected MHC's constitutional challenges to the rent control ordinance.
DISCUSSION
I
Relying on Testimony of Witnesses Not Subject to Cross-examination
The parties raise numerous contentions. But the overriding issue involves the Board's authority to render a constitutionally adequate decision. MHC contends the Board erred (1) by permitting the tenants to testify without being subject to cross-examination; and (2) by making findings against it based on that testimony. It claims this made the administrative process fundamentally unfair. We agree.
*711 (2) Where the fairness of an administrative hearing is challenged, we independently review the proceedings to decide whether a party's rights were compromised. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1140 [19 Cal.Rptr.3d 371].) "`The right to cross-examine witnesses in quasi-judicial administrative proceedings is considered as fundamental an element of due process as it is in court trials.' [Citations.]" (McLeod v. Board of Pension Commissioners (1970) 14 Cal.App.3d 23, 28 [94 Cal.Rptr. 58].)
(3) The County claims the Board properly ruled that MHC had no right to cross-examine the tenants in a rent control proceeding. It relies on our decision in Stardust Mobile Estates, LLC v. City of San Buenaventura (2007) 147 Cal.App.4th 1170 [55 Cal.Rptr.3d 218]. But Stardust distinguishes between cases where cross-examination was essential and those where it was not. "Unlike cases that turn upon the testimony of live witnesses, cases involving documentary evidence do not carry a critical need to inquire into credibility via cross-examination." (Id. at p. 1189, italics added.)
But in "almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." (Goldberg v. Kelly (1970) 397 U.S. 254, 269 [25 L.Ed.2d 287, 90 S.Ct. 1011].) The right to cross-examine applies in a wide variety of administrative proceedings. (Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1330 [91 Cal.Rptr.2d 171] [disciplinary hearings]; Davis v. Mansfield Metropolitan Housing Authority (6th Cir. 1984) 751 F.2d 180, 185 [housing authority]; Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769 [190 Cal.Rptr. 919, 661 P.2d 1073] [welfare]; Pence v. Industrial Acc. Com. (1965) 63 Cal.2d 48, 50-51 [45 Cal.Rptr. 12, 403 P.2d 140] [industrial accident]; Desert Turf Club v. Board of Supervisors (1956) 141 Cal.App.2d 446, 455 [296 P.2d 882] [use permit].) It is especially important where findings against a party are based on an adverse witness's testimony. (Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 971 [200 Cal.Rptr. 762]; Palmer v. Rent Control Board of Brookline (1979) 7 Mass.App.Ct. 110 [386 N.E.2d 1047, 1050] [rent control board erred by not allowing landlord to cross-examine investigator who provided report to the board].)
Here cross-examination was essential. The Board made several findings against MHC based on the tenants' testimony. It found that (1) the tenants treated the tenancies as if they were subject to rent control; (2) MHC induced them to sign; (3) the tenants would not have signed if they had understood the consequences; (4) the terms were not explained to them; (5) there were no negotiations; (6) the tenants were misled; (7) MHC's "misrepresentations were received by senior citizen tenants who had become accustomed to entering into the standard 12 Month Agreement while continuing to receive *712 the rent control benefits"; (8) each lease "has been voided by the tenants who entered into it"; and (9) MHC's pattern and practice of misrepresenting the lease terms was shown by "all the testimony."
The Board found the tenants' testimony to be credible and "never rebutted." But it did not allow MHC to test their veracity or rebut them through cross-examination. The tenants had an unfair advantage. They could select the facts they wanted the Board to hear, and avoid questions concerning those facts. The tenants also gave narrative statements, and one read from a prepared text.
There are valid reasons for restricting cross-examination in some administrative proceedings. But this was not a quasi-legislative hearing or an informal public hearing where speakers are not sworn and cross-examination could inhibit public comment. (Cf. E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 323 [65 Cal.Rptr.2d 325]; Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 586 [71 Cal.Rptr. 739].)
This was an adversarial hearing where the tenants requested the Board to make findings against MHC. The rent control ordinance requires findings and testimony under oath, and the board exercised "judicial-like" powers in deciding the parties' rights involving their individual leases. (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 372, 385 [261 Cal.Rptr. 318, 777 P.2d 91].) Where it makes a decision based on a party's testimony, the adversary is entitled to question his or her opponent. (515 Associates v. City of Newark (D.N.J. 1977) 424 F.Supp. 984, 995, fn. 20; see also Goldberg v. Kelly, supra, 397 U.S. at pp. 269-270; Palmer v. Rent Control Board of Brookline, supra, 386 N.E.2d at p. 1050; Rivera v. Division of Industrial Welfare, supra, 265 Cal.App.2d at p. 586.)
Moreover, the reasons given for precluding cross-examination were unpersuasive. The tenants' objection that they were unprepared for cross-examination raised questions about their direct testimony. Frank's view that cross-examination should be denied because it "is a fearful thing" shields parties who may have something to hide and impedes factfinding. Cross-examination is the "`"greatest legal engine ever invented for the discovery of truth"' [citations]." (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733 [95 Cal.Rptr.2d 620].) Each tenant's testimony involved individual circumstances and the accusations were serious. The tenants claimed MHC engaged in fraud and mob-like tactics and deceived the elderly. The Board undermined the fairness of the proceeding by preventing MHC from questioning its adversaries and then making findings against it based on that testimony. (Goldberg v. Kelly, supra, 397 U.S. at p. 270.)
*713 II
Substantial Evidence
(4) The County contends we must affirm because the Board's findings are supported by substantial evidence. But "[a]s the cross-examination was erroneously excluded, we are unable to say how . . . the [Board] would have regarded the facts in evidence in light of further facts which might have been elicited." (Powhatan Mining Co. v. Ickes (6th Cir. 1941) 118 F.2d 105, 109.) That evidence supports the findings does not cure the constitutional defect. (Ibid.; see also Pence v. Industrial Acc. Com., supra, 63 Cal.2d at pp. 50-52.) "An improper denial of the right of cross-examination constitutes a denial of due process [citations]." (Priestly v. Superior Court (1958) 50 Cal.2d 812, 822 [330 P.2d 39].) The error is prejudicial. (Fremont Indemnity Co. v. Workers' Comp. Appeals Bd., supra, 153 Cal.App.3d at p. 971.) A new hearing is required. (Sinaiko v. Superior Court, supra, 122 Cal.App.4th at pp. 1142, 1146; Pence, supra, at pp. 50-52.)
III
Interpreting the Leases
The County claims we may affirm by deciding the facial validity of the leases without considering evidence about the parties' intent. It notes that the trial court found the leases were facially invalid. The court said Civil Code section 798.15, subdivision (a), provides that "[t]he rental agreement shall be in writing and shall contain . . . [t]he term of the tenancy and the rent therefor." It ruled that because paragraph 9 of the lease allows MHC to increase rents with a 90-day notice, it "is conditional, because it is subject to [MHC's] unilateral right to increase rent at any time."
(5) The trial court interpreted paragraph 9 to be a device to override local rent control provisions by giving the park an unrestricted power to raise rents. It concluded that the written lease was therefore invalid and the tenancy was consequently subject to the rent control ordinance. But the court's interpretation of the lease was unduly restrictive and incomplete. We must interpret the lease "as a whole, with the various individual provisions interpreted together so as to give effect to all, if reasonably possible or practicable. [Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473 [80 Cal.Rptr.2d 329].) We should not interpret it in a way "which renders some clauses nugatory, inoperative or meaningless. [Citations.]" (Ibid.)
Paragraph 9 of the lease provides that the "[p]ark may increase rents at any time upon 90 days' notice," but it goes on to state "and as allowed by state *714 and local laws." This last phrase indicates that the provisions of state laws, and applicable local rent control provisions, are incorporated into the lease. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 105 [99 Cal.Rptr.2d 745, 6 P.3d 669]; City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 16 [88 Cal.Rptr.2d 863] [parties impliedly incorporate the provisions of applicable statutes into their contractual agreements].) The right to increase rents therefore is not unrestricted because it is necessarily subject to these laws.
(6) Moreover, these leases are not facially invalid. Consistent with Civil Code section 798.15, each lease sets forth the specific term of tenancy and the rent. The trial court ruled that because the rental amount could change during the term of the tenancy, the lease was facially invalid. It assumed from its narrow reading of paragraph 9 that the lease could not be valid without a clause stating that the rent will never change regardless of circumstances. But rental increases during the term of the tenancy have been approved for mobilehome park owners who have shown good cause and have given proper advance notice. (Civ. Code, § 798.30; Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 708 [42 Cal.Rptr.2d 723]; Carson Mobilehome Park Owners' Assn. v. City of Carson (1983) 35 Cal.3d 184, 194 [197 Cal.Rptr. 284, 672 P.2d 1297].)
The County claims the leases are nothing more than month-to-month tenancies and therefore subject to the rent control ordinance. But that is not the case. Each lease is for a 12-month term. Because the rent control ordinance does not apply to leases "which provide for more than a month-to-month tenancy" (San Luis Obispo County Code, § 25.03.010), these leases are exempt from the rent control ordinance. Our conclusion that they are exempt, however, does not end the inquiry.
(7) The tenants claimed their testimony, not the leases, described the true nature of the tenancies. They said the parties had orally agreed that their tenancies were subject to the rent control ordinance. That is a critical factual issue. "`The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.' [Citations.] [This] is determined by . . . the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.] [¶] Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning . . . . [Citations.]" (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 [75 Cal.Rptr.2d 573].) Here several tenants claimed oral representations led them to believe their tenancies were subject to rent control. If that is the *715 case, documents alone will not disclose the parties' intent. (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 424 [264 Cal.Rptr. 779]; Goodman v. Jonas (1956) 142 Cal.App.2d 775, 791-792 [299 P.2d 424].)
The Board admitted evidence to explain what the parties intended and found that the leases were augmented by oral representations. (Civ. Code, §§ 1647, 1648; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 525 [117 Cal.Rptr.2d 220, 41 P.3d 46].) It correctly determined that testimony was needed. (Morey v. Vannucci, supra, 64 Cal.App.4th at p. 912.) It noted that the lease language "might exempt" it from the ordinance, but that testimony could reveal a different result. But the Board improperly restricted the testimony. After a hearing on remand, the Board could find that the tenants were misled, or that the park is estopped from claiming it is exempt from rent control. (Ibid.; Lentz v. McMahon (1989) 49 Cal.3d 393, 405-406 [261 Cal.Rptr. 310, 777 P.2d 83].) But such findings must be based on substantial evidence and on testimony subject to cross-examination.
IV
The Court's Findings on Issues the Board Did Not Reach
(8) MHC contends the trial court erred by making findings on issues the Board did not consider. The court found the leases were invalid because they were illusory and uncertain. MHC notes these issues were not raised at the administrative hearing. We agree. Court review "is limited to issues in the record at the administrative level." (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019 [162 Cal.Rptr. 224].) The agency should have the first opportunity to decide the issues. (Ibid.; see also Sinaiko v. Superior Court, supra, 122 Cal.App.4th at p. 1142; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1140-1142 [124 Cal.Rptr.2d 857].)
(9) Here the Board did not rule on these issues. It found the tenants rescinded the leases. But the tenants did not testify on the elements of rescission. The Board placed a two-minute limit on testimony which unduly restricted the evidentiary presentation. This led to a speedy hearing, but "administrative efficiency at the expense of due process is not permissible. [Citations.]" (Fremont Indemnity Co. v. Workers' Comp. Appeals Bd., supra, 153 Cal.App.3d at pp. 971-972.) The court should have remanded requiring the Board to make new findings after a constitutionally adequate hearing. (Sinaiko v. Superior Court, supra, 122 Cal.App.4th at p. 1142; Glendale Memorial Hospital & Health Center v. State Dept. of Mental Health (2001) 91 Cal.App.4th 129, 140 [110 Cal.Rptr.2d 101].)
*716 V
Board's Jurisdiction on Remand
(10) MHC claims the Board lacks authority to apply judicial doctrines to determine the nature of the tenancies or decide whether tenants relied on oral representations about the leases. We disagree. "Determining whether a mobilehome lease is exempt from rent control is not an exclusively judicial function." (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd., supra, 101 Cal.App.4th at p. 1142.) Here the Board, among other things, essentially found that MHC was estopped from claiming the tenancies were exempt from rent control because of its alleged misrepresentations to the tenants.
(11) Equitable estoppel is a judicially developed doctrine, but the Board may apply it where the facts show a party was misled. (Lentz v. McMahon, supra, 49 Cal.3d at pp. 405-406.) In so doing, the Board applies general principles of law and equity. (Ibid.) When acting within its authority to regulate rents, the Board may decide the relevant legal issues (ibid.; McHugh v. Santa Monica Rent Control Bd., supra, 49 Cal.3d at p. 375), and such administrative decisionmaking, "`. . . if subject to judicial review, does not deny participants their . . . [entitlement] to [a] judicial determination of their rights.' [Citation.]" (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd., supra, 101 Cal.App.4th at p. 1143.) The parties raise additional issues which the Board may not have to reach or which should be decided on a more complete record.
VI
MHC's Unconstitutional Taking Claim Is Not Ripe
MHC contends the rent control ordinance, as applied here, constitutes an unconstitutional taking of property. But the Board ruled, "the appropriate way to increase rents would be through a hardship rent increase. MHC may apply for such an increase if it believes it qualifies." MHC did not use all its remedies under the ordinance. Its taking claim is not ripe. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 791, fn. 2 [90 Cal.Rptr.2d 598]; Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 785 [66 Cal.Rptr.2d 672, 941 P.2d 851].) Moreover, because we vacate the judgment and the Board's decision, we need not decide the trial court's rulings on MHC's constitutional challenges to the rent control ordinance or the parties' remaining contentions on appeal.
*717 The judgment is reversed and the cause is remanded to the trial court with instructions that it vacate the Board's decision and remand the matter to the Board for a new hearing. Because we have decided that the lease is facially valid, the Board shall allow cross-examination of testifying witnesses.
Costs on appeal are awarded to appellants.
Coffee, J., and Perren, J., concurred.
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277 S.E.2d 456 (1981)
STATE of North Carolina
v.
John KEADLE.
No. 8015SC833.
Court of Appeals of North Carolina.
May 5, 1981.
*458 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen., Sarah C. Young, Raleigh, for the State.
Emma Jean Levi, Chapel Hill, for defendant-appellee.
MORRIS, Chief Judge.
The state contends that the trial court improperly found that Bob Goldberg, as resident advisor in a University dormitory, acted as an agent of the state in a quasi law enforcement capacity when he conducted his search of defendant's dorm room. We agree.
The fourth amendment protects individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The exclusionary rule which was developed to enforce the restraints of the fourth amendment was applied to the federal government in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and was made binding upon the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The protections of the fourth amendment and the attendant exclusionary rule have traditionally been confined to governmental rather than private action. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); State v. Morris, 41 N.C. App. 164, 254 S.E.2d 241, cert. denied and appeal dismissed, 297 N.C. 616, 267 S.E.2d 657 (1979); State v. Reagan, 35 N.C.App. 140, 240 S.E.2d 805 (1978); State v. Carr, 20 N.C.App. 619, 202 S.E.2d 289 (1974); State v. Peele, 16 N.C.App. 227, 192 S.E.2d 67, cert. denied, 282 N.C. 429, 192 S.E.2d 838 (1972). See Annot. 36 A.L.R.3d 553 (1971).
In Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the United States Supreme Court affirmed its adherence to the rule of Burdeau. In Coolidge the wife of a murder suspect voluntarily gave her husband's clothes and guns to police officers who had come to her home for the purpose of checking the husband's story against whatever his wife might say and to corroborate his admission of a theft from his employer. From evidence received from the wife, the police officers procured a warrant for her husband's arrest. Justice Stewart, speaking for the Court, stated the following with regard to this issue:
Had Mrs. Coolidge, wholly on her own initiative, sought out her husband's guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell, 256 U.S. 465, 65 L.Ed. 1048, 41 S.Ct. 574, 13 A.L.R. 1159.
403 U.S. at 487, 91 S.Ct. at 2048, 29 L.Ed.2d at 595. Justice Stewart went on to say with regard to whether the exclusionary *459 rule should have been applied under the facts of Coolidge:
The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner's argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an "instrument" or agent of the state when she produced her husband's belongings. (Citations omitted.) ... The exclusionary rules were fashioned "to prevent, not to repair," and their target is official misconduct. They are "to compel respect for the constitutional guaranty in the only effectively available wayby removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1677. But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. (Emphasis added.)
403 U.S. at 487-88, 91 S.Ct. at 2048-49, 29 L.Ed.2d at 595.
Where a search and seizure is conducted by a private citizen rather than a governmental officer, the admissibility of the fruits of such a search into evidence may be supported on the ground that no fourth amendment violations are involved, but also on the ground that the purpose of the exclusionary rule, the deterrence of unlawful police conduct, would not be furthered by excluding evidence on the basis of unlawful conduct of private individuals. Therefore, where an unreasonable search is conducted by a governmental law enforcement agent, it is subject to the restraints of the fourth amendment and the exclusionary rule. Moreover, where a search is conducted by a private citizen, but only at the government's initiation and under their guidance, it is not a private search but becomes a search by the sovereign. However, a search not so purely governmental must be judged according to the nature of the governmental participation in the search process. In the instant case, we have one of those vague factual situations requiring that we look at all of the circumstances to assess the amount of governmental participation and involvement, if any, either through the resident advisor's contact with the government as an employee of the University of North Carolina or through direct governmental initiation and guidance of the search procedure.
As to the latter, there is no evidence that law enforcement officials had any part whatsoever in Bob Goldberg's initial search of defendant's room. Judge Brewer specifically found the following undisputed facts in his order of 20 June 1980 granting defendant's motion to suppress:
9. That Bob Goldberg was performing an expected function as Resident Advisor in checking for lights left on in vacant dormitory rooms.
. . . . .
11. That there is no evidence that when Bob Goldberg looked under the blanket on the defendant's bed that he was performing a University function, nor is there any evidence that he had any direction, instruction, or request from any law enforcement officer to do so.
. . . . .
13. That no law enforcement officer personally entered, nor directed anyone else's entry, into the defendant's room until after he had obtained the search warrant contained in the file of this case.
The findings of fact speak for themselves.
The crux of the state's appeal narrows to the issue of whether Goldberg's contact with the state, through his position as a resident advisor, was such as to make him a quasi law enforcement officer or agent of the state for purpose of making the fourth amendment and the exclusionary rule applicable to this situation. We are of the opinion that as a resident advisor, Goldberg did not have sufficient contact with the state for this purpose. As a resident advisor in a dormitory, he had neither the status nor the *460 authority of a law enforcement officer. It would serve no useful function as a deterrent to illegal governmental searches to apply the exclusionary rule in this instance. The resident advisor, motivated by reasons independent of a desire to secure evidence to be used in a criminal conviction, would be under no disciplinary compulsion to obey the exclusionary rule. Therefore, in this instance, we think that the government contact is so tenuous as to render the fourth amendment and the exclusionary rule inapplicable.
In State v. Kappes, 26 Ariz.App. 567, 550 P.2d 121 (1976), the Arizona Court of Appeals found that a routine room inspection by two resident advisors at a state university during which drugs were found in defendant's room did not constitute a governmental intrusion. Thus, the government's involvement was insufficient to invoke the fourth amendment, and, consequently, the exclusionary rule. In rendering its decision, the court stated:
The purpose of the room inspection is not to collect evidence for criminal proceedings against the student, but to insure that the rooms are used and maintained in accordance with the university regulations. While the actions of the student resident advisors in carrying out room inspections serve the internal requirements of the university, we do not find that they are tainted with that degree of governmental authority which will invoke the fourth amendment. See: In Re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969).
26 Ariz.App. at 570, 550 P.2d at 124. The reasoning of the Arizona court parallels our own.
For these reasons, we hold that the intrusion present here did not reach the level which would necessitate the application of constitutional safeguards. Therefore, we reverse the trial court's order allowing defendant's motion to suppress this evidence and remand this case to the superior court for trial.
Reversed and remanded.
VAUGHN and BECTON, JJ., concur.
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202 Va. 855 (1961)
ROBERT J. SOLLIE
v.
PATRICIA ANN HUGHES SOLLIE.
Record No. 5236.
Supreme Court of Virginia.
June 12, 1961.
Harvey S. Lutins (T. W. Messick, on brief), for the appellant.
Present, Eggleston, C.J., and Spratley, Buchanan, Snead, I'Anson and
1. On evidence taken by depositions and after two ore tenus hearings at which she and her husband testified Mrs. Sollie was granted a divorce on the ground of cruelty. Her evidence indicated physical abuse on several occasions, and a continued course of unkindness and disrespect, shown in private and in public. To the resultant strain and unhappiness she attributed a partial facial paralysis and her decision to leave home. This evidence, corroborated by the testimony of her mother, who lived with them at times, was held sufficient to support the decree. Life and health may be endangered by conduct other than personal violence, and such cruelty, though condoned for a time, may cumulate to a point where it is no longer bearable.
2. Where defendant was allowed to testify fully from notes as to telephone conversations with his wife after their separation it was not error to refuse to hear tape recordings of these conversations.
3. Nor did the court err in refusing to examine the child of the parties where there was no avowal of what the child would say that would constitute pertinent evidence.
Appeal from a decree of the Circuit Court of Roanoke county. Hon. Fred L. Hoback, judge presiding. The opinion states the case.
G. W. Read, Jr., for the appellee.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
On May 1, 1957, Patricia Ann Hughes Sollie, complainant, filed her bill against her husband, Robert J. Sollie, defendant, seeking a divorce a mensa et thoro on the ground of cruelty, and praying for the custody of their daughter, Elizabeth Ann, then six years old, and for alimony for herself and support for the child. The defendant filed an answer and cross-bill, in which he prayed for a divorce a mensa et thoro from the complainant on the ground of desertion, with permission to have the same merged into an absolute divorce at the proper time.
Evidence was taken, some by depositions and some ore tenus, at intervals over a period of more than two years, on the basis of which the court entered its decree on May 5, 1960, dismissing the defendant's cross-bill and granting to the complainant a divorce a mensa et thoro, awarding the custody of the child to the complainant, together with alimony to her and an allowance for the support of the child. On the same day, on petition of the complainant, the decree was merged into a decree of divorce a vinculo matrimonii, with the same provisions for alimony and support until the further decree of the court.
The defendant says the sole issue involved in this appeal is whether the court erred in granting a divorce to the complainant and in dismissing the defendant's cross-bill. His argument is that there was not sufficient corroboration of the complainant's evidence to warrant the decree.
The parties were married in February, 1951, in Maryland where the defendant was going to school. He was then twenty-three years old and she was twenty. After the marriage she lived with her mother in Pittsburgh until the following June, when the defendant finished school. They then moved to Schenectady, New York, where the defendant had a job with General Electric and where their child was afterwards born. Her mother went with them. They lived there four years, then in 1955 they moved to Roanoke county where they had bought a home and he continued his employment with the Electric Company.
There seems to have been little harmony or happiness in the marriage; rather the evidence presents a record of almost continuous discord, running the scale of disagreements, jealousies, arguments, coarse language and physical combat. She testified that from the first their marriage was not a partnership, "He went out and I sat *857 at home." She claimed that during their entire married life he hardly had a kind word for her or paid her a compliment or praised anything she did. While they were living in Schenectady he could not find his hunting knife and slapped her because she wouldn't find it for him. He had slapped her and struck her, she said, on several other occasions while they lived there. On one occasion when her mother was present he threw water from the fish bowl at her when they had an argument over a girl. One of his names for her which he frequently used in the presence of their friends, she said, was "maggot mouth," and he would tell them that he picked her up off the street; that she was illegitimate and was nothing until he got her.
On March 1, 1957, after she and the defendant had been having trouble, they went together to see her attorney and get his help. She said her husband was not interested and when they returned home he accused her of lying to the attorney. In the ensuing argument and while she was holding the baby, he sat down across her lap, slapped her across the face and around her ears and then began beating her on the leg. When she got away from him she went to a neighbor's and called the sheriff but was told she would have to swear out a warrant before any arrest could be made. She returned home and stayed there until April 16, 1957, when she left, taking the daughter with her, and went to live with her mother. She said she left as soon as her mother had a place for her to live, as she had no job and no money.
During the time they were living together in Roanoke county she developed a facial paralysis, called Bell's palsy, which she attributed to her nervous condition induced by her marital troubles. Her mother, testifying in February, 1958, said, "look at her how her face is twisted * * * she had a beautiful face. She can't smile now; she can't talk right."
The complainant testified that the defendant never showed the love for the daughter that a father should, and she described specific acts of cruelty in his punishment of the child. Her mother corroborated her in this respect. One of her neighbors, who admitted that she was partial to Mr. Sollie, testified that his punishment of the child "did not fit the crime" and she thought at one time he seemed to enjoy punishing her, but she later concluded that she was wrong about that.
The complainant's mother testified that in October, a 1956, nearly *858 a year after they moved to Virginia, she telephoned the defendant and asked him if she could come down and he requested that she do so. She was with them until after the occurrence of March 1, 1957. She did not see that affair but testified that after the defendant had gone to work that morning her daughter came out of her room and her face was black and blue. The mother inquired, "What hit you?" and the daughter replied, "The master." Her testimony in general corroborated that of her daughter as to the quarrels, troubles and mode of life of this couple, and the attitude and behavior of the husband to his wife and child. Of the defendant she said, "There's nobody any nicer than Bob when he wants to be nice, but there's nobody more spiteful when he wants to be."
She testified that her daughter wanted to live with her husband but that she definitely was afraid of him, and cited instances in support of her statement. She would not assert, she said, that the trouble was all the defendant's fault, but that she would not have taken what her daughter had had to take during the seven years of their marriage. She was asked if it appeared to her that the defendant was about to kill the complainant, and her reply was, "Well, you can kill people without striking them. You can torture them to death."
It is evident from the testimony that this mother was not a person of notable refinement, but was given at times to the use of coarse language and to the drinking of beer and perhaps other spirits, but her testimony was impressive in its apparent frankness and the trial court could readily have given it credence. It is clear that she gave financial aid to the couple through the years, and while the defendant in his testimony claimed she was the cause of much of the trouble, he admitted that he never asked her to leave and testified that he got along quite well with her. There is some indication of affection between them although at the conclusion of her testimony she said of him and to him that he was "a born liar."
The neighbors who were called as witnesses both by the complainant and by the defendant expressed their preference for the defendant and said that he was no more to blame for their arguments than she was, and that there was name-calling on both sides. Their testimony was that when the complainant came to the home of one of them after the trouble on March 1 she showed no physical marks of injury but that she was then screaming and crying and saying that *859 Bob was coming after her. They corroborated some of her testimony as to his ugly references to her in their presence.
The defendant testified at great length and to the effect that while he was not blameless in their troubles, the fault was more hers than his. He cited instances of her failing in her duties as his wife. He admitted that they frequently quarreled and had violent arguments, but said that he had struck her only on two occasions. One was the hunting knife episode in 1953, when he gave her "a little love tap, you might say, on the said of the face," after she "gave me a knee in the groin." He said she had a habit, even at play, of hitting him in groin, and added, "Where she picked this up at, I don't know . . ." The other occasion was the incident of March 1, 1957, when he said they had a heated argument and she started calling him dirty names and kicked him in the groin. He grabbed her and "just gave her a love tap; a fingertip motion on the side of the face or the mouth."
He said they got along better after she had the facial paralysis because she realized it was unsightly and that she then had to win people on personality. In response to a question as to why he stayed on if he was abused so badly as he claimed, he replied, "People have been stepping on me all my life" and "I have been abused all my life and accepted it."
After the depositions in the case had been concluded the trial court held two ore tenus hearings. The first was on April 19, 1960, when both the complainant and the defendant testified as to the possibility of reconciliation. The complainant testified that she had talked to her husband on the telephone about a week before and asked for a reconciliation but he had said no, absolutely not. The defendant testified "There couldn't be any reconciliation; every time we talk to each other, we argue, and it's not necessarily her fault. But we still argue. I can't see how there could be talk of reconciliation." At the end of this hearing the court announced its conclusion that the complainant was entitled to a divorce on the ground of cruelty and constructive desertion, and directed that a decree be prepared accordingly.
Afterwards, on May 5, 1960, the second ore tenus hearing was held. At its beginning the court stated that the defendant had complained that he had not had an opportunity to make certain statements or put on certain evidence that he had, and for that reason he did not think justice had been done; that the court had advised the defendant to *860 talk to his attorney and if after doing so he felt he had some additional evidence an opportunity would be given him to present it.
The defendant then took the stand and offered in evidence portions of tape recordings, made without the knowledge of his wife, of telephone conversations alleged to have occurred between the defendant and her, one on January 26, 1958, and another on March 25, 1960. The court refused to hear the tape recordings but permitted the defendant to testify from his notes as to what these conversations were. Their substance was that his wife had said to him that the cause of their separation was her mother and religion and not the defendant; that she admitted she was wrong in a lot of things, and that she had made a mess out of his life and Betty's life. He told her, he said, that he would have been a lot better if she hadn't done those things; that "I wasn't perfect; but I thought I was better than the next guy, as far as a husband is concerned."
He was asked by the court why he didn't refer to the tape recordings when he took his evidence on June 12 and 16, 1959, or at the ore tenus hearing on April 19. He replied that he did not realize they were evidence; that he told his attorney he had them but his attorney said, "I can't believe that stuff." In response to questions from the court about a reconciliation his answers were revealing. He said he thought there was a possibility, but when the court inquired why there had been no reconciliation he answered, "Well, I've got the home there, and I'm there; and I did nothing wrong, as far as her leaving me, I feel -- or in wanting her leave me. * * * The house is there, and I didn't cause her to leave; and she can come back just the way it was when she left."
The court then asked him if he had not told the court at the April 19 hearing that he would like to become reconciled but knew in his heart that he shouldn't. He replied, "No; I think I said my heart told me to reconcile, but my mind told me my heart couldn't take it."
We have said in our decisions in this field that angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, may as effectually endanger life or health as personal violence, and afford grounds of relief to the injured spouse, Latham Latham, 71 Va. (30 Gratt.) 307 321; and that cruelty is cumulative, admitting of degrees and augmented by additions, so that it may be condoned and even forgiven for a time, and up to a certain point, without any bar to bringing it all forward *861 when a continuance of it has rendered it no longer condonable. Owens Owens, 96 Va. 191, 195, 31 S.E. 72, 74; Ringgold Ringgold, 128 Va. 485, 497, 104 S.E. 836, 841.
In this case the wife and the husband appeared and testified before the trial court on at least two occasions, giving the court an opportunity to appraise their testimony and evaluate it in the light of their appearance, their manner of testifying and the reasonableness of what they said. The court gave the parties full opportunity to develop the case. After reading the depositions "carefully and more than once," as the court said, and seeing and hearing the parties, it reached the conclusion that the complainant was entitled to prevail and to have the relief granted by the decree appealed from. The evidence was sufficient and there was sufficient corroboration of the complainant's testimony, Code | 20-99, to support and warrant the conclusion reached by the court.
For a discussion of what constitutes sufficient corroboration, as well as of the presumption of the correctness of a decree based on depositions, see the opinion of Mr. Justice Spratley in Martin Martin, decided today, ante. p. 769. The presumption of correctness is materially strengthened here by the fact that the immediate parties also testified in the presence of the court.
As additional errors the defendant assigned the refusal of the court to hear the tape recordings and to call the child as a witness at the hearing on May 5, 1960. As to the first, enough has been said above to show that there was no error in this ruling. The court allowed the defendant to testify fully from his notes as to the alleged conversations with his wife. An annotation on the admissibility of sound recordings in evidence may be found in 58 A.L.R.2d at 1024.
With respect to the second assignment, the motion was that the court examine the child "as to any statements made by Mrs. Sollie * * * that it was not her husband's fault, but that she left because of her mother and religion." The court replied that it saw no reason to put the child on "unless you have some pertinent evidence." No evidence was offered and there was no avowal of what the child would say. There was no error in this ruling.
In response to the complainant's petition in her brief, a fee of $250.00 is allowed to her counsel for representing her in this court.
The decree appealed from is
Affirmed.
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103 Ga. App. 739 (1961)
120 S.E.2d 673
CLARKE
v.
THE STATE.
38791.
Court of Appeals of Georgia.
Decided May 24, 1961.
Frank A. Bowers, for plaintiff in error.
Paul Webb, Solicitor-General, Thomas R. Luck, Jr., Eugene L. Tiller, Assistant Solicitors-General, contra.
JORDAN, Judge.
The defendant was tried and convicted in the Superior Court of Fulton County for the offense of receiving stolen goods under Code §§ 26-2621. His motion for new trial on the general and special grounds was denied and he excepts to that judgment. Held:
1. Before a conviction can be had for the offense of receiving stolen goods under Code §§ 26-2620 and 26-2621, every fact essential to the conviction of the principal thief, whether he be known or unknown, must be proved, as well as that the party on trial received the stolen goods with knowledge that they were stolen. Ford v. State, 162 Ga. 422 (3) (134 S.E. 95); Stripland v. State, 114 Ga. 843 (2) (40 S.E. 993); Ford v. State, 35 Ga. App. 655 (134 S.E. 353); Belton v. State, 21 Ga. App. 792 (95 S.E. 299); Wright v. State, 1 Ga. App. 158 (2) (57 S.E. 1050).
2. Before one can be convicted of receiving stolen goods it must appear from the evidence that he knew the property was stolen at the time he received it. This knowledge may generally be inferred from circumstances which would excite the suspicions of an ordinarily prudent man. Licette v. *740 State, 75 Ga. 253; Cobb v. State, 76 Ga. 664; Von Sprecken v. State, 70 Ga. App. 222 (28 S.E.2d 341).
3. However, the mere fact that, recently after the commission of the offense, the stolen goods are found in the possession of the defendant does not authorize the jury to infer that the accused was guilty of receiving said stolen goods knowingly. "Upon proof alone of recent possession of stolen goods, the law does not put the burden upon the possessor of stolen goods of proving that he was not guilty of receiving the goods knowingly . . . . This rule . . . would only apply to the sufficiency of the evidence which would authorize the jury to infer the guilt of the principal thief . . . but would not apply to the sufficiency of the proof which would authorize an inference of the guilt of . . . the person alleged to have knowingly received the stolen goods." Bird v. State, 72 Ga. App. 843, 844 (4) (35 S.E.2d 483). See also Suggs v. State, 59 Ga. App. 394 (1 S.E.2d 39); Chambers v. State, 94 Ga. App. 531 (95 S.E.2d 326).
4. Assuming but not deciding that the evidence was sufficient to show that the goods in the instant case were stolen as alleged in the indictment, the evidence as to the guilt of the defendant for the offense of receiving said stolen goods authorized a finding of nothing more than the fact that the defendant had possession of part of the goods shortly after the commission of the alleged offense. While this may be sufficient to raise an inference that the defendant did receive the goods, it is not sufficient under the authorities cited in division 3 of this opinion to authorize the finding that the defendant was guilty of receiving stolen goods knowingly. Accordingly, the evidence neither showing guilty knowledge on the part of the defendant nor any circumstances from which the jury could do more than surmise the existence of such guilty knowledge on his part, the verdict was without evidence to support it and contrary to law; and the trial court erred in denying the motion for new trial on the general grounds.
5. Since the error complained of in special ground 4 (failure to prove venue) is not likely to recur on the subsequent trial of this case, that ground will not be passed upon. The remaining special grounds were not argued and are therefore considered abandoned.
*741 Judgment reversed. Townsend, P. J., and Frankum, J., concur.
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120 S.E.2d 523 (1961)
255 N.C. 172
Florence R. WESTMORELAND
v.
William Harold GREGORY and Eugene Robert Gregory.
No. 529.
Supreme Court of North Carolina.
June 16, 1961.
*524 Dupree, Weaver, Horton & Cockman, Raleigh, for defendants-appellants.
Wilson & Bain, Dunn, for plaintiff-appellee.
BOBBITT, Justice.
Defendants' motions for judgments of nonsuit were properly overruled. The evidence, when considered in the light most favorable to plaintiff, was amply sufficient to support findings that Harold Gregory's actionable negligence proximately caused the mishap and that Buddy Gregory was liable therefor under the family purpose doctrine. Whether plaintiff was contributorily negligent, as alleged by defendants, was for jury determination upon sharply conflicting evidence.
On April 30, 1959, Harold Gregory was twenty years old. He had been in the military service from 1955 until April 28, 1958. From November, 1958, until April 30, 1959, he resided in the home of Buddy Gregory, his uncle, on the Sanford Road (Highway 421), west of Lillington. During this period, he worked for Buddy Gregory in his motor boat business on Main Street in Lillington, referred to as Buddy's Marine, where Jack Westmoreland, plaintiff's husband, was employed by Buddy Gregory as a mechanic.
On April 30, 1959, plaintiff was thirty-four years old. She had married Jack Westmoreland in December, 1946. They, and their three children, lived on First Street in Lillington. Buddy Gregory's home was "on the opposite side of town" from the Westmoreland residence.
Harold Gregory, also Buddy Gregory and his wife, had visited in the Westmoreland home. There is no evidence of any impropriety in the relations of Harold Gregory and plaintiff prior to April 30, 1959. Harold Gregory testified he had played cards with the Westmoreland boys in the Westmoreland home.
Jack Westmoreland left Lillington during the morning of April 30, 1959, on a business trip. He was to go, and did go, to Durham and from there to Greensboro. At that time, Jack Westmoreland had, in his home, some "bootleg" whiskey. Harold Gregory went to the Westmoreland home between 1 and 2 p. m. When he arrived, and while he was there, plaintiff was the only other person in the Westmoreland home. Harold Gregory had a drink of the Westmoreland whiskey while he and plaintiff sat in the Westmoreland home and watched a television program. Apart from these facts, the testimony of plaintiff and the testimony of Harold Gregory as to what transpired between them from the time he arrived at *525 the Westmoreland home until the mishap on the McDougald Road are in sharp conflict.
Plaintiff's testimony, in summary, tends to show she did not telephone Harold Gregory or otherwise invite him to her home; that, upon his arrival, he stated her husband had told him "he had some whiskey there that he could have a drink of"; that, when she brought the whiskey to Harold Gregory, he poured out "an inch in a juice glass" and drank it while they watched television; that she loaned Harold Gregory one dollar to buy beer and handed him an extra dollar to buy two cans of beer for her; that, upon leaving to go for the beer, he did not take the two dollars, which were on the kitchen table; that, upon his return, he commented that he had forgotten the money and asked her if she wanted to go with him to get the beer; that she consented to go upon his assurance they would be gone only five or ten minutes; that she was in the car when Harold Gregory bought four cans of beer; that, upon his return to the car, he gave her an opened can of beer, kept an opened can and put the two unopened cans in the foot of the car; that, instead of taking her home, Harold Gregory drove out into the country under the pretext of showing her where his girl lived and ignored her repeated requests that he take her home; that, after he had turned off the highway and stopped the car, he made an improper proposal to her, which she indignantly refused and demanded that he take her home; that there was no "kissing and petting" there or elsewhere; that she did not sit "real close up to (him)" at any time while riding with him; that, on their return to Lillington, Harold Gregory drove between 60 and 65 miles an hour, around curves, on the wrong side of the road; that she repeatedly told him to slow down and drive on his side of the road but did not physically interfere with him in any way; that she knew he had had a drink when she left her house with him to go and purchase beer and that thereafter he had had a can of beer but "(i)t did not appear to (her) then he was under the influence of anything that he had been drinking."
Harold Gregory's testimony, in summary, tends to show he went to plaintiff's home, in response to her telephone request, and upon arrival was invited into her house and given a drink of whiskey; that she gave him money with which to go and buy beer; that he went and bought the beer and upon his return he and plaintiff drank beer at the Westmoreland house; that she then went with him to buy more beer; that after this second purchase of beer he drove several miles, she "sitting over real close" to him, and turned off the highway to a secluded spot known as "Hell's Half Acre," where they stayed some 50 minutes or more, drinking beer and "kissing and petting"; that, after these events, plaintiff asked him to take her home; that, on the way back to Lillington, plaintiff "was sitting real close up to (him)"; that she made no objection or comment as to how he was driving; that he had had "one glass of whiskey and two beers"; that plaintiff, to the best of his knowledge, had had four cans of beer, three at the house (first purchase) and one after the second purchase was made; and that, just before they got to the curve where the car ran off the road, plaintiff "grabbed (him) and pulled (him) over and kissed (him)"; and that, when this occurred, he lost control of the car.
The investigating State Highway Patrolman, a witness for plaintiff, testified he talked with Harold Gregory when he arrived at the scene of the mishap. He referred to his opinion as "borderline" as to whether Harold Gregory at that time was under the influence of intoxicants. Harold Gregory was not charged with driving while under the influence of intoxicants but pleaded guilty to driving (1) in excess of 55 miles per hour and (2) on the wrong side of the road. On cross-examination, the Patrolman testified: "It was very obvious that this defendant (Harold Gregory) was drinking." Again: "It was very obvious to *526 me that at least some of his faculties were impaired."
With reference to the contributory negligence issue, the court reviewed what plaintiff contended the evidence showed and then what defendants contended the evidence showed. Thereafter, the court defined, in general terms, the elements of contributory negligence. But the court did not instruct the jury as to what facts would constitute the basis for a finding that plaintiff was guilty of contributory negligence. In short, the legal task of applying the general law to the facts in evidence was committed to the jury.
With further reference to the contributory negligence issue, defendants submitted requests for special instructions as to the duty imposed by law upon a guest passenger. Whether the court should have given all or any of the requested instructions in the form submitted need not be decided. Whether a guest passenger is contributorily negligent is determinable in accordance with legal principles stated in Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33, and cases cited therein. In this connection, see Dinkins v. Carlton, N.C., 120 S.E.2d 543. Examination of the charge discloses the court gave no instruction as to these legal principles. In view of defendants' plea of contributory negligence and the evidence tending to support said plea, we are constrained to hold that the failure to instruct, even in general terms, as to the legal principles applicable in determining whether plaintiff was guilty of contributory negligence was prejudicial error.
With reference to the fourth issue, whether Buddy Gregory was liable for the negligence, if any, of Harold Gregory, under the family purpose doctrine, the court instructed the jury correctly, in general terms, as to the family purpose doctrine, and reviewed what plaintiff contended the evidence showed and then what defendants contended the evidence showed. However, the court failed to instruct the jury as to what facts would constitute a basis for a finding that Buddy Gregory was liable for the negligence, if any, of Harold Gregory, under the family purpose doctrine. We deem it unnecessary to review the sharply conflicting evidence relevant to this issue.
Under G.S. § 1-180, the trial judge is required to relate and apply the law to the variant actual situations having support in the evidence. Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323, and cases cited; Harris v. Atlantic Greyhound Corp., 243 N.C. 346, 351, 90 S.E.2d 710, 58 A.L.R. 2d 939; Glenn v. City of Raleigh, 246 N.C. 469, 478, 98 S.E.2d 913; Brooks v. Honeycutt, 250 N.C. 179, 108 S.E.2d 457; Godwin v. Hinnant, 250 N.C. 328, 108 S.E.2d 658. He has "* * * the positive duty of instructing the jury as to the law upon all of the substantial features of the case." Lewis v. Watson, 229 N.C. 20, 23, 47 S.E.2d 484, 486; Spencer v. McDowell Motor Co., 236 N.C. 239, 72 S.E.2d 598; Glenn v. City of Raleigh, supra. Moreover, in the absence of request for special instructions, a failure to charge the law on the substantial features of the case arising on the evidence is prejudicial error. Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522; Barnes v. Caulbourne, 240 N.C. 721, 725, 83 S.E.2d 898; McNeill v. McDougald, 242 N.C. 255, 87 S.E.2d 502; Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727.
On account of the court's failure to declare, explain and apply the law arising on the evidence as to all substantial features of the case, as required by G.S. § 1-180, a new trial is awarded. See Byrnes v. Ryck, 254 N.C. 496, 119 S.E.2d 391, and cases cited.
New trial.
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276 S.C. 184 (1981)
277 S.E.2d 587
Thronie COCKCROFT, as Administratrix of the Estate of Warren P. Cockcroft, Jr., and United States Fidelity and Guaranty Insurance Company, Appellants,
v.
AIRCO ALLOYS, INC., Respondent.
21413
Supreme Court of South Carolina.
March 23, 1981.
*185 Patrick F. Stringer, of Stringer & Stringer, Charleston, for appellants.
Coming B. Gibbs, Jr., of Gibbs, Gaillard, Rowell & Tanenbaum, Charleston, and R.W. Dibble, Jr., and Robert E. Stepp, of McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, Columbia, for respondent.
March 23, 1981.
LITTLEJOHN, Justice:
This action was brought by plaintiffs, Thronie Cockcroft, as administratrix of the estate of her deceased husband, Warren P. Cockcroft, Jr., and United States Fidelity and Guaranty Insurance Company (which paid a workmen's compensation claim because of the husband's death) against the defendant Airco Alloys, Inc. It is a third-party action growing out of conduct of the defendant alleged to have wrongfully caused the death of Warren P. Cockcroft, Jr. The trial judge granted a motion by the defendant to dismiss the action for want of subject matter jurisdiction. The plaintiffs appealed. We affirm.
*186 On June 24, 1975, Warren P. Cockcroft, Jr., an employee of M & M Electric Company, was working on the defendant's property. The next day he died. His widow, Thronie Cockcroft on September 23, 1975, was appointed administratrix of her late husband's estate. On the same day, Aetna Casualty and Surety Company issued and administration bond.
The administratrix prosecuted a Workmen's Compensation claim against her husband's employer, which was insured by United States Fidelity & Guaranty Insurance Company as carrier. A settlement resulted, and the net proceeds were deposited to the estate account and distributed in May, 1977. On February 13, 1978, the judge of probate entered letters dismissory, discharging Mrs. Cockcroft from all liability as administratrix of the estate, and her bond was canceled as of that date. We hold, as did the lower court, that the dismissal was proper, the administration was ended and that Mrs. Cockcroft had no further authority to act in an administratrix capacity.
On March 10, 1978, Lester E. Stringer, as attorney for U.S.F. in the Workmen's Compensation action brought by the administratrix, wrote a letter, certified mail-return receipt requested, to Mrs. Cockcroft, as follows:
"Dear Mrs. Cockcroft:
"In reference to your husband's workmen's compensation claim which was approved approximately May 30th, 1977, the insurance carrier is subrogated to the cause of action against a third party for the amount paid on the claim.
"The employee's Right of Action is assigned to the carrier if the employee, or his representative has not commenced an action within the one year period, or within thirty (30) days prior to the expiration of the time in which said action may be brought.
"Therefore, you are notified to bring such action against Airco for the wrongful death of your husband, before May *187 30th, 1978, and failure to commence such action will operate as an assignment of the cause of action to the U.S. Fidelity & Guaranty Insurance Company."
On July 10, 1978, Mr. Stringer filed a notice of third-party action with the Industrial Commission, in which he advised the commission that an action had been commenced against the defendant on June 7, 1978. On the same day, Mr. Stringer filed an entitlement of right to action with the commission, in which he advised the commission that U.S.F.&G. assumed and asserted entitlement to bring a third-party action against the defendant on the ground that the right of action of the surviving workmen's compensation beneficiary of Warren P. Cockcroft, Jr. had passed to U.S.F. because the personal representative had failed to execute a settlement or to commence an action within one year of acceptance of liability for payment of workmen's compensation. On July 31, 1978, Mr. Stringer commenced this action by service of summons and complaint. The complaint alleged that Mrs. Cockcroft was at that time the administratrix (though she was not) of the estate of Mr. Cockcroft and was bringing the action in that capacity. It is a wrongful death action.
The defendant served no responsive pleadings. On September 21, 1978, Mr. Stringer filed an affidavit of default, and the clerk of court filed an order of default and of reference. On March 1, 1979, the defendant served its special appearance and motion to dismiss for lack of subject matter jurisdiction. On March 23, 1979, Mrs. Cockcroft filed an unverified petition requesting the judge of probate to issue an order rescinding and voiding, nunc pro tunc, the previously issued letters dismissory on the ground that they were issued prematurely. The probate judge granted the petition that same day. The defendant first learned of the nunc pro tunc order on April 5, 1979, and on April 10, 1979, appealed therefrom. (Defendant's appeal presumably is still active pending the outcome of the appeal presently before us.)
*188 At the time the summons and complaint were served and at the time the order of default was taken, Mrs. Cockcroft as administratrix was a fictitious plaintiff, possessing no litigating identity. Plaintiff was not a legal entity. At the time of the service of the summons and complaint and at the time of the default, Mrs. Cockcroft was erroneously representing to the court that she was the administratrix, when in fact she was not. The lower court correctly held that the motion to dismiss was timely. Its ruling is consistent with our recent case of Cox v. Lunsford, 272 S.C. 527, 252 S.E. (2d) 918 (1979), upon which it relied. We find no error.
Counsel for appellants argue that the order of the probate judge, nunc pro tunc, reinstating Mrs. Cockcroft as administratrix, served the purpose of validating her bringing of this action at a previous date. We agree with the trial judge that our case of Glenn v. E.I. DuPont De Nemours & Co., 254 S.C. 128, 174, S.E. (2d) 155 (1970), is to the contrary. Counsel, appreciating the impact of this decision, sought permission to argue for modification, which was denied by this court. We adhere to the precedent established in Glenn. The exception is without merit.
This brings us to the last question submitted in the brief of counsel for the appellants:
Did the carrier [U.S.F.] obtain an assignment of the within action permitting it to maintain the action in its own name?
As noted in the caption, U.S.F. is a party-plaintiff. The lower court held that the workmen's compensation law, as now amended and codified as § 42-1-560 (1976), no longer permits an employer and/or insurance carrier to bring an action such as this in his own name. He further held that even if the law permitted the employer and/or carrier to bring an action in his own name, proper notice was not given as required by the statute. We need *189 not reach the question of whether an action, under any state of facts, may be brought solely in the name of the employer and/or carrier, but affirm on the ground that proper notice was not given and arrive at the same result. Section 42-1-560(c) provides:
"If, prior to the expiration of the one-year period referred to in subsection (b), or within thirty days prior to the expiration of the time in which such action may be brought, the injured employee, or, in event of his death, the person entitled to sue therefore shall not have commenced action against or settled with the third party, the right of action of the injured employee, or, in event of his death, the person entitled to sue therefore shall pass by assignment to the carrier; provided, that the assignment shall not occur less than twenty days after the carrier has notified the injured employee, or, in the event of his death, his representative or other person entitled to sue therefor in writing, by personal service or by registered or certified mail that failure to commence such action will operate as an assignment of the cause of action to the carrier ..." (Emphasis added.)
It should be observed that notice must be given to "... the injured employee, or, in the event of his death, his personal representative or other person entitled to sue therefor in writing, by personal service or by registered or certified mail that failure to commence such action will operate as an assignment of the cause of action to the carrier." At the time the notice was given to Mrs. Cockcroft on March 10, 1978, she was not the personal representative, and the letter was received in her individual capacity. It cannot be argued that she alone is "... other person entitled to sue . .(.," for there are, in addition to Mrs. Cockcroft, two children who would be beneficiaries of such an action. They were not notified. The ruling that statutory notice was not given is supported by the evidence. The actions taken by U.S.F. did not trigger the statute, or "... operate as an assignment of the cause of action to the carrier." Neither of the two plaintiffs *190 had capacity to sue. We hold that the trial judge correctly ruled that the order of default should be vacated and the action dismissed without prejudice.
Affirmed.
LEWIS, C.J., and NESS, GREGORY and HARWELL, JJ., concur.
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57 Cal. App. 2d 707 (1943)
JOHN MEDEIROS, Respondent,
v.
COCA-COLA BOTTLING COMPANY OF TURLOCK, LTD. (a Corporation), Appellant.
Civ. No. 6664.
California Court of Appeals. Third Dist.
Mar. 18, 1943.
Hawkins & Hawkins & Cardozo for Appellant.
Gregory P. Maushart and Thomas C. Boone for Respondent.
ADAMS, P. J.
Defendant appeals from a judgment in favor of plaintiff for damages in the sum of $500 sustained *709 by reason of personal injuries resulting from drinking a bottle of Coca-Cola manufactured by defendant.
Plaintiff's complaint, which was in two counts, alleged in the first count that defendant was engaged in the business of bottling, selling and distributing Coca-Cola which it sold and distributed to various dealers for the purposes of resale to the general public; that plaintiff had purchased a bottle of Coca-Cola from a dealer in Stanislaus County, which had been bottled by defendant and sold and delivered by it to said dealer; that defendant was careless and negligent in the bottling of said Coca-Cola in that defendant had permitted to remain in said bottle a cleaning brush used by defendant in cleaning bottles, and that said bottle had been sealed by defendant with said cleaning brush enclosed and delivered in that condition to the dealer from whom plaintiff had bought it; that plaintiff "drank a portion of the contents of said bottle of Coca-Cola in which bottle the defendant permitted a cleaning brush to remain, and by reason of the plaintiff drinking a portion of the contents of said bottle as aforesaid he became violently ill and was rendered sick, sore and disabled"; also that by reason of the aforesaid facts it had been necessary for plaintiff to secure the services of a physician for which he had incurred a reasonable indebtedness of $150; and that "by reason of the premises and as a direct and proximate result of the carelessness and negligence of the defendant," plaintiff had been damaged in the sum of $7,500, no part of which had been paid by defendant.
In the second count plaintiff incorporated by reference portions of the first count and then alleged "that the defendant warrants the beverages which it bottles, sells and distributes and particularly the drink known as Coca-Cola as being pure and wholesome, free from all impurities and fit for human consumption"; that plaintiff was unaware that the bottle of Coca-Cola delivered to him contained the said cleaning brush or other foreign substance "and all times relied upon the expressed and implied warranty of the defendant that the said bottle of Coca-Cola was pure and wholesome, free from all impurities and that it was fit for human consumption"; that by reason of leaving the cleaning brush in said Coca-Cola the contents of same became contaminated and unfit for human consumption; that plaintiff drank a portion of the bottle of Coca-Cola in which the defendant permitted the cleaning brush to remain, "and by reason of the plaintiff *710 drinking a portion of the contents of said bottle as aforesaid, he became violently ill and was rendered sick, sore and disabled"; also, "that by reason of the premises and as a direct and proximate result of the breach of warranty by the defendant, plaintiff has been damaged in the sum of $7500.00."
Defendant filed no demurrer to said complaint, but answered denying generally the allegations thereof; and as special defenses set up that plaintiff's injuries, if any, were caused by an unavoidable accident, that plaintiff was negligent and did not use ordinary care in the purchase and consumption of the Coca-Cola, and that such negligence and want of ordinary care contributed proximately to his injury, if any; also that defendant did not warrant to plaintiff any Coca-Cola as being pure, or wholesome, or free from all impurities, or fit for human consumption.
The case was tried before a jury, and at the close of plaintiff's testimony defendant moved for a nonsuit upon the second (warranty) count of the complaint upon the ground that plaintiff had failed to support the allegations thereof in that there was no evidence that the contents of the bottle were unfit for human consumption; and upon the first (tort) count upon the ground that it did not state a cause of action in that there was nothing to show a causal connection between the negligent leaving of the brush in the bottle, and the drinking of the Coca-Cola, and defendant's becoming ill. Defendant's motion was denied. After verdict for plaintiff, defendant moved for a new trial upon all of the statutory grounds, which motion was also denied.
On this appeal it is contended by appellant that the judgment should be reversed because the court erred in refusing to grant a nonsuit (a) as to the tort action because the complaint did not state a cause of action and the evidence was not sufficient to support a verdict, (b) as to the action for breach of warranty because the evidence was not sufficient to support a verdict. Also that the evidence was not sufficient to support a verdict, that the court gave the jury erroneous instructions, and gave conflicting instructions on material issues. We shall consider these contentions in the order in which they are presented by appellant.
[1] As to whether a nonsuit should have been granted on the first cause of action, the record shows that the only ground upon which defendant's motion was predicated was that a *711 cause of action is not stated, it being urged that the mere fact that a person after drinking a bottle of Coca-Cola with a brush in it becomes ill is not sufficient to state a cause of action; that there must be something to show a causal connection between the negligent leaving of a brush in the bottle and drinking the Coca-Cola and becoming sick. On said motion it was not urged as to this count that the evidence was not sufficient to support a verdict.
We cannot say that said count failed to state a cause of action. Defendant did not demur to the complaint, and we note that as to the second count counsel for defendant stated to the trial court that it was not demurrable "on its face," but showed a "good cause of action"; and the allegation therein as to the effect of plaintiff's drinking the Coca-Cola was the same, to wit: That "by reason of the plaintiff drinking a portion of the contents of said bottle as aforesaid he became violently ill and was rendered sick, sore and disabled." If the allegation was sufficient in the one count, it was sufficient in the other; and had defendant desired a fuller statement it could have demurred on the ground of insufficiency. In the absence of a special demurrer the allegations are sufficient to constitute a cause of action, and the court properly denied the motion for nonsuit on that ground.
[2] As to the contention of defendant on its motion for a nonsuit under the second count, that the evidence was insufficient to support the allegation that the contents of the bottle were unfit for human consumption, that the presence of the cleaning brush in the Coca-Cola did not make it so unfit, and that there was, therefore, no breach of the implied warranty that the drink was "reasonably fit" for human consumption, it is urged that the liquid itself was not contaminated by the presence of the brush and that, though seeing the brush in the bottle (which plaintiff thought was a spider) caused a shock which made plaintiff ill, the product was nevertheless fit for human consumption and there was no breach of the implied warranty that the beverage was "reasonably fit" for the purpose for which it was required. (Sec. 1735, Civ. Code.) We are not impressed with this contention, nor do we believe that it can be said with reason that a beverage containing a cleaning brush or other similar foreign object or substance is "reasonably fit" for beverage purposes. An analysis of the contents of the bottle of Coca-Cola in controversy, made by defendant's own witness, showed that it *712 contained traces of ferric and zinc phosphate from the metal on the brush, sufficient to give it a bitter taste.
In Delta Nehi Bottling Co. v. Lucas, 184 Miss. 693 [185 So. 561], a bottle of R. C. Cola purchased by plaintiff contained a metal object having the appearance of a corroded paper clip covered with a greenish substance. After drinking a portion of the contents plaintiff discovered the object and was thereupon seized with vomiting, etc. At the trial her physician disclaimed any knowledge that the foreign substance in the bottle was actually poisonous, and averred that it was the drink in the condition in which it appeared to be which caused a gastric upset and became the contributing cause of an aggravation of pyelitis to which plaintiff was subject. There was medical testimony that a normal person would sometimes become nauseated when seeing a disgusting object in a container from which he had drunk, a fact which the court said a jury would know without medical testimony. And it was there held that the evidence was sufficient to sustain the verdict of the jury in favor of plaintiff. The court also held in that case that if the conduct of the warrantor of a drink for human consumption is a substantial factor in bringing about harm to another, the fact that the warrantor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred, does not defeat liability; and that a negligent warrantor of a drink may be liable for harm to another although the physical condition of the other makes the injury greater than that which the actor as a reasonable man should have foreseen.
In Coca-Cola Bottling Co. v. Jenkins, 190 Ark. 930 [82 S.W.2d 15], where plaintiff drank part of a bottle of Coca-Cola which contained a decomposed cockroach, it was urged by defendant upon appeal that one of the instructions of the trial court was erroneous in that it assumed that the contents of the bottle were poisonous and unwholesome--a matter in controversy; but judgment for plaintiff was affirmed.
In Carbone v. California Packing Corp. (N. J.), 169 A. 866, a judgment for plaintiff was affirmed in a case where it was shown that plaintiff became ill after eating part of a can of peaches put up by defendant which contained a medicated finger bandage of gauze impregnated with some drug, though it was not shown that the portion of the contents eaten by plaintiff was itself unfit for human consumption.
In Fisher v. Washington Coca-Cola Bottling Works, 84 *713 F.2d 261 [105 A.L.R. 1034], a bottle of Coca-Cola sold to plaintiff contained a moldy substance, spongy and soft. Plaintiff, after drinking a portion of the beverage, became ill. The Court of Appeals for the District of Columbia reversed a directed verdict for defendant, saying that the case should have been submitted to the jury; that it was not distinguishable from Chevy Chase Dairy v. Mullineaux, 71 F.2d 982, where broken glass was found in a bottle of milk, even though broken glass is harmful to the human body, while the foreign body found in the Coca-Cola was not shown to have been harmful.
In Coca-Cola Bottling Works of Evansville v. Williams, __________ Ind.App. __________ [37 N.E.2d 702], a bottle of Coca-Cola containing concrete was sold to plaintiff, and illness resulted from drinking same, culminating in nervous gastritis. A judgment for plaintiff was sustained though it was not shown that the concrete rendered the Coca-Cola itself unfit for human consumption.
In Sullivan v. Coca Cola Bottling Co. of Chicago, 313 Ill. 517 [40 N.E.2d 579], a bottle of Coca-Cola sold to plaintiff contained the metallic base of an automobile electric light bulb, and after drinking a portion of the bottle plaintiff became ill. There was no evidence that the metal had actually contaminated the Coca-Cola, but the case was held to be one for the jury.
We also note that though in Reese v. Smith, 9 Cal. 2d 324 [70 P.2d 933], it was held that the presence of maggots on sausage did not prove that the sausage itself was filthy, decomposed and unfit for human consumption, and that maggots themselves are not poisonous, that in Klein v. Duchess Sandwich Co., Ltd., 14 Cal. 2d 272, 282 [93 P.2d 799], the court said that it should at once be apparent that food which is covered with maggots is not wholesome nor fit for human consumption, and that if plaintiff partook of a sandwich so infested and became ill, there was abundant authority for the affirmation of a judgment for damages in such case either on the theory of negligence or on that of implied warranty under section 1735 of the Civil Code.
Plaintiff testified that on taking the Coca-Cola he found it to have a bitter taste, and that on examining it he saw something in it which he thought to be a bug or a spider; that he "got kind of nervous" thinking he had swallowed a *714 part of "that dirty bug"; that later he vomited and had pain in his stomach; that he vomited for over a week, and whenever he thought of how the bottle looked he would get upset and vomit. His attending physician found that he had a recurrence of a pre-existing ulcer, and testified that if a man receives a sufficient shock to cause him to vomit it might cause a recurrence of an ulcer; that in his opinion plaintiff received a nervous shock which started vomiting, and caused an irritation which probably lighted up an old ulcer. It is true that he did say that the liquid itself which plaintiff drank had nothing to do with the condition that developed in plaintiff's stomach, but that his idea was that seeing the brush in there and the shock made plaintiff ill.
Defendant's contention seems to be that however noisome and disgusting a foreign object found in a beverage may be or appear, the manufacturer of such beverage cannot be held liable for negligence in permitting such object to be in his product unless the contents of the bottle are themselves rendered unfit for human consumption; and that regardless of the effect of the finding of such object in a bottle from which he has drunk, a party cannot recover damages for sickness resulting therefrom, unless he is actually poisoned or otherwise injuriously affected by the drink itself. [3] We think that a court may well take judicial notice that even a normal person in seeing a disgusting looking object in a bottle from which he has just drunk may and often will suffer intense nausea which may produce more serious results. [4] Also one may recover for injury resulting from mental shock in such cases. In Dryden v. Continental Baking Co., 11 Cal. 2d 33 [77 P.2d 833], plaintiff ate bread manufactured by defendant, which bread contained glass. The court said that even were plaintiff's injuries confined to nervous shock, the right to recover for subsequent disturbances of the nervous system is settled. Also see Taylor v. Pole, 16 Cal. 2d 668, 671 [107 P.2d 614], and Cook v. Maier, 33 Cal. App. 2d 581, 584 [92 P.2d 434].
[5] In support of its contention that the evidence does not support the verdict of the jury, appellant urges that it introduced evidence that the standard of conduct of defendant in the manufacture of Coca-Cola was the same as the fair average of all manufacturers of the drink, that evidence offered excluded the possibility that the brush was left in the bottle by defendant, that there is no direct evidence that *715 defendant bottled the questioned Coca-Cola. Without reviewing the evidence on these points it is sufficient to say that evidence that the standard of conduct of defendant in the manufacture of its product is the same as the fair average of all manufacturers of the drink is not conclusive.
There are numerous cases holding that the unexplained presence of a foreign object or substance in bottled or packaged goods is a sufficient basis for an inference of negligence on the manufacturer's part to send the case to the jury. (Linker v. Quaker Oats Co., 11 F. Supp. 794, 105 A.L.R. 1039 n.; Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114 [145 A. 700]; Dryden v. Continental Baking Co., 11 Cal. 2d 33, 38, supra.) And as to whether the evidence offered by defendant excluded the possibility that the brush was left in the bottle by defendant, and whether defendant manufactured the questioned bottle, these questions were for the jury, and we cannot say that there was not sufficient evidence to justify their verdict.
[6] It is further argued that defendant could not have foreseen that the leaving of the brush in the bottle would produce the effects upon plaintiff shown here to have resulted, because the injury claimed by plaintiff is not the natural and probable consequence of the wrongful act; and it is urged that a high degree of caution was not imposed upon defendant as producer. But there is substantial authority for holding that a higher degree of care is required of the producer of foods and beverages than is usually made applicable in other charges of negligence. (Dryden v. Continental Baking Co., 11 Cal. 2d 33, 38 [77 P.2d 833]; Bissonette v. National Biscuit Co., 100 F.2d 1003; Ward Baking Co. v. Trizzino, 27 Ohio App. 475 [161 N.E. 557]: Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114 [145 A. 700].)
[7] Appellant's complaint about the instructions appears to be that those given at plaintiff's request deal solely with the facts of the case in relation to negligence; that the court erroneously instructed, at plaintiff's request, that a high degree of care is imposed upon a manufacturer of food to see that same is free from deleterious substances, as it contends defendant was obliged to use only ordinary care; that instructions given at plaintiff's request on the measure of damages were faulty, and that there were conflicting instructions. No complaint is made that the court refused to give any of the *716 instructions requested by defendant, and we believe that the instructions proposed by defendant and given by the court were extremely favorable to defendant. No reasonable complaint can be made that plaintiff did not propose instructions on the subject of warranty, as he was under no obligation to do so. The instruction regarding the degree of care imposed upon a manufacturer of food is consistent with cases hereinbefore cited, especially Dryden v. Continental Baking Co., supra, and furthermore the court gave, at defendant's request, an instruction embodying the standard of ordinary care. Since something more than ordinary care is demanded of a manufacturer of food, defendant is in no position to complain of conflict in this respect. On the measure of damages the court, at defendant's request, gave instructions embodying the provisions of subdivision (6) of section 1789 of the Civil Code on measure of damages on breach of warranty, and section 3300 of the Civil Code on breach of obligation arising from contract. It also gave, at defendant's request, instructions on unavoidable accident and contributory negligence, though there was no evidence of the latter and only the negative testimony of inability to explain how the cleaning brush got into the bottle, to support the former.
Insofar as other alleged conflicts in instructions are concerned, we cannot say that there was any error that resulted in a miscarriage of justice or that justifies a reversal, in view of section 4 1/2 of article VI of the Constitution. The judgment and the order denying a new trial are affirmed.
Schottky, J. pro tem., and Thompson, J., concurred.
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21 Cal. 2d 760 (1943)
THE PEOPLE, Respondent,
v.
JUNE COSTELLO, Appellant.
Crim. No. 4432.
Supreme Court of California. In Bank.
Mar. 25, 1943.
Kenneth C. Zwerin and Fabian D. Brown for Appellant.
Earl Warren, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent.
SHENK, J.
The defendant has appealed from a judgment of conviction on a charge of grand theft, and from an order denying her motion for a new trial. She does not contend that the evidence on behalf of the prosecution, if believed by the jury, was not sufficient to support the verdict. The grounds of the appeal are that the court erred prejudicially in rulings on the admission of evidence and in giving a certain instruction on the defense of alibi.
The evidence in support of the verdict was substantially as follows: About 9:20 p.m. on May 12, 1941, the prosecuting witness De Matei was walking toward his home. At the corner of Queseda and Jennings Streets in San Francisco he was accosted by a colored woman who was riding in an automobile which she brought to a stop on her left hand side of Jennings Street. She asked whether De Matei knew an accordion player in the neighborhood named Tony. He replied in the negative. She then alighted from the car and asked De Matei whether she had a flat tire. While his attention was diverted, she took a wallet containing $12 out of the back pocket of his trousers. She jumped into the car. In her haste in driving away she collided with an approaching *762 car. She immediately backed up and drove away. The prosecuting witness identified the defendant as the colored woman who had taken his wallet.
The corner of Queseda and Jennings Streets was not well-lighted, and the occupants of the other car were unable to identify positively the license number of the car which collided with theirs. Allen, a witness for the prosecution, lived in the same apartment house as the defendant and had on two occasions permitted her to use his car, but testified that he did not loan it to her on the night of May 12th. The defendant testified that she was in her home the entire evening of May 12th. A witness, Gilroy, testified that he had called to see the defendant's husband between 9 and 9:30 that night and that the defendant talked with him from the window of the apartment.
[1] The trial court instructed the jury on the subject of alibi as follows:
"The effect of an alibi, when established, is like that of any other conclusive fact presented in a case, showing as it does that the party asserting it could not have been at the scene of the crime, and therefore could not have participated in it, which is, when credited, a defense of the most conclusive and satisfactory character. The fact, however, which experience has shown, that an alibi as a defense is capable of being and has been occasionally successfully fabricated, that even when wholly false its detection may be a matter of very great difficulty, and that the temptation to resort to this as a spurious defense may be very great, especially in cases of importance,--these are considerations attendant upon this defense which call for some special suggestions upon the part of the Court. Hence I respectfully suggest to you ladies and gentlemen of the jury that while you are not to hesitate at giving this as a defense full weight, that conclusive effect to which, when established, it is justly entitled, either as entirely satisfying you of the innocence of the defendant, or as creating a reasonable doubt which entitles the defendant to an acquittal, still you are to scrutinize the testimony offered in support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you."
The foregoing instruction was taken practically verbatim *763 from the instruction involved in the case of People v. Lee Gam, 69 Cal. 552 [11 P. 183], where a conviction of murder was sustained. In that case, in holding that the giving of the instruction was not error, the court said that it did "not appear that the jury were instructed upon the weight of evidence." The court adopted the language just quoted from People v. Wong Ah Foo, 69 Cal. 180, 183 [10 P. 375], which, however, involved a different instruction on alibi. The instruction in the Wong case in effect left to the jury the same consideration of alibi as of other evidence. Apparently the Lee Gam case has been the basis for the instruction objected to herein or a similar instruction in subsequent cases. But since the decision in that case, and beginning with People v. Levine, 85 Cal. 39 [22 P. 969, 24 P. 631], the courts have consistently criticized and in some cases held to be prejudicially erroneous, any instruction which told the jury that evidence given in support of an alibi was to be "scrutinized otherwise or differently from that given in support of any other issue," or which suggested to the jury that the defendant must prove an alibi by a preponderance of the evidence, or that alibi evidence must satisfy the jury of the defendant's innocence, or that the jury must disparage or give less weight to alibi evidence than to other evidence. (See People v. Lattimore, 86 Cal. 403 [24 P. 1091]; People v. Roberts, 122 Cal. 377 [55 P. 137]; People v. Winters, 125 Cal. 325 [57 P. 1067]; People v. Smith, 189 Cal. 31 [207 P. 518]; People v. Arnold, 199 Cal. 471 [250 P. 168]; People v. Johnson, 203 Cal. 153 [263 P. 524]; People v. Wing, 31 Cal. App. 785 [161 P. 759]; People v. Purio, 49 Cal. App. 685 [194 P. 74]; People v. Barr, 55 Cal. App. 321 [203 P. 827]; People v. Girotti, 67 Cal. App. 399 [227 P. 936]; People v. Nichols, 69 Cal. App. 214 [230 P. 997]; People v. Hammer, 74 Cal. App. 345 [240 P. 56]; People v. Garrett, 93 Cal. App. 77 [268 P. 1071]; People v. Thorp, 104 Cal. App. 379 [285 P. 916]; People v. Gist, 28 Cal. App. 2d 287 [82 P.2d 501].)
In the Levine case it was said that had the verdict turned upon the truth or falsity of the evidence given in support of the defense of alibi, the court would be inclined to hold that the instruction was erroneous to a degree entitling the defendant to a reversal of the judgment "for," said the court, "the defense of alibi is, in our judgment, not one requiring *764 that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in a cause." In People v. Lattimore the court referred to the Levine case and said: "We again repeat that the defense of alibi is 'not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in the cause'; and we may add that if trial courts will cease to give this particular form of instruction, the ends of justice will be equally as well subserved, and the administration of the laws less embarrassed."
In the Roberts case we find this language: "When a jury is told that any particular fact must be established to their satisfaction, such statement can only mean that such fact must be established at least by a preponderance of evidence; yet there is no such burden cast upon a defendant charged with a crime, except in certain particular instances which are in no sense presented here. It is for the people to make a case against the defendant beyond a reasonable doubt, and the element of alibi is included in the case which the law demands the people to make out, equally with all other parts of it. ... It is thus apparent that the alibi, to be efficacious to a defendant, need not be 'satisfactorily proven,' and need not be established to the satisfaction of the jury." In the Garrett case the court quoted the language from the Lattimore case and said: "There is no reason why evidence tending to show that at the time of the commission of the offense the defendant was at another place than that at which it was committed so that he could not have been a party thereto should be scrutinized differently from any other proof."
In the Girotti case the court repeated the language from People v. Levine, People v. Lattimore, and People v. Roberts, and added: "The instruction not only casts an unwarranted burden upon the defendant but casts suspicion upon his defense and the evidence produced in support thereof. It is essentially an argument against the defendant, legitimate if made by the district attorney, but an invasion of the province of the jury when made by the court. ... The instruction should never be given." The criticism voiced in the foregoing cases was referred to in People v. Arnold, and in People v. Nichols. In the Arnold case this court took occasion *765 to say to district attorneys who continue to offer and to trial courts who continue to give the criticized instruction, "that in so doing they assume an unnecessary risk." In the Johnson case it was remarked that the instruction reviewed in the Arnold case was given "in the instant case notwithstanding the observation we made in the case last cited." The note of warning was again sounded in People v. Gist. It was observed in the Thorp case that the instruction on alibi was similar to that given in the Lee Gam case. The court, citing the Roberts, Smith, Arnold and Girotti cases said: "This instruction has been criticized in many cases and should not be given."
It is difficult to understand why the severely criticized instruction still is utilized by district attorneys and trial courts in cases involving alibi evidence. If the repeated disregard of the reviewing courts' adverse criticism of the instruction is prompted by the hope that in the particular case the court will conclude that the instruction has not prejudiced the defendant's rights, the hope is not commensurate with the risk of reversal. It may not be assumed that the failure to heed the admonitions of the reviewing courts is due to ignorance of the repeated and uniform denunciation of the instruction. In view of the consistent criticism to which it has been subjected both before and after the adoption of section 19 of article VI of the Constitution in 1934, the instruction cannot be deemed a justifiable comment by the judge "on the evidence and the credibility of a witness" as contemplated by the constitutional amendment. The instruction did not purport to be such a comment. It purported to be a statement of the law but in reality it was a misstatement of the law.
[2] It is elemental that in criminal cases the prosecution must prove the defendant's guilt beyond a reasonable doubt. If the defendant introduces evidence of an alibi which is sufficient to create a reasonable doubt in the minds of the jury and it does create such a doubt, he is entitled to a verdict of acquittal. Thus, where the evidence of alibi conflicts with the evidence connecting the defendant with the crime and an instruction is given which deprives the jury of its freedom of judgment on the weight to be accorded alibi evidence, or on the credibility of witnesses testifying to the facts of alibi, error is committed which is prejudicial to the defendant's rights. A suggestion may not *766 be made to the jury that an alibi must be proved by a preponderance of the evidence, or that alibi evidence must satisfy the jury of the defendant's innocence, or that the jury must give less credit to testimony of alibi witnesses, or more careful scrutiny or less weight to alibi than to other evidence in the case. It is obvious that in cases where the defendant's own testimony supports the verdict of guilty (People v. Hammer, 74 Cal. App. 345 [240 P. 56]), or where there is no evidence in support of the alibi (People v. Smith, 189 Cal. 31 [207 P. 518]; People v. Johnson, 203 Cal. 153 [263 P. 524]), the giving of an erroneous instruction on the subject of alibi should not be held to prejudice the rights of the defendant. But in cases where the evidence raises a conflict it may not properly be said that the harm resulting from the giving of such an instruction is overcome by general instructions so as to justify on that ground alone an affirmance pursuant to section 4 1/2 of article VI of the California Constitution. (See People v. Garrett, 93 Cal. App. 77 [268 P. 1071]; People v. Nichols, 69 Cal. App. 214 [230 P. 997]; People v. Girotti, 67 Cal. App. 399 [227 P. 936]; People v. Thorp, 104 Cal. App. 379 [285 P. 916].)
In the present case the giving of the instruction complained of was prejudicial error. There was before the jury evidence of an alibi. The defendant's testimony did not connect her with the crime. The prosecution failed to show, except by conjecture, that the car driven by the person who committed the theft was the car belonging to the witness Allen, or that Allen, assuming that he was the owner, had permitted the defendant to use the vehicle on the night of the theft. The defendant was entitled to have the benefit of the weaknesses developed in the prosecution's case and to the benefit of her own evidence on the issue of alibi, uninfluenced by the erroneous instruction.
In view of the foregoing it becomes unnecessary to consider the objectionable rulings on the admission of certain impeaching evidence introduced by the prosecution. Such errors are not likely to recur in the event of another trial.
The judgment and order are reversed.
Gibson, C.J., Curtis, J., Edmonds, J., Carter, J., Traynor, J., and Griffin, J. pro tem, concurred.
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120 S.E.2d 730 (1961)
255 N.C. 274
CITY OF REIDSVILLE
v.
CITIZENS DEVELOPMENT CORPORATION.
No. 674.
Supreme Court of North Carolina.
July 7, 1961.
*731 Jule McMichael and T. M. Rankin, Reidsville, for plaintiff, appellee.
Benjamin R. Wrenn, Reidsville, for defendant, appellant.
MOORE, Justice.
Plaintiff proposes to convey 155.52 acres of land known as the Reidsville Airport property, under authority of G.S. § 63-53 (d) and G.S. § 160-59. On 15 November 1960 the City Council of the City of Reidsville adopted a resolution finding that the City "no longer had any need for * * * the Airport property," and ordering that it be sold at public auction subject to specific conditions and covenants restricting its use to industrial and commercial purposes. Due advertisement of the sale and the terms thereof was had. Defendant became the last and highest bidder at the price of $45,000, deposited ten per cent of the bid, and executed a contract in which it agreed to purchase the land according to the terms of sale and at the price bid. The sale was confirmed. Plaintiff executed and tendered to defendant a deed for the land containing the restrictions. Defendant refused to pay the balance of the purchase price and accept the deed. This action for specific performance was instituted and the judgment set out above was entered. Defendant excepts to the signing of the judgment.
The admissions in the pleadings and the facts stipulated are insufficient to support the findings and conclusions of the court that "* * * the Mayor and City Council of the City of Reidsville had the legal power and authority to sell its real property known as the `Airport Property' * *," and that "* * * said property is surplus city property."
"Where, as here, a case is tried on an agreed statement of facts, such statement is in the nature of a special verdict, admitting there is no dispute as to the facts, and constituting a request by each litigant for a judgment which each contends arises as a matter of law on the facts agreed, and consequently the court is not permitted to infer or deduce further facts from those stipulated." Sparrow v. American Fire & Casualty Co., 243 N.C. 60, 62, 89 S.E.2d 800, 801. Where agreed facts are insufficient to determine the controversy, the cause will be remanded for further proceedings as the rights of the parties may require. Trustees of Guilford College v. Guilford County, 219 N.C. 347, 349, 13 S.E.2d 622.
It does not appear from the record whether the 155.52 acres known as the Airport property was acquired by the City of Reidsville from funds realized from the bond issue approved by this Court in Turner v. City of Reidsville, 1944, 224 N.C. 42, 29 S.E.2d 211, or by other means, whether there are presently any outstanding airport bonds, whether it is the entire tract originally acquired for airport purposes, whether *732 an airport is now being operated on a portion of the original tract with the 155.52 acres being surplus property not needed in that connection, whether an airport is being operated on other and separate property and this tract is no longer necessary for airport purposes, whether Reidsville has ever constructed, maintained, and operated an airport, or whether an airport was formerly operated and was before 15 November 1960 abandoned.
Quaere: Is the proposed sale subject to the provisions of G.S. § 160-2, subsec. 6?
The judgment below is vacated and the cause is remanded for further proceedings and that sufficient evidence may be adduced to support a judgment determining the controversy.
Remanded.
PARKER and HIGGINS, JJ., dissent.
RODMAN, Justice (concurring).
It is apparent from the briefs and oral argument that the parties hope for an affirmance of the judgment, thereby securing a declaration from this Court that the deed tendered defendant will vest good title subject to covenants restricting the use of the property to industrial purposes.
Neither the pleadings nor the facts stipulated suffice to give an answer to the crucial question seemingly presented by the appeal. That question is: May a municipal corporation which has, with the approval of the electorate, incurred a debt to provide airport service, by order of the city council cease to furnish such service, sell the property, and use the proceeds in such manner as the city council may desire?
The parties stipulated: "That said property is surplus city property no longer needed by the city and should be sold by the city. That said property is no longer needed for an airport. That said property is a mile from the city limits and is not needed for any Governmental or public Purpose." Do the parties by this stipulation mean this property is not needed as an airport, a public purpose, because this public purpose has been filled by other properties dedicated to that purpose or do they mean that the city council can set at nought the will of the people and contrary to their direction dispose of property which the electorate has directed the city to acquire for a specific public purpose?
As early as 1929 the Legislature granted municipalities authority to acquire, own, and regulate airports or landing fields for the use of airplanes and other aircraft, c. 87, P.L.1929, now G.S. § 63-2. The statute declared an expenditure so made was for a public purpose. G.S. § 63-5. This legislative declaration had judicial concurrence. Goswick v. City of Durham, 211 N.C. 687, 191 S.E. 728; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211; City of Reidsville v. Slade, 224 N.C. 48, 29 S.E.2d 215 (presumably the property here proposed to be sold is the property involved in that litigation); Greensboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803.
The complaint alleges that the city council purported to act under the authority given by G.S. § 160-59, which provides: "The governing body of any city or town shall have power at all times to sell at public outcry, after thirty days' notice, to the highest bidder, any property, real or personal belonging to any such town, and apply the proceeds as they may think best." This statute has been in effect since 1873. It has never been interpreted to authorize the sale of property purchased for a specific purpose when needed to accomplish that purpose. It permits the sale of such property as may not be needed in the continuing performance of the service undertaken. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484; City of Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328; City of Southport v. Stanly, 125 N.C. 464, 34 S.E. 641.
In 1945 the Legislature enlarged the authority of local governmental units to provide *733 aeronautic facilities. C. 490, S.L.1945, now in substance art. 6, c. 63, of the General Statutes. Section 6 of that Act, now G.S. § 63-53, titled "Specific powers of municipalities operating airports," gives the municipality authority to (a) appoint an officer or board to supervise the construction and operation of the airport, (b) adopt rules and regulations for the efficient operation of the facility, (c) lease to private or other governmental agencies for operation, and (d) "sell or lease any property, real or personal, acquired for airport purposes and belonging to the municipality, which, in the judgment of its governing body, may not be required for aeronautic purposes * * *." (Emphasis added.) Each part is predicated on the assumption of continuing service.
G.S. § 63-48 defines the word "aeronautics" as "transportation by aircraft; the * * * operation, improvement, repair, or maintenance of airports * * *." § G.S. 63-53 does not, in my opinion, authorize the city council to decide whether the municipality, having once undertaken to provide aeronautic facilities, should continue to provide such service. The statute presupposes the continuance of such service. The facts necessary to determine whether there is need for a particular service and the need for a particular piece of property to provide the service are not identical. The Legislature carefully limited the authority of the governing authorities to a decision of what was not needed for the performance of the service. City of Winston-Salem v. Smith, supra; Mullen v. Town of Louisburg, supra.
Municipalities have legislative permission to perform many public services, proprietary in nature. Illustrative are: playground and recreational facilities, G.S. § 160-158; public parking lots, G.S. § 160-200(31); market houses, G.S. § 160-167; art galleries, G.S. § 160-200(40); parks, G.S. § 160-200(12); light and water to patrons outside as well as within the corporate limits, G.S. § 160-255; public hospitals, G.S. § 131-126.20; housing facilities, G.S. § 157-42. Some of the services authorized are necessary expenses; others are not. Where the service is not a necessary expense, the governing authorities must permit the electorate to decide whether a debt shall be created to provide the service. When citizens of a municipality have voted to acquire properties needed to provide these services, the governing authorities are not authorized to defeat popular will by declaring the service no longer needed and in this manner obtain authority to sell on the theory that the property is surplus property. Moore v. Gordon, Tex. Civ.App., 122 S.W.2d 239; Bremerton Municipal League v. Bremer, 15 Wash.2d 231, 130 P.2d 367.
If the city fathers would sell the property and thereby disable the community from rendering the service as directed by the electorate, special legislative authority must be obtained. Perhaps the Legislature in its wisdom has already provided the means by which the governing authorities may act. They are authorized, with the approval of a majority of the qualified voters of the town to "sell or lease, upon such conditions and with such terms of payment as the city or town may prescribe, any waterworks * * or any other public utility which may be owned by the city or town." G.S. § 160-2(6).
An airport acquired and maintained by a municipality meets the test of a public utility as defined by our decisions. State ex rel. North Carolina Utilities Comm. v. New Hope Road Water Co., 248 N.C. 27, 102 S.E.2d 377; Turner v. North Carolina Public-Service Co., 170 N.C. 172, 86 S.E. 1033. It has been so held when the specific question was presented. State ex rel. City of Lincoln v. Johnson, 117 Neb. 301, 220 N.W. 273; State ex rel. Chandler v. Jackson, 121 Ohio St. 186, 167 N.E. 396; Price v. Storms, 191 Okl. 410, 130 P.2d 523; State ex rel. Helsel v. Board of County Com'rs, Ohio Com.Pl., 79 N.E.2d 698; Jones v. Keck, 79 Ohio App. 549, 74 N.E.2d 644.
*734 The facts stipulated are in my opinion insufficient to determine the right of the governing authority to order a sale. If the property is not needed for the operation of an airport, the mere fact that the city restricted the purchaser's right to use for a fixed period to industrial uses would not impair the title.
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103 Ga. App. 786 (1961)
120 S.E.2d 778
NATIONAL LINEN SERVICE CORPORATION
v.
THOMPSON, Tax Commissioner.
38785.
Court of Appeals of Georgia.
Decided May 19, 1961.
Rehearing Denied June 2, 1961.
*788 Haas, Holland & Zinkow, William M. Sinrich, for plaintiff in error.
Eugene Cook, Attorney-General, Ben F. Johnson, Robert W. Goodman, Deputy Assistant Attorneys-General, Harold Sheats, contra.
*789 Smith, Kilpatrick, Cody, Rogers & McClatchey, George B. Haley, Jr., amicus curiae.
CARLISLE, Judge.
1. The plaintiff in error assigns error on the judgment dismissing its affidavit of illegality on the grounds that the court erred in holding "that the assessment and collection of such tax does not violate the Constitution of the State of Georgia and the Constitution of the United States." In the affidavit of illegality it was contended that the cash and accounts receivable located at the defendant in fi. fa.'s branches outside the State of Georgia had acquired a business or commercial situs outside the State, and that the proposed taxation of such assets would violate the Fourteenth Amendment of the Constitution of the United States and Art. 1, Sec. 1, Par. 3 of the Constitution of the State of Georgia.
While, of course, under the ruling of the Supreme Court made in transferring this case from that court to the Court of Appeals (National Linen Service Corp. v. Thompson, 216 Ga. 550, 118 S.E.2d 486), the affidavit of illegality and the assignment of error on the judgment overruling the same were insufficient to raise any question as to the constitutionality of the provisions of the act under which the assessment was made, such pleading was, nevertheless, sufficient to raise an issue as to whether the levy and assessment of the tax in question violated the defendant's constitutional rights as pleaded. This latter question is one within this court's jurisdiction.
To sustain its contention the defendant invoked, as to these particular intangibles, the so-called "single taxable situs rule." This rule, however, has no application to intangible property, but is limited in its application to tangible property. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 205 (26 S. Ct. 36, 50 L. Ed. 150); Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325, 329 (40 S. Ct. 558, 64 L. Ed. 931); Curry v. McCanless, 307 U.S. 357, 368 (59 S. Ct. 900, 83 L. Ed. 1339). Consonant with the foregoing rule it has long been recognized that the fact that intangibles may be taxed in one jurisdiction or may be subject to tax in such jurisdiction does not necessarily exclude liability of the holder of such intangibles to a direct tax, or a tax measured directly or indirectly upon the amount of such *790 intangibles levied by the jurisdiction where the owner of such intangibles may be domiciled. As was said by Mr. Justice Holmes in Fidelity & Columbia Trust Co. v. City of Louisville, 245 U.S. 54, 58 (38 S. Ct. 40, 62 L. Ed. 145) (paraphrased): Such a tax is a tax upon the holder, or owner, of the intangibles, and is imposed for the general advantages of living or being domiciled within the jurisdiction imposing the tax. These advantages may be measured more or less by reference to the wealth of the person or corporation taxed. Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325, supra. In Curry v. McCandless, 307 U.S. 357, supra, pp. 367, 368, the Supreme Court of the United States speaking through Mr. Justice Stone, summed up the reasons behind the rule in plain and understandable language as follows: "In cases where the owner of intangibles confines his activity to the place of his domicile it has been found convenient to substitute a rule for a reason, cf. New York ex rel. Cohn v. Graves, 300 U.S. 308, 313; First Bank Stock Corp. v. Minnesota, 301 U.S. 234, 241, by saying that his intangibles are taxed at their situs and not elsewhere, or, perhaps less artificially, by invoking the maxim mobilia sequuntur personam, Blodgett v. Silberman [277 U.S. 1], supra; Baldwin v. Missouri [281 U.S. 586], supra, which means only that it is the identity or association of intangibles with the person of their owner at his domicile which gives jurisdiction to tax. But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains, and the rule is not even a workable substitute for the reasons which may exist in any particular case to support the constitutional power of each state concerned to tax. Whether we regard the right of a state to tax as founded on power over the object taxed, as declared by Chief Justice Marshall in McCulloch v. Maryland [4 Wheat. 316], supra, through dominion over tangibles or over persons whose relationships are the source of intangible rights; or on the benefit and protection conferred by the taxing sovereignty, or both, it is undeniable that the state of domicile is not deprived, by the taxpayer's activities elsewhere, of its constitutional jurisdiction to *791 tax, and consequently that there are many circumstances in which more than one state may have jurisdiction to impose a tax and measure it by some or all of the taxpayer's intangibles. Shares of corporate stock may be taxed at the domicile of the shareholder and also at that of the corporation which the taxing state has created and controls; and income may be taxed both by the state where it is earned and by the state of the recipient's domicile. Protection, benefit, and power over the subject matter are not confined to either state. The taxpayer who is domiciled in one state but carries on business in another is subject to a tax there measured by the value of the intangibles used in his business. New Orleans v. Stempel, 175 U.S. 309; Bristol v. Washington County, 177 U.S. 133; State Board of Assessors v. Comptoir National, 191 U.S. 388; Metropolitan Life Ins. Co. v. New Orleans, 205 U.S. 395; Liverpool & L. & G. Ins. Co. v. Board, 221 U.S. 346; Wheeling Steel Corp. v. Fox, 298 U.S. 193; cf. Blodgett v. Silberman, supra; Baldwin v. Missouri, supra. But taxation of a corporation by a state where it does business, measured by the value of the intangibles used in its business there, does not preclude the state of incorporation from imposing a tax measured by all its intangibles. Cream of Wheat Co. v. Grand Forks, supra, 329; see Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54." For some of the cases reaching a similar result, see Graves v. Elliott, 307 U.S. 383 (59 S. Ct. 913, 83 L. Ed. 1356); Newark Fire Ins. Co. v. State Board of Tax Appeals, 307 U.S. 313 (59 S. Ct. 918, 83 L. Ed. 1312); Greenough v. Tax Assessors of Newport, 331 U.S. 486 (3) (67 S. Ct. 1400, 91 L. Ed. 1621). As was said in the latter case, the benefits bestowed upon the taxpayer by the domiciliary State justified the imposition of the tax. The assessment and levy of the tax in this case did not violate any of the defendant's constitutional rights.
2. Does the law of this State in fact impose a tax on the intangibles here in question? Under the provisions of Section 2 of the act approved March 18, 1941, a property tax was levied for the year 1942 and annually thereafter at the rate of $1 upon each $1,000 of the fair market value of all stocks in foreign corporations and all stocks in foreign domesticated corporations as of the first day of January without any deduction *792 of any indebtedness or liability of the taxpayer. This act contained the provision, however, that the stock of a domesticated foreign corporation would not be subject to the tax therein levied if such domesticated foreign corporation shall pay to the State of Georgia or to its political subdivisions, as now provided by law, among other things, a tax on all their intangible property, irrespective of the physical location of the same. Code Ann. § 92-117.2. It will readily be observed, of course, that this section does not in and of itself impose any tax on the intangible property of a domesticated foreign corporation. The meaning of the words, "A tax on all their intangible property irrespective of the physical location of the same" can only be ascertained by reference to other provisions of the law. Basically then, the only other question in this case is, plainly and simply, when the taxpayer elected to pay taxes under the alternative provisions of this law, upon what intangibles was the tax due?
Both parties concede that the position of the defendant, a foreign domesticated corporation, is no better and no worse than the position of a domestic corporation. In other words, the defendant having elected to be taxed on all of its intangible property, it is subject to no greater taxability than would be a Georgia corporation. The solution to the basic question then must necessarily turn upon a determination of whether a Georgia corporation would be subject to a tax on the intangibles in question under the same circumstances.
The general policy of this State with respect to the taxation of property is that all property, whether real or personal, tangible or intangible, shall be taxed unless its exemption be constitutionally authorized. This policy is clearly enunciated by the wording of the last sentence of Art. 7, Sec. 1, Par. 4 of the Constitution, which reads: "All laws exempting property from taxation, other than the property herein enumerated shall be void." Code § 2-5404. While it is true that under the provisions of Art. 7, Sec. 1, Par. 3, the General Assembly has the power to classify intangible property and to adopt different rates and different methods of taxation for different classes of property, the authority to do this is not authority to exempt. *793 Unless the exemption claimed by the defendant in this case be expressly provided for or necessarily implied under the Constitutional provisions of Art. 7, Sec. 1, Par. 4, supra, any attempt to grant such an exemption would be unconstitutional. Of course, under the ruling of the Supreme Court in transferring this case to this court (National Linen Service Corp. v. Thompson, 216 Ga. 550, supra), we do not have any question as to the constitutionality of any law presented, and this is a question which this court does not have jurisdiction to decide, as pointed out in the preceding division of this opinion. This court does have authority to decide, however, whether the law under consideration has or has not granted an exemption to the intangible property of the defendant as claimed.
Complying with the constitutional mandate first mentioned, the legislature has from time to time enacted tax laws imposing taxes on property which have been codified under Chapter 92-1 of the Code. That all of the laws codified under Chapter 92-1 are laws imposing taxes on property is hardly open to question at this time. The purpose to tax all property, whether real or personal, and whether owned by individuals or corporations and whether owned by residents or nonresidents, unless legally exempted, was clearly stated by the General Assembly as far back as 1851. Ga. L. 1851-52, pp. 288, 289. This law which was codified by the framers of the 1933 Code as § 92-101 reads: "All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law. (Acts 1851-2, pp. 288, 289)." This codification had the effect of reasserting in 1933 the legislative policy stated in 1851 with respect to the taxation of property. Code § 102-101.
Pursuant to this policy the General Assembly enacted the acts approved December 27, 1937, and December 22, 1953, imposing taxes on intangible property. Ga. L. 1937-38, Ex. Sess., pp. 156 et seq., and Ga. L. 1953, pp. 379, et seq.
Insofar as is material to the question in this case, Sections 3(e) and 3 (f) of the 1937 act need to be first noticed. These sections are as follows:
"(e) Every resident or nonresident person, including partnerships *794 whose members are in whole or in part nonresidents of this State, is hereby declared to be subject to the tax imposed in this Act on so much of his property taxable under this section as shall have been acquired in the conduct of, or used incident to, business carried on or property located in this State. Each such person shall report such property and pay taxes thereon as provided by law, for citizens of this State.
"(f) Intangible property including money owned by a person domiciled in Georgia which has acquired a taxable situs and is subjected to tax in another State incident to the conduct of business located in the said other State shall not be deemed to be taxable under the provisions of this section." (Ga. L. 1937-38, Ex. Sess., p. 160; Code Ann. §§ 92-121 and 92-122).
"The tax imposed in this Act," as referred to in Section 3(e), material to the question now before the court, is that imposed by Section 3(a) of the same act (Code Ann. § 92-116), and that imposed under the provisions of Section 1(d) of the 1953 act (Ga. L. 1953, Nov.-Dec. Sess., p. 381; Code Ann. § 92-161 (d). These sections read:
"3(a) A property tax is hereby levied for the year 1938 and annually thereafter at the rate of ten cents ($0.10) on each one thousand dollars ($1,000) of the fair market value of all money as of the first day of January, without deduction of any indebtedness or liability of the taxpayer.
"1(d) A property tax is also hereby levied for the years 1954 and 1955 at the rate of $3.00 of each $1,000.00 of the fair market value of all accounts receivable and notes not representing credits secured by real estate; for the year 1956 at the rate of $1.00 of each $1,000.00 of the fair market value of all accounts receivable and notes not representing credits secured by real estate; for the year 1957 and anually thereafter at the rate of 10 ¢ of each $1,000.00 of the fair market value of all accounts receivable and notes not representing credits secured by real estate."
The words "all money" and "all accounts receivable" can only have one meaning and that is "all money" and "all accounts receivable" held or owned by the taxpayer as of the date of the imposition of the tax, unless excluded or exempted by the terms of the act.
*795 Counsel for the defendant contend that Section 3(e) of the 1937 act shows a clear intention to limit the application of the tax imposed therein to such intangibles as "have been acquired in the conduct of, or used incident to, business carried on or property located in this State." However, a careful reading of this subsection in connection with the next succeeding subsection, both of which we have quoted above, shows that the legislature had no such intent. Section 3(e) is applicable to resident and nonresident persons only, as distinguished from persons domiciled in Georgia. Section 3(f) on the contrary is applicable to persons domiciled in Georgia, that is, having a permanent place of abode here with an intent to remain. Residence and domicile are not synonomous terms. Commercial Bank v. Pharr, 75 Ga. App. 364, 376 (43 S.E.2d 439). See 13 Words & Phrases, Perm. Ed. 277, et seq. The legislature must be presumed to have had clearly in mind the difference in meaning of these terms in enacting these two sections. It is clear, with respect to Section 3(e), that the intent of the legislature was to tax the property of resident and nonresident persons, that is, persons not domiciled in Georgia only to the extent that it had been acquired in the conduct of or used incident to business carried on or property located in this State. The defendant in this case is not merely a resident of Georgia, but it is a corporation domesticated in Georgia with its principal office in Georgia. As such it can only be considered as a domiciliary of Georgia. When so considered, Section 3(e) has no application to its case. That section is, so to speak, the other face of the coin to Section 3(f) which is applicable to this case.
In imposing a tax on all of the intangibles here involved, the legislature did not choose to exempt intangible property owned or held by the taxpayer outside the State, except as provided in Section 3(f), and such an exemption must be strictly construed in favor of the State. State Revenue Comm. v. Brandon, 184 Ga. 225, 228 (190 S.E. 660); Cherokee Brick &c. Co. v. Redwine, 209 Ga. 691 (1) (75 S.E.2d 550); Church of God &c., Inc. v. Dalton, 213 Ga. 76, 78 (97 S.E.2d 132).
Giving to that section this strict construction required, it will *796 not be construed to grant relief to the taxpayer beyond the mere avoidance of imposing a second tax on property which has already been taxed in another State. But the allegations of the affidavit of illegality in this case show that the intangibles on which the defendant seeks to avoid the tax were merely used in Alabama and Texas as a part of the measure of a franchise tax imposed on the defendant for the privilege of doing business there by those States. The payment of such a tax does not relieve the defendant of its obligation to pay a tax on those intangibles in Georgia.
An intangible tax is an ad valorem tax on intangible property and is a property tax; a franchise tax, on the other hand, is in the nature of a license or privilege tax properly classified as an excise tax, and the two may be computed separately and without relation to each other. See Head v. Cigarette Sales Co., 188 Ga. 452 (2), 456 (4 S.E.2d 203.)
The foregoing view is reinforced with respect to the accounts receivable feature of this case, at least, by the following facts: In an act approved February 25, 1949, expressly amending Section 3(b) of the 1937 act a proviso was added to that section. The 1953 act, while not expressly amending the 1937 act, has been treated by the parties to this case as imposing the tax assessed here. It contains substantially an identical proviso as that incorporated in the 1949 act. This proviso reads as follows: "Any sale or transfer of accounts receivable or notes not representing credits secured by real estate to a nonresident of this State shall be void so far as tax liability hereunder is concerned. Sales or transfers to nonresidents of such accounts and notes receivable retaining any interest whatever to the seller shall be void as against tax liability hereunder. The physical removal of such accounts receivable and notes from the State of Georgia by any person doing business in said State shall not avoid liability for the tax herein imposed." Ga. L. 1953, Nov.-Dec. Sess., p. 382.
From the wording of these acts as quoted above, it is manifest that it was the intention of the General Assembly to impose a tax on all the accounts receivable of all persons (including corporations) domiciled in the State of Georgia irrespective *797 of the physical location of the same. It is difficult to see how the legislature could have made its intention more plain than it did when it enacted the last sentence of the proviso contained in the 1953 act that "the physical removal of such accounts receivable and notes from the State of Georgia by any person doing business in said State shall not avoid liability for the tax herein imposed."
It follows that the affidavit of illegality set up no defense to the levy of the execution in this case and the judge of the superior court did not err in dismissing it on its merits.
Judgment affirmed. Townsend, P. J., Frankum and Jordan, JJ., concur.
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66 Mich. App. 616 (1976)
239 N.W.2d 683
PEOPLE
v.
ADAMS
Docket No. 24393.
Michigan Court of Appeals.
Decided January 8, 1976.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, *617 Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and David A. Potts, Assistant Appellate Counsel, for the people.
John C. Talpos, for defendant on appeal.
Before: McGREGOR, P.J., and T.M. BURNS and N.J. KAUFMAN, JJ.
Leave to appeal denied, 396 Mich 849.
McGREGOR, P.J.
Defendant, Robert Neil Adams, was convicted by a jury of both robbery armed (MCLA 750.529; MSA 28.797) and assault with intent to commit gross indecency (MCLA 750.85; MSA 28.280). He was subsequently sentenced to a term of 40 to 60 years in prison on the first charge and to a concurrent term of 6 to 10 years on the second. He now appeals both convictions as a matter of right.
Defendant's first claim on appeal relates to the alibi instruction given by the trial court. Preliminarily, we note that the defense counsel at trial did not object to the instruction in question and, in fact, expressed satisfaction with it. Thus, the giving of an erroneous instruction would not warrant reversal, absent a showing of manifest injustice. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972). The trial court's instruction was as follows:
"As to alibi. One of the defenses raised in this case is what the law considers as an alibi. That is that the defendant was at another place at the time of the commission of the crime.
"I instruct you that such defense is as proper and as legitimate as any other and all of the evidence and burden upon that point should be carefully considered by the jury.
"If in view of the evidence, the jury has a reasonable doubt as to whether the defendant was at some other *618 place at the time the crime was committed, they should give the defendant the benefit of any doubt and find him not guilty.
"Now, the defendant is not required to prove that defense beyond a reasonable doubt."
Defendant claims that this instruction mandates reversal for two reasons: First, it is contended that the instruction was erroneous based upon People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), in that it failed to inform the jury of both avenues of relief offered by the alibi defense. In Erb, p 630, we stated:
"An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted. People v Virgil Brown, 15 Mich App 600, 605-606; 167 NW2d 107, 110 (1969), People v Loudenslager, 327 Mich 718, 726; 42 NW2d 834, 837 (1950)."
In the present case, the court did instruct on the "reasonable doubt" aspect of the defense but did not mention the "perfect defense" avenue. This second avenue, in effect, informs the jury that if they believe a defendant's evidence, then the alibi defense is absolute and they must find the defendant not guilty. Viewed in this light, the "perfect defense" avenue can be considered as a logical extension of the "reasonable doubt" standard, since a jury's finding that a defendant was somewhere else would by necessity also raise a reasonable doubt as to his presence at the scene of the *619 crime. Contrariwise, if the jury found that the evidence did not establish the "perfect defense", they could nevertheless still find the evidence sufficient to raise a reasonable doubt as to the defendant's whereabouts at the time in question.
Applying these factors to the present case, we find that the above instruction, albeit erroneous, does not warrant a reversal on this ground.
As previously noted, a jury finding that the greater "perfect defense" aspect existed would by definition also require a finding that the lesser "reasonable doubt" standard existed, but not vice versa. Thus, a jury instruction which stresses only the lesser standard does not prejudice a defendant to the same degree as would an instruction stressing only the greater standard, since a finding by a jury of the lesser is all that is necessary in order to reach a verdict of not guilty. Consequently, the failure to instruct on the greater, at least in the absence of an objection, does not result in sufficient prejudice to constitute a showing of manifest injustice.[1]
Secondly, defendant directs our attention to the last sentence of the above quoted instruction and contends that it erroneously suggests that the burden is on the defendant to prove his alibi by a preponderance of the evidence, when all that he need do is raise a reasonable doubt thereof. In so contending, the defendant ignores the clear impact of the immediately preceding paragraph. This announcement of the trial court correctly advised the jury that, should any reasonable doubt exist as to *620 the presence of the defendant at the scene of the crime, they should return a verdict of not guilty.
The Supreme Court was faced with a similar "shifting of the burden" argument in People v Lee, 391 Mich 618, 641; 218 NW2d 655 (1974). There, Justice WILLIAMS stated:
"In the continuation of the instruction, after the statement objected to, the court pointed out that `the benefit of any doubt' (emphasis added) should be accorded to the defendant. Therefore, the charge properly indicated that the defendant need not fully establish an alibi to have the benefit thereof, in rebuttal of the proofs of the prosecution. Testimony in support of an alibi need accomplish no more than raise a reasonable doubt of defendant's presence at the time and place of the commission of the crime charged. See People v Marvill, 236 Mich 595, 597; 211 NW 23 (1926).
"The issue presented to the jury was one of credibility. Taking the charge as a whole, we are persuaded that the jury understood that its task was to determine whether the alibi testimony created sufficient doubt that it could not find the defendant guilty of the robbery charged `beyond a reasonable doubt'. The jury elected to believe the testimony of the complaining witness. We find that there was sufficient evidence in the record upon which the jury could reasonably have based its judgment of guilt." (Emphasis added.)
So, also, we find that in spite of the awkward language, the present instruction, when viewed in its totality, adequately informed the jury of their task and did not have the effect of shifting the burden of proof to the defendant. Moreover, we further note that the Lee court held that, since the defendant's counsel had failed to object to the given instruction, the issue was not properly preserved on appeal and, therefore, could not furnish reversible error. The same reasoning can be applied *621 to the facts in the instant case. Thus, for all the reasons above stated, we hold that the trial court's instruction on the alibi defense in the present case does not justify the reversal of defendant's conviction.
We have carefully examined the other two issues raised by the defendant and have found neither to be reversible error.
Affirmed.
NOTES
[1] People v McShan, 53 Mich App 407; 219 NW2d 792 (1974), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), and People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), are distinguishable in that those cases involved alibi instructions which informed the jury of the greater standard but failed to mention the lesser and more important "reasonable doubt" standard.
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66 Mich. App. 664 (1976)
239 N.W.2d 704
PIPPEN
v.
DENISON DIVISION OF ABEX CORPORATION
Docket No. 19817.
Michigan Court of Appeals.
Decided January 26, 1976.
*667 Rains, Block & Dean and Zeff & Zeff, for plaintiffs.
Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch (by Konrad D. Kohl and Wayne D. Gardner), for defendant.
Before: J.H. GILLIS, P.J., and BRONSON and T.M. BURNS, JJ.
Leave to appeal applied for.
BRONSON, J.
On October 25, 1970, plaintiff John Pippen was injured while operating a hydraulic power press for Atlantic Die Casting Company. He brought suit against the manufacturer of the press, Denison Division of Abex Corporation, alleging breach of warranty in the design and manufacture of the press. He also claimed negligence in the design of the press and in the failure to warn the user of the press of potential dangers. John Pippen's wife, Evelyn, sued for loss of consortium. The jury returned a verdict in favor of John and Evelyn Pippen in the amounts of $1,250,000 and $500,000, respectively. The trial judge found the verdict to be excessive, but denied a motion for a new trial on condition that the plaintiffs each remit part of the verdict. Plaintiffs agreed, and judgment was entered for $625,000 and $100,000, respectively.
The press in question was used to trim excess metal from die castings, and had been sold to Atlantic by Denison in October of 1966. The press was equipped with dual "palm buttons" as a safety device. These buttons are located on each side of the machine, to keep the operator's hands out of the dangerous area of the press. Both buttons must be pressed before the "ram" comes down, cuts the metal from the castings, and returns to its *668 original position. The center piece of casting remains to be removed by hand.
In theory, the press does not cycle again until both palm buttons are released and pressed down again, thus protecting the operator's hands. On the night in question, however, as plaintiff reached in to remove the casting, the press repeated its cycle without plaintiff having pressed the palm buttons. The ram caught his arm and crushed it. The doctors treating his injuries were required to amputate his arm above the elbow. The press again "repeat cycled" after Mr. Pippen was injured.
At trial, plaintiffs presented no direct evidence to identify a particular part of the press that failed, causing the press to "repeat cycle". However, plaintiff's expert witness testified that the only possible area of failure was in the control mechanism, sealed in the control box of the press. Indicating that this press was "relatively new", since a press normally operates for 30 to 40 years, the expert felt that a sticking relay valve or malfunctioning solenoid were the most likely causes of the press "double tripping". The expert found the press design to be defective because the electrical circuitry of the control box would not prevent the press from cycling upon failure of either of those two parts. The plaintiff's expert also testified that the press was defective, in that there were insufficient safety features designed into the press which were available at the time, i.e., a safety block.
Defendant did not contest the fact that the press "repeat cycled". Instead, Denison's expert witness, after an inspection of the press several days after the accident, put forth two alternative theories as to the cause of the malfunction. First, metal fragments had entered the control box because the *669 control box had been opened and improperly resealed. Second, Denison alleged that a substitute palm button had been opened and not properly resealed. The trial judge allowed that testimony into evidence only upon the condition that defendant show that these conditions existed on the date of the accident, and were not caused by the employer's investigation of the accident. Defendant never introduced any evidence showing those facts.
Defendant raises numerous issues upon appeal, but we find only two merit discussion: (1) whether the trial judge improperly instructed the jury on an implied warranty cause of action because plaintiff failed to show a "defect" existed in the press; and (2) whether the amount of damages awarded both before and after remittitur were excessive.
I. The Warranty Instruction
In order to recover from Denison for breach of an implied warranty, the plaintiff must allege and prove that (a) the press in question was transferred from the manufacturer's possession while in a "defective" state and (b) as a result of being "defective", the product caused personal injury or property damage, Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965). The proof that a product is defective can be drawn from circumstantial evidence without a showing of a specific demonstrable defect, Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1965).
Defendant expresses agreement with those legal statements, but contends that plaintiff's theory that the press malfunctioned as a result of a "defect" was "mere conjecture", citing Kaminski v Grand Trunk W R Co, 347 Mich 417; 79 NW2d 899 (1956). Defendant's theory that the press was improperly maintained and modified by plaintiff's employer is said to be equally as probable as *670 plaintiff's theory as to the cause of the malfunction. Defendant argues that, under the Kaminski rule on circumstantial evidence, there is insufficient proof of causation to go to the jury. On its face, that argument is persuasive, yet we find that it does not comport with recent Michigan products liability law.
The Kaminski case does set forth important rules governing the use of circumstantial evidence. There, plaintiff was injured by a metal cart while he was working at a General Motors plant near certain railroad tracks. Plaintiff sued Grand Trunk, contending that a train owned by that company had negligently knocked the cart into plaintiff. It was dark at the time of the accident, so there was no direct evidence that the train had hit the cart. Grand Trunk claimed that plaintiff had proven only that the accident occurred, and that non-negligent explanations of the cause of the accident were equally as probable as the plaintiff's theory. Defendant, then, argued on appeal that its motion for a directed verdict should have been granted.
The Kaminski Court reiterated the "conjecture" rule as being applicable to the case:
"`As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only.'" 347 Mich at 422.
Yet the Court went on to state that if proven facts support plaintiff's theory, viewing them most favorably to plaintiff, the case can go to the jury. Looking to the particular facts, the Supreme Court *671 found defendant's theories to be of "comparative improbability" in relation to the inference of negligence plaintiff wished to draw from the proven facts. The denial of a directed verdict was upheld.
The "conjecture rule" is quite narrow in its operation. As stated in the early case of Schoepper v Hancock Chemical Co, 113 Mich 582, 586; 71 NW 1081 (1897):
"It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v Charles Wright & Co, 94 Mich 283 [53 NW 938 (1892)]; Redmond v Lumber Co, 96 Mich 545 [55 NW 1004 (1893)]. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other."
Illustrative of the judicial philosophy of searching for factual support for plaintiff's theory is the case of Schedlbauer v Chris-Craft Corp, 381 Mich 217; 160 NW2d 889 (1968). Plaintiff's pleasure boat was destroyed by a fire resulting from an engine room explosion. Plaintiff sued defendant for failing to warn boat owners that a diaphragm in the fuel pump could wear out and leak gas into the hold. The engine was not recovered. The Supreme Court held that plaintiff's testimony that the engine began to run "rough" shortly before the explosion and that it continued to run after the explosion made plaintiff's theory more likely than defendant's.
In reviewing the Michigan cases in this area, we find that proof of certain facts has consistently been held sufficient to prevent a plaintiff's theory from being characterized as "mere conjecture". *672 Proof that a malfunctioning product is relatively new is frequently found to support an inference that a "defect" in the product caused that malfunction. See, Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708; 202 NW2d 727 (1972) [Ford truck six months old]; Garmo v General Motors Corp, 45 Mich App 703; 207 NW2d 146 (1973) [Pontiac automobile four and one-half months old, driven about 8,000 miles]; Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1965) [clothing claimed to contain chemical irritants bought one day prior to injury]; Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975) [Chevrolet automobile five weeks old]. A history of repair problems, traceable back to the time of purchase, associated with the malfunctioning part of the product has also been considered important. See, Snider, supra [brake problems soon after purchase continued for four months, until the accident]; Garmo v General Motors Corp, supra [car returned for brake problems several times soon after purchase].
Perhaps one of the most important factors is whether the part which fails is open and exposed, where it may be tampered with, or is sealed. In Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972), where the Court could find nothing to support the inference of a "defect", malfunctions inside a "sealed package" were distinguished:
"We are not confronted here with an enclosed part such as a brake mechanism or a fuel pump where it could logically be inferred that any defect was present when the automobile left the manufacturer. In cases where the defect is more or less in a `sealed package', it is more plausible to believe that the defect was caused by the manufacturer than to believe that the package was opened after sale, the defect caused independently, and then the package resealed." 37 Mich App at 519. *673 That concept seemingly has been recognized sub silentio in several cases involving malfunctioning brake systems. See, Snider, supra, Garmo, supra, and Caldwell, supra.
In the present case, two of those three important factual patterns were shown to exist. The press was characterized as "relatively new" by plaintiff's expert, and that view was supported by the record. Secondly, there was direct testimony that the only part that could malfunction, the control mechanism, was located in a sealed container which had not been opened at the time of the accident. Defendant disputed that fact, but we must view the evidence most favorably to plaintiff. Under that standard of review, there was proof of the fact that the malfunctioning system was located in a closed box.
We conclude that the independent facts presented at trial lent sufficient support to plaintiff's theory of a "defective" product to take it beyond the stage of "mere conjecture". The trial judge committed no error by instructing the jury on a warranty theory.[1]
II. Excessiveness of the Damages
The excessiveness of the damages awarded to plaintiffs in this case has been put directly in *674 issue. Defendant argues first that the $1,750,000 award was clearly excessive, and then that even the $750,000 judgment entered after remittitur is excessive. Plaintiffs, pursuant to GCR 1963, 527.6, argue that the original verdict was supported by the evidence at trial. We agree with plaintiffs, and reinstate the original verdict.
The use of remittitur by the trial judge is well-established under Michigan law. Broadly defined, remittitur is the procedural process by which a verdict of the jury is diminished by subtraction.[2] In the typical case, the plaintiff, on a motion by the defendant for a new trial because of an excessive verdict, is given an election to remit a portion of the amount or submit to a new trial. Where there are no other errors in the trial, remittitur can be ordered only if the verdict is so excessive as to "shock the judicial conscience", Stevens v Edward C Levy Co, 376 Mich 1, 4; 135 NW2d 414 (1965), McKay v Hargis, 351 Mich 409, 419; 88 NW2d 456 (1958), Asmus v Barrett, 30 Mich App 570, 578; 186 NW2d 819 (1971), Powers v City of Troy, 28 Mich App 24, 40; 184 NW2d 340 (1970).
Clearly, the trial judge is not empowered to go through de novo review of the verdict returned by the jury. The remittitur power should be exercised with restraint. The courts are even more reluctant to allow jury verdicts in personal injury cases to be disturbed. The rationale for that deference to the jury is found in the early case of Watrous v Conor, 266 Mich 397; 254 NW 143 (1934):
"There is and can be no absolute standard by which we can measure the amount of damages in personal injury cases. Individual opinions may differ as to the correctness of awards, even those made by trial judges. It has yet to be determined whether the judgment of a *675 one-man jury is sounder than that of 12. * * * Adopting defendant's contention that, at best, the showing here is only one of pain and suffering, plus expenses for medical services and hospitalization attention, we still prefer our rule stated in the case of Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)], that the amount allowed for pain and suffering must rest in the sound judgment of the trier of the facts. Assuming even that our verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive." 266 Mich at 401.
See also, O'Grady v Rydman, 347 Mich 606; 81 NW2d 383 (1957), Cleven v Griffin, 298 Mich 139; 298 NW2d 482 (1941), Morgan v Engles, 13 Mich App 656; 164 NW2d 702 (1968), shirley v The Drackett Products Co, 26 Mich App 644; 182 NW2d 726 (1970), and Dillard v Braunstein, 32 Mich App 216; 188 NW2d 203 (1971), for similar reasoning.
With the extra regard for the jury assessment in personal injury cases, the "shock the conscience" test becomes:
"`As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.'" Stevens v Edward C Levy Co, 376 Mich 1, 5; 135 NW2d 414 (1965).
Once the trial judge has ordered remittitur, the test is whether he has abused his discretion, Dougherty v Rezolin, Inc, 48 Mich App 636; 210 NW2d 899 (1973). Yet the courts carefully scrutinize the trial judge's decision based upon the above-stated tests. The appellate courts have not been slow to find an abuse of discretion where the verdict was within the range of, and supported by, *676 the proofs. See, for example, Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971), Stevens, supra, Majewski v Nowicki, 364 Mich 698; 111 NW2d 887 (1961), and Soave Construction Co v Lind Asphalt Paving Co, 56 Mich App 202; 223 NW2d 732 (1974).
The original jury verdict of $1,750,000 for plaintiffs was supported by the record, and does not "shock" our "judicial conscience". The plaintiff John Pippen testified as to intense pain and suffering from his injuries, and Evelyn Pippen told of the problems that had resulted to their relationship as husband and wife. Counsel for plaintiff argued from a per diem formula for pain and suffering damages and loss of consortium, a method specifically approved in Michigan, Yates v Wenk, 363 Mich 311; 109 NW2d 828 (1961), Crenshaw v Goza, 43 Mich App 437, 444; 204 NW2d 302 (1972). Defense counsel, for tactical reasons, did not argue the issue of damages to the jury.
We find that plaintiffs' testimony supported the per diem amounts suggested by plaintiffs' counsel. In light of today's economics, we cannot hold such amounts to be excessive as a matter of law. Using a perfectly proper mathematical formula, the suggested damage award was actually greater than the amount the jury returned. We think that this jury verdict which was in keeping with plaintiff's unobjected-to mathematical formula should not be set aside.
We must assume that the jury represented a cross-section of the community, with diverse experiences in life. It reached its unanimous decision after considerable deliberation. The jury had the benefit not only of listening to the testimony, but also close and extended observation of the plaintiffs and their relative vitality, energy, and seriousness of injuries.
*677 Defendant attempts indirectly to "shock our judicial conscience" by emphasizing the size of the lump-sum amount. First, Denison argues that verdicts in other cases involving similar injuries have been less. We find the fact that a damage award is "precedent shattering" to be of little moment when the damages are in fact supported by the record, Williams v Department of State Highways, 44 Mich App 51; 205 NW2d 200 (1972).[3] Second, Denison argues that even the $725,000 minus plaintiffs' costs can be invested to give them an income of $35,000 per year without touching the principal. We find that contention to be fully answered in Wry v Dial, 18 Ariz App 503, 514; 503 P2d 979, 990 (1972):
"We know of no cases, and the appellants have cited none to us, which hold that the jury is to determine its award for pain and suffering by determining a lump amount which, when invested, will result in an annual amount which is at once just and reasonable. Nor have we found any cases which hold that the court is to determine whether an amount is excessive by determining its annual yield."
In conclusion, we find the damages awarded here to be within the fair scope of the evidence presented at trial. We are not persuaded by defendant's attempts to characterize the lump-sum amount awarded as some type of windfall to plaintiffs.
Remanded for reinstatement of the original jury verdict. Costs of this appeal to plaintiffs.
T.M. BURNS, J., concurred.
*678 J.H. GILLIS, P.J. (dissenting).
The jury verdict in the instant case is so shockingly excessive that I am compelled to conclude that a new trial is mandated.
At the time his arm was amputated, plaintiff John Pippen was 67 years old. He was a man of modest means,[1] he had a life expectancy of slightly less than 14 years. His wife Evelyn's life expectancy exceeded 14 years; she too was a woman of modest means. The jury awarded John Pippen $1,250,000; they awarded Evelyn Pippen $500,000.
The $1,250,000 verdict in John Pippen's favor encompassed lost wages, medical expenses, and pain and suffering. At trial, plaintiffs' counsel argued that John worked 55-60 hours a week, earned $2.65 an hour,[2] and that the jury could award him lost wages for his entire life expectancy (i.e. they could assume he would work until he was 81 years old). Accepting these arguments as true, our calculations indicate that Pippen was entitled to approximately $141,000 in lost wages.[3] His medical *679 expenses were stipulated to be $1,791.25. His pain and suffering damages would therefore amount to $1,107,209.[4] Likewise, trial testimony indicated that Evelyn Pippen was required to relinquish a $1,200 per year job in order to care for her injured husband. Accepting this testimony as true, her lost wages amounted to approximately $17,000 for the 14-year period. Her award for loss of consortium, therefore, encompassed $17,000 for lost wages and $483,000 for loss of intangible benefits.
When the jury returned its verdict, the trial judge was shocked. He stated that the verdict was " * * * so gross as to carry its own obvious proof of prejudice on the part of the jury". Although he was empowered to grant a new trial on that basis alone,[5] he declined to do so. Rather he ordered John Pippen to remit $625,000 and Evelyn Pippen to remit $400,000. Thus, the jury verdict was diminished by almost 60%. It is in this posture that the case comes before us. Defendant claims the remitted verdict is still too large, plaintiffs claim that the $1,750,000 award is conservative in light of what the Pippens actually deserved. The majority has set aside the remittitur and reinstated the original verdict.
In reviewing the decision of a trial judge to either grant or deny a remittitur, we look to see whether there has been an abuse of discretion on his part. Dougherty v Rezolin, Inc, 48 Mich App 636; 210 NW2d 899 (1973). The reasons for this rather narrow scope of review are obvious. In Wry v Dial, 18 Ariz App 503, 515; 503 P2d 979, 991 (1972), a case relied on by the instant majority, the Arizona Court of Appeals succinctly enunciated the policy underlying a narrow scope of review:
*680 "In McClain v Sinclair, 2 Ariz App 543; 410 P2d 500 (1966), this court noted that the jury and trial judge have a much better opportunity than do appellate judges to measure the actual damage suffered by plaintiffs and the amount which would compensate for their injuries. The trial judge not only has the opportunity to hear and observe the evidence in the case but is also singularly able to observe the jurors in considering whether or not they were motivated by passion or prejudice in their verdict." (Emphasis supplied.)
In the instant case, the trial judge specifically stated that he thought the verdict was prejudiced, and therefore ordered a huge remittitur. Yet the majority dismisses this fact by merely stating that courts will find an abuse of discretion in the ordering of a remittitur where the verdict is supported by the evidence,[6] that this verdict does not shock their conscience and is therefore supported by the evidence. Unlike the majority, I find the fact that the trial judge stated that the verdict was "prejudiced" and that he ordered a remittitur of approximately 60% to be of great significance. It plays a large part in my determination that a new trial is necessary.
In the absence of other error at trial, a jury award of damages is set aside only if it is so excessive as to "shock the conscience" of the reviewing court. Stevens v Edward C Levy Co, 376 *681 Mich 1; 135 NW2d 414 (1965). This standard is obviously a very subjective one; its application here is the cause of the disagreement between the majority and myself. Review of a jury verdict becomes all the more difficult when we deal with "pain and suffering" damages; they are the epitome of intangible damages. In essence we are asked to measure the immeasurable. Nonetheless, an appellate court cannot, in all cases, defer to the judgment of the jury:
"However a court may not stand by idly when it is apparent that a verdict is shockingly excessive. A jury's verdict must have some relation to reality and it is the court's duty to keep it so." Faulk v Aware, Inc, 19 App Div 2d 464, 470; 244 NYS2d 259, 264-265 (1963), aff'd, 14 NY2d 899; 200 NE2d 778 (1964).
In determining whether this verdict is grossly excessive it is both useful and proper to examine judicial decisions of this state and other jurisdictions in order to obtain a proper perspective. See generally, Wycko v Gnodtke, 361 Mich 331, 341; 105 NW2d 118, 123 (1960).
My research has indicated that this jury award is the highest in the personal injury area to ever be reviewed by a Michigan appellate court. In Williams v Department of State Highways, 44 Mich App 51; 205 NW2d 200 (1972), lv den, 389 Mich 780 (1973), we approved a jury award of $1,100,000 to an injured plaintiff. That award encompassed $35,000 medical expenses, permanent loss of ability to earn any income, as well as pain and suffering. Pamela Williams was a 16-year-old girl injured in an auto accident. She suffered permanent brain-stem injuries which rendered her an aphasic. She lost control of her arm and leg movement, she was "unable to talk in any fashion", *682 and tested at the level of a 7-8 year old after the accident. Her injuries were permanent, the jury was told she would require constant medical treatment. She suffered severe emotional damage and was considered suicidal. The jury award was based on all these considerations. The Williams, supra, panel recognized the award to be "precedent shattering", but, under the grave circumstances of the case, approved it. To say that John Pippen's damages and injuries approach those of Pamela Williams in any way, shape or form is to denigrate the harm she suffered. Yet, his award for pain and suffering alone is equivalent to that received by Williams for medical expenses, loss of life-long income and pain and suffering.
Personal injuries involving loss of an arm are all too frequent. A review of other jurisdictions' decisions dealing with jury awards for loss of an arm reveals that the verdict in the instant case for pain and suffering is more than twice that approved by any appellate court in this country. The majority's designating this decision as merely "precedent shattering" is far too modest!
The highest award acceptable to an appellate court of another jurisdiction for pain and suffering accompanying the loss of an arm is $400,000. In Seaboard C L R Co v McKelvey, 270 So 2d 705 (Fla, 1972), the Florida Supreme Court approved that verdict for a 27-year-old man whose arm was amputated. McKelvey had a life expectancy of 45-1/2 years, so this award entitled him to approximately $10,000 per year for pain and suffering.[7]*683 Under the majority's decision, plaintiff Pippen will receive some $80,000 per year for pain and suffering.
Other jurisdictions have been willing to set aside verdicts in arm-loss cases on the grounds of excessiveness. In Washwell, Inc v Morejon, 294 So 2d 30 (Fla App, 1974), the Florida Court of Appeals set aside a "pain and suffering" verdict of $383,000 awarded to a 87-year-old woman with a 5-1/2 year life expectancy. The woman's arm had been torn off in a laundromat accident. The court reset the award at $150,000.[8] In Cooksey v Central Louisiana Electric Co, 279 So 2d 242 (La App, 1973), an award of $408,000 for pain and suffering for a 43-year-old man was found to be excessive and reduced to $143,000.
Finally, in the case of Wry v Dial, 18 Ariz App 503; 503 P2d 979 (1972), cited by the majority, an award of $2,500,000 for pain and suffering was upheld by the Arizona Court of Appeals. Even a superficial reading of that case indicates that the pain and suffering endured by plaintiff Dial was excrutiating beyond belief. Plaintiff Dial was a 32-year-old electrical engineer working on a PhD in electrical engineering. He specialized in the field of microcirculation. He was maimed in an automobile accident and suffered years of devastating pain, and will continue to do so until he dies. The Dial court felt it necessary to expend approximately eight pages of its opinion detailing the suffering Dial underwent and still endures. The award was upheld. Joe Dial had a 39-year life expectancy. He *684 received approximately $65,000 per year for pain and suffering. John Pippen will receive approximately $80,000 per year for an injury which is nowhere near the magnitude of Dial's.
In dissenting from the majority's opinion, I do not wish to downplay the pain John Pippen endures. The loss of an arm is a frightful experience. I sympathize with Mr. Pippen. I do not, however, feel that he is entitled to the enormous award bestowed upon him by the jury. The award does not comport with either legal or everyday reality.
For the above reasons,[9] I think that a new trial is mandated. GCR 1963, 527.1(3).
NOTES
[1] This author should point out that in Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974), following McKinch v Dixon, 391 Mich 282; 215 NW2d 689 (1974), he found the following proof sufficient to go to a jury on a warranty theory: (1) that a malfunction in a product caused injury; and (2) that plaintiff's theory of a "defect" was consistent with the nature of the malfunction, although not more probable than defendant's theories.
The recent Supreme Court case of Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), seems to have retracted upon McKinch and to have followed the proof requirements set forth in the body of this opinion. However, since we hold that plaintiff's proofs were sufficient even under those stricter standards, we need not reach that issue here. We leave that question open, although it seems to have been addressed by another panel of this Court in Holloway v General Motors Corp, 60 Mich App 208; 230 NW2d 380 (1975).
[2] Carlin, Remittiturs and Additurs, 49 W Va L Q 1 (1942).
[3] We note in passing that in fact this verdict may not be out of line with recent verdicts in other cases. An award of $2,500,000 for pain and suffering has been upheld by one appellate court. See, Wry v Dial, 18 Ariz App 503; 503 P2d 979 (1972).
[1] Prior to his employment as a press operator, plaintiff had (a) played piano at various Detroit establishments from 1927-1948, (b) been a utility floor man at US Rubber Co, (c) been an assembly worker at Chrysler Corp, (d) been a riveter at Hudson Motor Co, (e) been a porter at a jewelry store, (f) been a porter at Winkleman's, (g) been a shoeshine man at a barber shop, (h) received welfare and ADC from 1961-1968, and (i) received social security from 1962 on.
[2] Plaintiff's counsel informed the jury that Pippen was paid $2.65 per hour for the first 40 hours of a week, he was paid "time and a half" for the next 8 hours, and he was paid "double time" for any hours worked beyond the first 48 hours.
[3] On appeal, plaintiff argues that the jury was free to consider the effects of inflation in determining lost wages. Normand v Thomas Theater Corp, 349 Mich 50; 84 NW2d 451 (1957), and Routsaw v McClain, 365 Mich 167; 112 NW2d 123 (1961), support this contention. Equally true, however, is the fact that the trial judge must instruct the jury to reduce their award to "present worth", even in the absence of requested instruction by counsel. Nagi v Detroit U R Co, 231 Mich 452, 461; 204 NW 126, 129-130 (1925). The trial judge in the instant case neglected to instruct on either inflation or present worth. We will therefore assume that the two factors essentially cancelled each other out.
[4] ($1,250,000)-($141,000)-($1,791)=$1,107,209.
[5] GCR 1963, 527.1(3).
[6] The majority cites five cases in support of the proposition that a remittitur will be set aside if the original verdict is supported by the evidence. This statement is obviously correct. It is interesting to note the amounts of money involved in the cited cases. In Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971), a $10,000 remittitur was set aside. In Stevens v Edward C Levy Co, 376 Mich 1; 135 NW2d 414 (1965), a $4,000 remittitur was set aside. In Majewski v Nowicki, 364 Mich 698; 111 NW2d 887 (1961), a $5,700 remittitur was set aside. Finally, in Soave Construction v Lind Asphalt Paving Co, 56 Mich App 202; 223 NW2d 723 (1974), a $2,000 remittitur was set aside. While the principle of law remains the same, one wonders whether a casual citation to these cases is sufficient to explain the setting aside of a $1,000,000 remittitur.
[7] Other decisions approving large "pain and suffering" awards for plaintiffs who have suffered the loss of an arm are as follows: Manning v Altec, Inc, 488 F2d 127 (CA 6, 1973), [plaintiff suffered loss of both arms; awarded $525,000 which encompassed $69,000 medical expenses, $268,000 total economic loss, and $113,000 pain and suffering]; Grant v National Acme Co, 351 F Supp 972 (WD Mich, 1972) [plaintiff suffered loss of arm; $187,000 verdict not excessive for young man], and doCanto v Ametek, 328 NE2d 873 (Mass, 1975) [29-year-old plaintiff suffered loss of four fingers and 95% use of arm; verdict of $467,000 encompassing loss of weekly wage of $140 not excessive].
[8] With a $383,000 verdict, Mrs. Morejon would have been entitled to approximately $70,000 per year pain and suffering, $10,000 less per year than Pippen will receive. Under the appeals court decision, she will receive approximately $28,000 per year.
[9] Because I am convinced that the excessiveness of the verdict, taken alone, requires a new trial, I do not find it necessary to discuss any other allegations of error raised by the parties.
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80 S.E.2d 653 (1954)
239 N.C. 560
EDGEWOOD KNOLL APARTMENTS, Inc.
v.
BRASWELL et al.
No. 108.
Supreme Court of North Carolina.
March 17, 1954.
*659 Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff appellee.
Chas. G. Lee, Jr., Asheville, Cochran, McCleneghan & Miller, Charlotte, for defendants Braswell and Byrum, appellants.
Meekins, Packer & Roberts, Asheville, for defendant Casualty Co., appellant.
WINBORNE, Justice.
The record and cases on appeal of the defendants, now before the Court, comprise three hundred sixty-one pages, of which eighty-one are devoted to a grouping of assignments of error. The appellants Braswell set forth sixty-eight assignments of error based upon exceptions taken during the course of the trial, and to the charge as given to the jury, to denial of request for instruction and to failure to charge as required by G.S. § 1-180 as amended, and in brief filed preserve twenty-eight of them. The remaining forty are not mentioned in the brief, nor is any reason or argument stated, or authority cited in support of them and, hence, are deemed to be abandoned. See Rule 28 of *660 the Rules of Practice in the Supreme Court of North Carolina. 221 N.C. 544, at page 562, which is uniformly applied on appeals to this Court. And appellant United States Casualty Company sets forth one hundred seven assignments of error based upon exceptions taken during the course of the trial, and to the charge as given to the jury, to denial of request for instruction, and to failure to charge as required by G.S. § 1-180, as amended, and in brief filed preserves fifty of them. The other fifty-seven are not mentioned in the brief, nor is any reason or argument stated, or authority cited in support of them, under the above rule, and, hence, are deemed to be abandoned.
Appeal of Defendants Braswell.
At the outset it may be noted that though the defendants Braswell entered exceptions to the denial of their motions aptly made for judgment as of nonsuit, their assignments of error based thereon are among those abandoned as above recited. Indeed, a reading of the evidence offered by plaintiff, including admissions by Braswell in their answer, and orally upon the trial, all as shown in the record and case on appeal, discloses sufficient evidence to take the case to the jury upon the issues raised by the pleadings, and to support a verdict against them for breach of contract as alleged in the complaint.
However, Braswell does present for consideration assignments of error which merit express consideration.
1. Assignments of error Numbers 3, 4, 25, 26 and 27, based upon exceptions Numbers 5, 6, 40, 41 and 42, relate to the refusal of the court to permit Braswell "to introduce in evidence the complaint and portions thereof in an action pending in Superior Court of Buncombe County" brought by plaintiff here against Robinson Brothers Contractors, Inc., and St. Paul Mercury Indemnity Company of St. Paul, defendants. In respect thereto, the case on appeal discloses that Richard L. Coleman, President of plaintiff corporation, under cross-examination by counsel for Braswell, testified that such a suit was pending, and he identified the complaint, verified by him, and filed in court in such action. Then he was asked about the language of paragraph 9 of that complaint. Objection thereto was sustained.
But, after argument in the absence of the jury, and the jury having returned, the witness answered: "Yes, I. alleged in the complaint and swore to it in paragraph 9": Then follows what purports to be the wording of paragraph 9. The witness, explaining, said: "When I say buildings, I mean the buildings constructed and erected by Robinson Brothers * * * the same apartment project that I am referring to in this suit against Braswell."
And when Braswell was introducing evidence the complaint so identified by the President of plaintiff corporation was offered, and, upon objection, excluded. Likewise the caption of the complaint and paragraph 9 were offered, and upon objection, were excluded.
The point is made that the complaint, and paragraph 9 so offered, would disclose that plaintiff is there charging that Robinson Brothers, the general contractors, failed to construct the buildings in accordance with the plans, resulting in the roofs of the buildings leaking, and thereby damaging the plaster and other parts of the inside of the buildings. But defendant has the benefit of the fact that a suit against Robinson Brothers was pending, and of what is alleged in paragraph 9 of the complaint therein.
True, it is a rule of evidence that if a party in one action admits a fact in his pleading, such admission is usable against him as an evidential admission in another action between the same or different parties. See Stansbury's North Carolina Evidence § 177; also Grant v. Gooch, 105 N.C. 278, 11 S.E. 571; Middleton v. Hunter, 195 N.C. 418, 142 S.E. 325; Burlington Hotel Corp. v. Dixon, 196 N.C. 265, 145 S.E. 244; Odom v. Palmer, 209 N.C. 93, 182 S.E. 741. However, it does not appear here that the matters to which *661 these assignments relate are violative of this rule.
Indeed, it is not deemed that defendant has been prejudiced by the rulings made by the trial court. For a reading of the charge discloses that the trial court expressly instructed the jury "that the plaintiff can recover only such damages as it has proven by the greater weight of the evidence was caused by the breach of the contract on the part of the defendants Braswell, and for none other".
II. Assignments of error Numbers 29, 30, 31, 32, 33 and 34, based upon exceptions Numbers 44, 45, 46, 47, 48 and 49 respectively, are directed to the refusal of the court to permit defendants Braswell to introduce evidence tending to show that Zeb V. Robinson, Vice-President of the plaintiff, agreed that vermiculite might be used in lieu of sand-plaster in the bathrooms.
While the evidence discloses that Robinson was President of Robinson Brothers Contractors, who had the general contract with plaintiff for the construction of the project here involved, and that he was Vice-President of the plaintiff corporation, appellee contends, and we hold properly so, that there is no evidence that Robinson was an agent of plaintiff for the purpose of varying, and clothed with authority to vary the terms of the written contract between plaintiff and Braswell.
In order for such evidence to be competent, defendants were required to show two things, first, that Robinson was an agent of plaintiff. corporation for this purpose, and, second, that he was clothed with authority to vary the terms of the contract. See Biggs v. North Carolina Home Ins. Co., 88 N.C. 141; Ferguson v. Davis & Rankin Bldg. & Manuf'g Co., 118 N.C. 946, 24 S.E. 710; Land Co. v. Crawford, 120 N.C. 347, 27 S.E. 31; Willis v. Atlantic & D. R. Co., 120 N.C. 508, 26 S.E. 784; Bank of Morganton v. Hay, 143 N.C. 326, 55 S.E. 811; Floars v. Ætna Life Ins. Co., 144 N.C. 232, 56 S.E. 915; Thompson v. Green River Power Co., 154 N.C. 13, 69 S.E. 756; Hall v. Presnell, 157 N.C. 290, 72 S.E. 985, 39 L.R.A.,N.S., 62; Bank of Glade Spring v. McEwen, 160 N.C. 414, 76 S.E. 222; Wynn v. Grant, 166 N.C. 39, 81 S.E. 949; Jones v. Gate City Life Ins. Co., 216 N.C. 300, 4 S.E.2d 848.
The thread of decision in these cases is aptly expressed by Ruffin, J., in the Biggs case, supra, in this fashion: "When one deals with an agent it behooves him to ascertain correctly the extent of his authority and power to contract. Under any other rule, every principal would be at the mercy of his agent, however carefully he might limit his authority." To this the writer added: "It is true the power and authority of an agent may always be safely judged by the nature of his business and will be deemed to be at least equal to the scope of his duties." Testing the power and authority of Robinson by the nature of his business, the evidence discloses that even though he was Vice-President of plaintiff corporation, the nature of his business in respect to the project at Edgewood Knoll was that of principal contractor under contract with plaintiff corporation for the construction of the 166-building units. The scope of his duties in this respect is not that of representative of the principal. Rather the evidence tends to show that the President of plaintiff was its representative.
III. Assignments of error Nos. 65 and 66, based on Exceptions Nos. 113 and 114, are directed to alleged failure of the trial court "to state in a plain and clear manner the evidence in the case and declare and explain the law arising thereon as required by G.S. § 1-180".
This statute G.S. § 1-180 was rewritten by Chapter 107, Session Laws 1949, and as so rewritten declares in pertinent part that the judge, in giving a charge to the petit jury, "shall declare and explain the law arising on the evidence given in the case." But "he shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided the judge shall give equal stress to the contentions of the *662 plaintiff and defendant in a civil action * * *."
In the case in hand the exceptions taken are, No. 113, that "the court failed to sum up for the jury an array of the facts arising on the evidence the circumstances under which the jury should have, as a matter of law, answered the second issue No"; and No. 114, that "the court failed to state the contentions of the defendants Braswell with the impartiality as required by law, and emphasized the contentions of the plaintiff throughout the charge with a heavy over-balance in the plaintiff's favor, and to the prejudice and injury of the defendants Braswell".
The chief argument advanced is that the case on appeal discloses that the trial judge devoted more words, as shown by the number of printed lines, in stating contentions of plaintiff than in stating those of defendants. This is not the test. It is a question whether the judge gives "equal stress" to the contentions of the plaintiff and of the defendant. Otherwise than as above stated appellants Braswell fail to point out wherein the judge failed to give "equal stress". The exceptions are broadside, and, too, objection was not made at the time and will not now be entertained. See Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9. Indeed, the record fails to disclose that unequal stress, or emphasis was displayed by the trial judge in stating the contentions of the respective parties.
Defendants Braswell also assign as error portions of the charge as given, refusal to charge as requested, the exclusion of evidence offered, denial of motion to strike answer of witness, and denial of formal motions. These have been considered, and express treatment of each is deemed unnecessary since no prejudicial error is made to appear.
Therefore, on the Braswell appeal, we find
No Error.
Appeal of United States Casualty Company.
The appellant Casualty Company brings forward among others its assignments of error Numbers 39 and 54, based upon exceptions Numbers 39 and 55 taken to denial of its motions aptly made for judgment as of nonsuit.
While it does not debate or question the sufficiency of the evidence to support a finding that defendants Braswell breached their contract in the respects alleged in the complaint, U. S. Casualty Company advances three grounds upon which it contends that it is entitled to judgment as of nonsuit.
It is contended (1) that plaintiff's action was not commenced within the time limited in the second condition of the bond, as pleaded in its further answer and defense; (2) that plaintiff did not give notice as required in the first condition of the bond; and (3) that plaintiff is not the real party in interest, as disclosed by its own evidence. These are considered seriatim.
In this connection it is appropriate to bear in mind: (1) That in the premises of the bond, after referring to the contract between plaintiffs and Braswell and its terms, all as quoted hereinbefore in statement of uncontroverted facts, it is recited that "the contract, plans and specifications are hereby made a part hereof", that is, of the bond; and (2) that the only affirmative defense pleaded by the United States Casualty Company, in its further answer and defense, is that, under the provisions of paragraph two of the conditions of the bond, this action is barred for that it was not instituted within the time limited.
I. And this leads to consideration of the first ground above stated upon which appellant, defendant surety, relies for judgment as of nonsuit.
In Carolina Builders Corp. v. New Amsterdam Casualty Co., 236 N.C. 513, 73 S.E.2d 155, 156, this Court restated the *663 well established principle in respect of a contractor's performance bond in this manner: "The obligation of the bond is to be read in the light of the contract it is given to secure. The extent of the engagement entered into by the surety is to be measured by the terms of the principal's agreement."
Bearing this principle in mind, it is true that in the second condition of the bond it is provided that "no suit, action or proceeding for recovery hereunder by reason of any default whatever shall be had and maintained on this bond unless the same shall be brought within twelve (12) months from the date fixed in said contract for its completion * * *". And the appellee contends, and we hold rightly so, the contract between plaintiff and defendants Braswell, made a part of the bond, fixed the date for the completion of the contract, rather than the date of the completion of the work,that the contract is bilateral, and is not completed until fully performed by both parties. It is pointed out that paragraph 4 of the contract provides that "the balance of the contract price shall be paid when apartment project has been completed and approved and final disbursements made under the FHA loan", and that the date when this occurred is made certain by the evidence offered upon the trial.
The evidence offered by plaintiff, and admissions made by Braswell upon the witness stand tend to show that this date was 19 December, 1950. As to this, the witness Charles L. Hayes, inspector for FHA testified: "The date of the final report was on December 4, as I recall, 1950. On the basis of that report, the funds were disbursed in connection with the loan." And all the evidence tends to show, and appellant Casualty Company, in brief filed on this appeal, states that on December 19, 1950 final payment was made by the plaintiff to the defendants Braswell in the amount of $7,960. And this action was instituted within one year thereafter, to wit, 29 November, 1951.
Authorities cited by appellant, Casualty Company, have been considered, but in the light of the interpretation of the record and case on appeal, error in this respect is not made to appear.
II. As to the second ground advanced by the appellant, defendant Casualty Company, that is, that plaintiff did not give notice as required in the first condition of the bond: It is appropriate to direct attention (a) to paragraph eleven of plaintiff's complaint, wherein it is alleged that written notice had been given to defendants Braswell "and to the defendant United States Casualty Company" of the default by Braswell in the performance of the contract, and (b) to the answer thereto by defendant United States Casualty Company, wherein it admits that plaintiff forwarded to it a copy of a letter addressed to defendants Braswell alleging certain defaults by them in the performance of the contract in question. And in brief filed in this Court the appellant, United States Casualty Company, concedes (1) that in its answer it did not plead as a defense failure to give notice, and (2) that the requirement of notice is a condition attached to the remedy, and ordinarily the breach of such condition is one to be pleaded by the defendant as a matter of defense.
Be that as it may, it appears that in the trial below the burden of proof as to the fourth issue, relating to the plaintiff giving notice, was put upon plaintiffand the jury answered the issue in the affirmative and there is sufficient evidence to support the finding.
In this connection it is significant that appellant, the defendant United States Casualty Company, moves in this Court to be permitted to amend paragraph 11 of its answer to the complaint by pleading as a defense failure of plaintiff to give timely and proper notice. However, this Court, in the light of the factual situation in hand, being of opinion that the ends of justice did not require it, nor would the ends of justice be promoted by the granting of the motion, denies the motion.
III. And as to the third ground for nonsuit as contended for by the appellant, *664 defendant Casualty Company, that plaintiff is not the real party in interest as disclosed by its own evidence:
In this connection, plaintiff alleges in paragraph 5 of the complaint in respect to the bond executed by defendants Braswell as principal, and United States Casualty Company, as surety, "that a copy of said bond is hereto attached and marked `Plaintiff's Exhibit A' and made a part hereof the same as if expressly copied herein". The U. S. Casualty Company, answering, avers that "The allegations contained in paragraph 5 are admitted". And the bond provides "that it shall not, nor shall any interest therein or right of action thereon be assigned without the prior written consent of the surety, duly executed * * *" as indicated. The copy of the bond so attached bears no endorsement or assignment.
Then in the course of the cross-examination of the President of plaintiff corporation, recalled to the witness stand, counsel for defendant, surety, inquired as to the whereabouts of the original bond, and sought to show that the bond had been assigned. The President testified that he had tried to get the surety to agree to an assignment, but it would not agree to do so; and that then he took the bond to Greensboro, N. C., and delivered it to the bank along with other papers in connection with a loan for the FHA project in question.
Following this a subpoena duces tecum for a named vice-president, or a named assistant cashier, of Security National Bank, Greensboro, N. C., to be and appear at court at certain time to testify in behalf of defendant United States Casualty Company, and to have with him then and there before said court Standard Contract Bond, in question, "in connection with FHA 608 Project" etc. Pursuant thereto A. T. Preyer, Jr., assistant cashier of Security National Bank of Greensboro, N. C., appeared, and produced the bond that was in the bank in Greensboro. The endorsement on the back of it reads: "For valuable consideration, we hereby assign all our right, title and interest in and to the within bond to Security National Bank of Greensboro and Federal Housing Commissioner. This 7th day of November, 1949. Edgewood Knoll Apartments, Inc. by Richard L. Coleman, President. Attest: F. B. Short, Secretary", with the corporate seal affixed.
And on cross-examination the witness testified: "This bond was brought down here to our bank at the time the Edgewood Knoll Apartments borrowed a sum of money through the bank for construction loan. We handled the construction loan. We have no interest whatever in this bond. We never received any assignment of the United States Casualty Company to this assignment to my knowledge, any consent to an assignment."
Manifestly, the assignment of the bond was not completed. Plaintiff had no right to assign it, without the consent of defendant surety,and the consent was not given. Hence the point made is without merit.
The appellant, Casualty Company, brings forward in its brief assignments of error based upon exceptions relating to admission, and to exclusion of evidence, in many aspects, to the settlement and submission of the issues, to the refusal to submit issues tendered, to portions of the charge as given, to the failure of the court to charge as required by G.S. § 1-180, to the failure of the court to charge as requested, to denial of motion to allow this appellant credit for last payment of $7,960 made by plaintiff to defendant 19 December, 1950, and to denial of formal motions. All these have been duly considered, and express treatment of each would serve only to unduly extend this opinion, since no prejudicial error in them is made to appear.
Therefore, on the Casualty Company's appeal we find no error.
On Appeal of BraswellNo Error.
On Appeal of U. S. Casualty Company No Error.
BOBBITT, J., took no part in the consideration or decision of this case.
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57 Cal.App.2d 788 (1943)
THE PEOPLE, Appellant,
v.
JOHN GABRIEL et al., Respondents.
Civ. No. 6831.
California Court of Appeals. Third Dist.
Mar. 26, 1943.
Earl Warren, Attorney General, H. H. Linney, Assistant Attorney General, and Adrian A. Kragen, Deputy Attorney General, for Appellant.
Harold L. Hjelm for Respondents.
THOMPSON, J.
The State of California has appealed from a judgment which was rendered against it in a suit to recover from alleged purchasers of a soft drink business at Turlock, called the "Giant Orange," increased retail sales taxes levied by the State Board of Equalization, under section 17 of the Retail Sales Tax Act of California (Stats. 1933, p. *790 2599, as amended Stats. 1935, p. 1256, Deering's Supp. of 1935, p. 1956, Act 8493), after the transfer of the fixtures and equipment had been consummated. The plaintiff's theory of liability on the part of the defendants is based on their failure to withhold sufficient funds from the purchase price of the property to cover the subsequent levy, as required by the third paragraph of section 26 of the act.
For several years prior to 1937, Andrew J. Hansen operated a seasonal soft drink business in a structure called the "Giant Orange" located on leased land adjacent to the highway at Turlock, Stanislaus County. He owned the structure and equipment consisting of a cash register, beer cabinet, refrigerator, juice extractor and other necessary devices. In the fall of 1937 he became involved in domestic trouble which resulted in his divorce. At the end of the business season of that year he "closed his place of business and left Turlock." The following March he returned to Turlock and on March 19, 1938, he sold and conveyed to the defendants Mary Gabriel and her son "all of the fixtures, equipment and building" called the "Giant Orange" for the sum of $2,250. He informed the defendants that his lease on the real property had expired and that he then had no lease. It was stipulated that the defendants paid to Mr. Hansen $2,250 in cash for "the Giant Orange building, a beer cabinet, a cash register, and an icebox, and an extractor, juice extractor."
The defendants took possession of the property and arranged to rent the real estate upon which the Giant Orange was located from the owner Jesse Santos for $25 per month. They began to sell beverages on April 10, 1938, making their first quarterly report to the Board of Equalization under Mr. Hansen's permit. The complaint alleges, and the plaintiff concedes, that Mr. Hansen regularly rendered his reports of sales quarterly and fully paid all taxes in accordance therewith to the time of his sale of the fixtures and equipment to the defendants. No objection was made to any irregularity in those reports or payments until after the sale of the fixtures and equipment to the defendants. Prior thereto no unpaid sales taxes appeared on the records of the Board of Equalization. The defendants had no notice or knowledge of any claim of delinquent taxes prior to their purchase of the property. An examination of the records of the board would have disclosed no such delinquent taxes. The additional taxes sought to be recovered in this action were not levied until after the sale of the fixtures and equipment was *791 consummated. This subsequent levy include taxes for alleged sales which occurred from and after March 1, 1935, three years before the purchase of the equipment occurred. The defendants had no way of acquiring knowledge of such claims. It is true that the defendants failed to withhold any portion of the purchase price of the property.
November 18, 1938, the defendants, as co-partners, applied to the Board of Equalization and were granted permission to sell soft drinks at said "Giant Orange" in Turlock. They have fully paid all taxes levied against them for sales of beverages. February 23, 1939, the State filed the complaint against the defendants in this action to recover additional sales taxes incurred by Andrew J. Hansen in the aggregate sum of $509.47.
[1] A special and general demurrer to the complaint was overruled. The defendants answered denying the material allegations of the complaint. The cause was tried upon an oral stipulation of facts, together with the introduction of three documents, including defendants' application for permission to sell beverages and two certificates of tax levies by the Board of Equalization. The stipulation of facts is meager and unsatisfactory. It does, however, definitely appear therefrom that in 1937 Andrew J. Hansen who had formerly owned and operated the Giant Orange business was involved in a divorce suit and that he then "closed his place of business and left Turlock"; that thereafter in March, 1938, he returned to Turlock and sold and conveyed to the defendants "the Giant Orange building, a beer cabinet, a cash register, and an icebox, and an extractor, juice extractor, for the sum of $2,250"; that Mr. Hansen then told the defendants he did not have a lease on the real property upon which the structure was located. In the stipulation of facts no mention was made regarding a sale of the soft drink business as distinguished from the fixtures and equipment. The clear import of that stipulation is that Hansen had abandoned his business on account of domestic trouble and that he did not pretend to sell the business to the defendants. The stipulation specifically enumerates the items of personal property which were sold to the defendants for the aggregate sum of $2,250. This precludes the inference that the sale included either the soft drink business or the good-will thereof. It is true that defendants' application for permission to sell beverages, which was received in evidence, contains some answers to *792 printed interrogations which may appear to be inconsistent with the stipulation of facts. That fact merely raises a conflict of evidence. The question of reconciling these statements with the stipulation of facts is a matter solely within the province of the trial judge. The court found that the defendants on March 19, 1938, purchased from Andrew J. Hansen "a Giant Orange building and structure, a beer cabinet, a cash register and ice box, and extractor and a juice extractor" for the sum of $2,250; that the defendants did not purchase the business or good-will of the vendor; that they were not "the successors in interest or purchasers or assignees of any business or stock in trade" and that defendants were not indebted to the plaintiff for the subsequent levy of sales taxes against the former owner Andrew J. Hansen. Judgment was accordingly rendered to the effect that plaintiffs take nothing by this action. From that judgment the State of California has appealed.
Since the answers of Mrs. Gabriel to the interrogatories propounded to her in her application for permission to sell beverages at the Giant Orange merely create a conflict of evidence, this court is bound by the determination of the trial court in that regard.
[2] A stipulation of counsel, at the trial of a case, that specified material facts are true and may be considered as evidence is ordinarily binding on the respective parties and upon the court. (Haese v. Heitzeg, 159 Cal. 569 [114 P. 816]; 23 Cal.Jur. 826, sec. 12; 2 Jones Comm. on Evidence, 2d ed., 1759, sec. 9551; 60 C.J. 78, secs. 68-71.) When the facts of a case are clearly stipulated, evidence which tends to refute such facts is inadmissible. (60 C.J. 82, sec. 71.) In the authority last cited it is said in that regard:
"Evidence to disprove or which has a tendency to disprove the facts admitted, or to limit the effect of the stipulation agreement, is not admissible."
Nor is the trial court authorized to adopt findings which are in conflict with the stipulated facts. (Wilson v. Mattei, 84 Cal.App. 567, 573 [258 P. 453].)
[3] The only question is whether the defendants are liable under section 26 of the Retail Sales Tax Act for taxes levied subsequent to their purchase of the fixtures and equipment on account of failing to withhold a sufficient portion of the purchase price thereof with which to pay the subsequent levy against the former owner of the property. The third paragraph of section 26 reads: *793
"If any retailer liable for any tax, interest or penalty levied hereunder shall sell out his business or stock of goods or shall quit the business, he shall make a final return and payment within fifteen days after the date of selling or quitting business. His successor, successors or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest or penalties due and unpaid until such time as the former owner shall produce a receipt from the board showing that they have been paid, or a certificate stating that no taxes, interest or penalties are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as above provided, he shall be personally liable for the payment of the taxes, interest and penalties accrued and unpaid on account of the operation of the business by any former owner, owners or assignors."
It is our opinion that the evidence amply supports the court's findings and judgment that the defendants did not purchase Andrew J. Hansen's business or become his successors in said business, but upon the contrary that they merely purchased the fixtures and equipment. Mr. Hansen was not conducting a business at the time of the sale. It follows that the defendants are not liable for a subsequent levy of sales taxes of which they had no notice or knowledge until after the purchase of the property.
The levy of taxes which is involved in this suit was made by the Board of Equalization pursuant to section 17 of the Retail Sales Tax Act, which provides in part:
"If the board is not satisfied with the return and payment of tax made by any retailer, it is hereby authorized and empowered to make an additional assessment of tax due from such retailer based upon the facts contained in the return or upon any information within its possession or that shall come into its possession. ..."
"If any part of the deficiency for which the additional assessment is imposed is due to negligence or intentional disregard of the act or authorized rules and regulations, a penalty of ten per cent of the amount of the additional assessment shall be added, plus interest as above provided. If any part of the deficiency for which the additional assessment is imposed is due to fraud or an intent to evade the tax, a penalty of twenty-five per cent of the amount of the additional assessment shall be added, plus interest as above provided."
"The board shall give to the retailer written notice of such *794 additional assessment. Such notice may be served upon the retailer personally or by mail; if by mail, service shall be made in the manner prescribed by section 1013 of the Code of Civil Procedure and addressed to the retailer at his address as the same appears in the records of the board."
In the present case there is no competent evidence of the records of the Board of Equalization showing that the additional taxes which are involved in this suit were imposed against Andrew J. Hansen. There is no evidence of the date when that levy was made, if at all. There is no evidence that the retailer was ever served with notice of the levy as required by section 17, supra. All that appears in evidence to indicate the existence of such a levy is a certificate of an officer of the Board of Equalization dated November 30, 1938, averring that a levy for a specified sum was made against Andrew J. Hansen. This certificate is a mere conclusion of the officer that a levy of taxes was made at some undisclosed time. This certificate does not purport to cover a copy of the judgment or records of the Board of Equalization levying such tax or creating a lien therefor. These certificates are therefore not competent evidence to prove the actual levying or existence of the taxes in question or the obligation alleged to have occurred thereby. Section 1923 of the Code of Civil Procedure provides:
"Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court." (Italics added.)
For the foregoing reasons the judgment is affirmed.
Peek, J., and Adams, P. J., concurred.
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57 Cal.App.2d 820 (1943)
PETER L. SMITH, Appellant,
v.
COUNTY OF SAN MATEO, Respondent.
Civ. No. 12341.
California Court of Appeals. First Dist., Div. Two.
Mar. 29, 1943.
Walter McGovern, James F. Brennan and Harrison W. Call for Appellant.
George M. Naus and Gilbert D. Ferrell for Respondent. *821
NOURSE, P. J.
Plaintiff has appealed from an adverse judgment in an action for damages for the wrongful death of his minor son.
The death occurred while the minor was a member of a summer camp conducted by the defendant Young Men's Christian Association (as to said defendant the action was dismissed with prejudice) in a public park maintained by the defendant county of San Mateo. At the time of the accident the child was sleeping in a cabin in the park. A large redwood tree, without any disclosed external cause, fell across the cabin causing the fatal injury. The injury occurred on June 22, 1939. A claim against the county was filed on September 18, 1939. The ninetieth day thereafter was December 17, 1939. Six months after that day was June 17, 1940. The complaint was filed on June 20, 1940.
The trial court found that the death was a proximate result of the negligence of the respondent and that the plaintiff had been damaged in the sum of $5,000, but it further found that the cause of action was barred for failure to commence the action within six months from the implied denial by the county of a claim for damages as provided by section 4078 of the Political Code.
[1] The appellant has devoted the greater part of his brief to an attempt to show that the finding of negligence is supported by the evidence, but the respondent answers correctly that the question of negligence is not at issue on this appeal as it cannot attack the finding since it is not a party aggrieved by the judgment.
Appellant also contends that the amount of the judgment is inadequate. To sustain the contention he cites a number of cases wherein judgments for the death of a minor child ranging in amount from $7,833 to $15,000, have been held to be not excessive.
[2] The principal question presented is the statute of limitations. The trial court held that the action was barred, and this issue depends upon the interpretation of the code section relating to a failure of the supervisors to act upon the claim. Section 4078 of the Political Code provides: "If the board refuse or neglect to allow or reject a claim or demand for ninety days after the same has been filed with the clerk, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a final action and rejection on the ninetieth day, and a claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him on *822 his account, may sue the county therefor at any time within six months after the final action of the board, but not afterward. ..." It is respondent's theory that an election to exercise the option to treat the failure to act as a rejection is necessarily an election to treat it as a rejection "on the ninetieth day" and that the six months time within which suit may be brought commences to run on the ninetieth day. Respondent does not cite any authority to support the contention but merely cites cases on the general question of the construction of the statute. Appellant's principal argument is based upon an analogy to sections 712 and 714 of the Probate Code and the cases construing these sections, and his theory that the rejection dates from the time of the actual election to treat non-action as a rejection rather than the expiration of the ninety day period.
The history of the Probate Code sections is that they were based upon sections 1496 and 1498 of the Code of Civil Procedure. Section 1496 provided that if the executor or administrator refused or neglected to approve a claim against the estate "such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day;" (1906). Section 1498 required that a suit on a claim be commenced "within three months after the date of its rejection." In Bank of Ukiah v. Shoemake, 67 Cal. 147, 148 [7 P. 420], the Supreme Court said: "But the period in which the action is barred does not commence to run in any event until after the actual rejection of the claim by the indorsement to that effect. It does not appear from the complaint that the claim has ever been actually rejected. We therefore think the action was commenced in time though it was brought more than three months after the deemed rejection." In Cowgill v. Dinwiddie, 98 Cal. 481, 486 [33 P. 439], the court said: "Under what is believed to be the rule, established by Bank of Ukiah v. Shoemake, it is held that a claimant, who has not elected to consider his claim rejected upon the tenth day after presentation, may subsequently thereto, and at any time before official action by the executor or administrator thereon, elect at his option to consider his claim as rejected, and may, under section 1498, bring an action thereon within three months thereafter, and in the absence of other proof suit brought is conclusive evidence of such election and notice thereof."
It will be noted that in both of these cases the court draws a distinction between actual rejection and deemed rejection *823 and assumes that the deemed rejection took place at the date when the claimant exercised his option. Neither of the cases discusses the meaning of the language that the exercise of the option should be equivalent to a rejection "on the tenth day." In Barclay v. Blackinton, 127 Cal. 189, 193 [59 P. 834], these cases were cited as authority for the statement that the claimant could bring his suit "after the tenth day without any formal rejection of the claim." It was thereupon held that the claimant in that case could bring his suit at any time up to the expiration of one year after letters issued in accordance with the general limitations found in section 353 of the Code of Civil Procedure. It is significant that following these decisions section 1498 was amended to read as section 714 of the Probate Code now reads providing that the claimant could sue within three months "after the date of service" of notice of rejection.
But section 4078 of the Political Code is based upon the County Government Act of 1897 (Stats. 1897, p. 452), section 43 of which is identical with section 4078 of the Political Code in respect to the right of the claimant against a county to deem non-action equivalent to a final rejection. When we recall that Bank of Ukiah v. Shoemake was decided in 1885 and that Cowgill v. Dinwiddie was decided in 1893, we are faced with the doctrine that the Legislature is deemed to have been cognizant of the judicial interpretation of the statute and that a re-enactment of the same statute, or an enactment of another in similar language, is to be construed as an adoption of such judicial interpretation. Upon the rule of the cases cited above we conclude that plaintiff, having exercised his option when he filed his action on June 20, 1940, to recover for injuries which were sustained on June 22, 1939, was within the limitations of section 340 of the Code of Civil Procedure and was also within the period of six months "after the final action of the board" fixed by section 4078 of the Political Code.
As heretofore stated, the question of negligence is not before us on this appeal. Neither the statutes nor the rules of court provide for cross appeals in situations of this kind. When judgment is entered against the county it should not be prejudiced by anything said at this time if it should elect to appeal, and thereupon put in issue the finding of negligence.
[3] Appellant's third point does not require extended discussion. Cases cited by him hold that the particular judgments *824 for the death of a minor child were not excessive in amount. But it has been held repeatedly that the amount of damages to be awarded in a particular case should be left to the trier of the facts and should be determined upon the circumstances of each case. What might not be excessive in a particular case is no proof that a smaller amount is inadequate where the circumstances and conditions are not the same.
The judgment is reversed with directions to enter judgment for the plaintiff on the findings in the sum heretofore fixed by the trial court.
Spence, J., and Dooling, J. pro tem., concurred.
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80 S.E.2d 334 (1954)
EVERLY
v.
SCHOEMER et al.
No. 10595.
Supreme Court of Appeals of West Virginia.
Submitted January 26, 1954.
Decided March 2, 1954.
*336 Julius W. Singleton, Jr., Morgantown, for appellant.
William E. Glasscock, Donald G. Lazzelle, Morgantown, for appellees.
*335 LOVINS, Judge.
This is a suit for specific performance brought in the Circuit Court of Monongalia County, by Oma Schoemer Everly, against Louis E. Schoemer, Agnes Schoemer, Louis Mantini and Josephine Mantini. The Circuit Court entered a decree granting the plaintiff the relief prayed for. The defendant, Louis E. Schoemer prosecutes this appeal.
Oma Schoemer Everly and Louis E. Schoemer were married April 28, 1929, and lived together until October 21, 1947, when they were divorced and thereafter remarried to other persons. Oma Schoemer Everly is now the wife of John E. Everly, Jr. and Agnes Schoemer is the wife of Louis E. Schoemer. Louis Mantini and Josephine Mantini are parties to the agreement hereinafter mentioned.
By an agreement bearing date the 30th day of April, 1942, the Mantinis agreed to sell to the Schoemers Lot number 5, Block 3 of the Homeside Addition to the second ward of the City of Morgantown, Monongalia County, West Virginia, on which was situated a dwelling house. The Schoemers agreed to pay $5,760, without interest for the real estate, which purchase price was payable in 120 equal monthly installments of $48 each. Certain other stipulations were contained in the agreement, unnecessary to mention.
A divorce was granted to the plaintiff herein, on her bill of complaint which was not contested by Louis Schoemer. The custody of the two children born to Louis and Oma Schoemer was granted to her. Louis Schoemer was required to pay the sum of $100 per month for the support of the two children. Oma Schoemer did not ask for alimony in the divorce suit, but in the decree it was provided that she waived alimony "now and in the future", and it was accordingly so decreed.
On the date of the agreement, no divorce between the Schoemers was contemplated. At the time of the separation and divorce of the Schoemers, the sum of $3,072 had been paid on the purchase price. Since their divorce, the residue of the purchase price has been paid, amounting to $2,688. Louis Schoemer, according to his testimony, has expended since the divorce the sum of $2,615 for repairs and maintenance of the real estate, which includes taxes thereon and insurance premiums covering improvements.
The plaintiff testified that she has paid some of the installments due on the purchase price of the real estate before and after her divorce. But her testimony is indefinite as to the number of installments and the amount paid by her. The defendant, Louis Schoemer, asserts that he has paid all of the purchase price and that the plaintiff paid no part thereof.
After the divorce was granted, according to the testimony of Louis Schoemer, his former wife informed him that he could take the property and the children. In this, he is corroborated by the testimony of his mother.
After leaving her former home, the plaintiff herein stayed away for a time, the duration of her absence not being shown by the record. At the solicitation of her daughter, she returned and resided at her former home until some time in March, 1949. During the time she resided at her former home, Louis Schoemer, with the exception of a period of two months, when he stayed with his mother, also resided in the former family home.
There seems to have been some indefinite arrangement under which the Schoemers would pay certain amounts out of their respective salaries. Exactly how much was paid by either is not shown.
Louis Mantini assumes the position that he is willing to convey the real estate to whomsoever the court may require.
On the foregoing showing, the trial court decreed that the Mantinis execute and deliver a deed of conveyance, conveying the *337 real estate in equal shares to Oma Schoemer Everly and Louis Schoemer, and in default of the execution of such deed, appointed a commissioner who should execute and acknowledge the deed, carrying out the decree of the court and decreed that the plaintiff recover costs.
The defendant, Louis Schoemer, is the only defendant who prosecutes an appeal. He contends that the plaintiff is not entitled to a decree of specific performance and a decree for costs, and that it was error to grant such relief.
This suit presents a rather anomalous situation. Generally, the property rights of a husband and wife are settled in a divorce suit between them. In this instance however, no such settlement was made or attempted.
A court of equity has jurisdiction of divorce cases by virtue of statute conferring such jurisdiction. Parks v. Parks, 109 W.Va. 138, 141, 153 S.E. 242, vide: "* * * For the purpose of making effectual any order or decree provided for in this section the court, or judge thereof in vacation, may make any order or decree concerning the estate of the parties, or either of them, as it shall deem expedient." Chapter 70, Article 2, Section 15, Acts of the Legislature, 1953, Regular Session. A provision similar to that quoted above, will be found in Section 15, Chapter 35, Acts of the Legislature, 1935, Regular Session.
Additional power is given a court of equity with respect to the property of one spouse in possession or control of the other. Section 19, Chapter 35, Id.
Though the entire record in a divorce suit between the plaintiff and the defendant, Louis Schoemer is not before us, the decree of the divorce, pronounced by the Circuit Court of Monongalia County, makes no mention of the property rights. It is therefore a fair assumption that the question of property rights was not raised in the divorce suit and such question certainly is not mentioned in the decree.
Except in certain instances, where one person buys land under an executory agreement and the purchase money is paid by another, an enforceable constructive trust arises in favor of the one paying the purchase price. Currence v. Ward, 43 W.Va. 367, 27 S.E. 329. It is unnecessary to have this agreement in writing to enforce such trust, and the trust may be shown by oral evidence. Currence v. Ward, supra. See Lorentz v. Lorentz, Ex'r, 14 W.Va. 809, relative to the duty of a vendor who has been specifically required by a written contract to convey land to a person other than the one who paid the purchase money.
In this jurisdiction, however, an agreement involving a husband and wife as joint vendees of real estate is subject to the principle that one-half of the purchase money paid by a husband is presumed to be a gift to the wife. If the husband, or a third person, at his direction, conveys all or part of the real estate to the wife, such conveyance is likewise presumed to be a gift to the wife. Boyd v. Boyd, 109 W.Va. 766, 155 S.E. 303.
"When a grant is made to two persons jointly, the legal presumption is that each is seized of an equal share or interest, unless the contrary appears in the grant." Coffman v. Coffman, 108 W.Va. 285, 150 S.E. 744.
Where the joint vendees are husband and wife, each takes a moiety of the property. As to the wife's moiety, in the absence of a showing to the contrary, the husband is presumed to have intended such moiety as a gift to his wife. Edwards v. Edwards, 117 W.Va. 505, 185 S.E. 904. See Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537.
The principle relating to a gift by a husband to a wife is applicable to this suit. See Wood v. Wood, 126 W.Va. 189, 28 S.E.2d 423.
But in the instant suit, we are not concerned with such conveyance. We have *338 here an agreement made by two persons who were then husband and wife, requiring certain installment payments of the purchase price for real estate to be made. Before the agreement was fully consummated, the vendees named in such agreement were divorced.
Though the husband may have paid the entire amount of $3,072 during their marriage, such payment by him amounted to a gift to his then wife of one-half of the payments. She is entitled to one-half of the purchase price paid on their joint agreement with the Mantinis, while she was the wife of Louis Schoemer.
But, as to the $2,688 paid on the purchase price by Louis Schoemer after the divorce, no such presumption arises, but the contrary is to be supposed, and we hold that the plaintiff herein is not entitled to any part of the installment payments made after the divorce.
There is no proof showing that any improvements were made on the property during the marriage of the plaintiff and Louis Schoemer. The improvements and expenditures were made after their marriage was ended by divorce. We do not think that the plaintiff is entitled to recover any part of the amounts paid for improvements by Louis Schoemer after the divorce.
In accordance with the foregoing, we are of opinion that the plaintiff should receive $1,536, without interest thereon, for her share in the real estate which the Mantinis agreed to convey to her and Louis Schoemer.
Louis Schoemer, having prayed in his separate answer for specific performance by Louis Mantini and Josephine Mantini, we are of opinion that he is entitled to a deed of conveyance from Louis Mantini and Josephine Mantini, conveying to him Lot 5 in Block 3, of the Homeside Addition, to the second ward of the City of Morgantown, Monongalia County, West Virginia.
The plaintiff, being entitled to the amount as above indicated, should have security for the payment of that amount. "An equitable lien to charge some particular property with a debt or obligation may be implied and declared by a court of equity out of general consideration of right and justice as applied to the relation of the parties and the circumstances of their dealings." Syllabus, Milligan Coal Co. v. Polowy, 108 W.Va. 458, 151 S.E. 429.
For a further discussion of the question of equitable liens, see Spencer v. Williams, 113 W.Va. 687, 688 et seq., 170 S.E. 179, 89 A.L.R. 1451; Foster v. Frampton-Foster Lumber Co., 96 W.Va. 325, 330, 123 S.E. 50, 52. "An equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or obligation or is declared by a court of equity out of general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings. A lien necessarily excludes any idea of ownership by the party claiming it. A lien, whether implied or by contract, confers no right of property upon the holder. It is neither jus ad rem nor jus in re." Foster v. Lumber Co., supra.
The situation disclosed by the record and considering the circumstances in which the plaintiff and the defendant, Louis Schoemer are placed, we think that right and justice call for the impressment of an equitable lien on the real estate.
We are therefore of the opinion that the real estate should be impressed with an equitable lien to secure the payment of the amount due Oma Schoemer Everly, and that the conveyance to Louis Schoemer should provide for such lien.
The amount due the plaintiff in this suit shall be paid within a reasonable time from the entry of a final decree by the Circuit Court of Monongalia County, carrying out the mandate of this Court.
In accordance with the foregoing, the decree of the Circuit Court of Monongalia *339 County is reversed, and this cause is remanded to that Court, with directions to enter a decree in accordance with the principles enunciated in this opinion.
Reversed and remanded; with directions.
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210 Ga. 355 (1954)
80 S.E.2d 160
SMITH
v.
SMITH.
18421.
Supreme Court of Georgia.
Argued January 13, 1954.
Decided February 9, 1954.
Wendell C. Lindsey, Noah J. Stone, for plaintiff in error.
Paul Webb, Jr., Bertram S. Boley, contra.
*358 CANDLER, Justice.
1. While no motion has been made to dismiss the writ of error, it is nevertheless this court's duty to consider and determine its jurisdiction in all cases brought up for review in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. Brockett v. Maxwell, 200 Ga. 213 (36 S.E.2d 638); Lanier v. Bailey, 206 Ga. 161 (56 S.E.2d 515); Clay v. Smith, 208 Ga. 423 (67 S.E.2d 235).
2. In this State a party to litigation may except either to a final judgment adverse to him or to one which, if it had been rendered as claimed by him, would have been a final disposition of the cause. Code § 6-701; Ramey v. O'Byrne, 121 Ga. 516 (49 S.E. 595).
3. In the case at bar the defendant's motions to vacate the sheriff's two returns of service, and thus thereby adjudicate that no legal service had been perfected by him, were in effect special pleas to the court's jurisdiction of his person. After the ruling that the motions were not subject to and should not be dismissed on the demurrers which the plaintiff interposed thereto, they were sustained by the court on the facts stipulated by the parties, but no judgment dismissing the case was sought by the defendant or entered by the court. Hence, after the defendant's motions were disposed of by the court, the plaintiff's case was still pending in the trial court. This being true, the writ of error is premature. Warren v. Blevins, 94 Ga. 215 (21 S.E. 459); Ross v. Mercer, 115 Ga. 353 (41 S.E. 594); State Mutual Life &c. Assn. v. *356 Kemp, 115 Ga. 355 (41 S.E. 652); Baldwin v. Lowe, 129 Ga. 711 (59 S.E. 772). All of the authorities just cited were cases in which special pleas to the jurisdiction of the court, either as to subject matter or as to person, were interposed by the defendants, but in which there were no motions to dismiss the cases. This court in each of those cases held that an adjudication of the issue made by the special plea did not dispose of the main case; and, after so holding, the court dismissed the writ of error in each case on the ground that it had been prematurely sued out. In Baldwin's case, supra, this court, speaking through Mr. Justice Lumpkin, said: "Striking an imperfect plea to the jurisdiction filed by the sole defendant, and rejecting an amendment thereto, is not a final judgment, and does not dispose of the case; nor would it have done so had the amendment been allowed and the motion to strike been overruled." And in Ross v. Mercer, supra, where the defendant filed a special plea to the court's jurisdiction of her person, this court, speaking again through Mr. Justice Lumpkin, said: "It was contended by counsel for the plaintiff in error that Mrs. Ross had the right to bring the case here under the Civil Code, § 5526 [Code 1933, § 6-701], because, as insisted, the `judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause.' Manifestly, this position is untenable. The only judgment which could have been entered upon the verdict returned on the special issue was that the court had jurisdiction, and that the trial on the main case should accordingly proceed. Even if a verdict sustaining the plea to the jurisdiction had been rendered, the main case would not have been at an end, for it would still have been incumbent upon the court to enter in that case a judgment of dismissal." We have not overlooked the rulings of this court in Ray v. Hicks, 146 Ga. 685 (92 S.E. 48). and Williams v. Mann, 188 Ga. 212 (3 S.E.2d 557). In each of those cases there was a motion to dismiss the case on the ground that the court did not have jurisdiction of the defendant's person, and it was held in each case that a judgment sustaining the motion to dismiss would have terminated the case. As we have previously pointed out, in the instant case there was no motion to dismiss the plaintiff's petition. Accordingly, no judgment has been rendered in the cause which can be brought to this court for review by a direct bill of exceptions.
Writ of error dismissed. All the Justices concur.
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243 Ga. 770 (1979)
257 S.E.2d 182
KNIGHT
v.
THE STATE.
34570.
Supreme Court of Georgia.
Submitted February 19, 1979.
Decided April 5, 1979.
S. Phillip Brown, for appellant.
W. Donald Thompson, District Attorney, Willis B. Sparks, III, Assistant District Attorney, Arthur K. Bolton, Attorney General, Daryl A. Robinson, Assistant Attorney General, for appellee.
BOWLES, Justice.
Appellant, Terry Knight, was convicted of burglary in that he unlawfully entered the residence of the victim with intent to commit the felony of aggravated assault and with intent to commit rape. He had been indicted under the Habitual Offender Act (Code Ann. § 27-2511), his previous felony offense being Criminal Attempt to Commit Aggravated Sodomy. As a second offender under the Habitual Offender Act, one convicted must receive the maximum sentence for the offense of which he is convicted. The trial judge sentenced appellant to twenty years in confinement, the maximum sentence for burglary, stating that he believed he had no authority to probate any part of the sentence.
We affirm appellant's conviction but reverse his twenty year sentence in confinement and remand for a new sentencing hearing.
1. Appellant first contends that the Habitual Offender Act violates separation of powers (Art. I, Sec. II, Par. IV of the Georgia Constitution; Code Ann. § 2-204) in that the legislature has mandated how trial judges shall sentence second offenders. Appellant is particularly concerned that the trial judge is permitted to exercise no discretion between a minimum and maximum sentence as he is under other criminal statutes. The question then is, is the power to prescribe punishments for crimes a judicial or legislative function and if it is legislative can the legislature eliminate a trial judge's discretion in *771 sentencing?
"The power to create crimes and to prescribe punishment therefor is legislative." Johnson v. State, 169 Ga. 814, 817 (152 S.E. 76) (1929). (Emphasis supplied.) "The judge is a mere agent of the law. He has no discretion except as it is given him. The penalty is affixed by law." Hill v. State, 53 Ga. 125, 127 (1874). (Emphasis in original.) "In the absence of legislation, the judiciary cannot exercise discretion in fixing the quantum of punishment to be inflicted upon criminals. Such power is not one which inheres in the judicial department." Johnson v. State, supra. Thus it is within the power of the legislature to direct the punishment to be prescribed for second offenders and to leave no discretion to the trial judge.
Appellant next asserts that separation of powers is violated because of prosecutorial discretion. He argues that since a district attorney can decide whether to indict a criminal under the Habitual Offender Act or not, he is usurping the trial court's duty to sentence second offenders and, in fact, fixing the sentence himself. Prosecutorial discretion in this situation is no different from prosecutorial discretion in any other. Given any set of facts, prosecutors must exercise discretion as to what the criminal charge will be. Homicides could be indicted as murder, voluntary manslaughter, or involuntary manslaughter. By not seeking the death penalty in a murder case, a prosecutor in effect fixes the sentence that is, life imprisonment. Therefore, since prosecutorial discretion comes into play under every criminal statute, it is not, of itself, grounds for striking a given statute down as unconstitutional. See: State v. Martin, 190 Neb. 212 (206 NW2d 856) (1973).
Appellant next contends that the arbitrary and selective manner in which Code Ann. § 27-2511 is used throughout the State of Georgia violates due process, equal protection, and constitutes cruel and unusual punishment. At the second sentencing hearing appellant attempted to introduce testimony and affidavits into evidence to show that although the policy in the Macon Judicial Circuit is to indict all candidates for the Habitual Offender Act as habitual offenders, that is not the policy *772 in several other judicial circuits around Georgia. The affidavits showed that the Habitual Offender Act was never used in five of the circuits and was rarely used in a sixth. (Appellant had taken a sampling of circuits from around the state). The testimony and affidavits were excluded from evidence as irrelevant and properly so. The United States Supreme Court in Oyler v. Boles, 368 U.S. 448 (82 SC 501, 7 LE2d 446) (1962) held that even the conscious exercise of some selectivity in enforcement of a recidivist statute was not a constitutional violation provided the selection was not "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." 368 U. S. at 456. See also Bordenkircher v. Hayes, 434 U.S. 357 (98 SC 663, 54 LE2d 604) (1978). The affidavits and testimony presented on behalf of appellant showed no such standard. Therefore, they were irrelevant to the proceeding and correctly excluded. Appellant himself admits that the district attorney in the Macon Judicial Circuit uses the Habitual Offender Act in 100 per cent of the cases in which it is appropriate. His objection is that if he had committed his crime elsewhere in the state he may not have been dealt with so severely. This contention was rejected recently by the Fifth Circuit Court of Appeals, in Rummel v. Estelle, 587 F2d 651 (5th Cir. 1978). There the court pointed out that a petitioner challenging his sentence carries a heavy burden which he does not discharge merely by showing that he is being treated more harshly than he would be elsewhere. 587 F2d at 655.
Appellant does not allege that a sentence of twenty years for burglary with intent to commit aggravated assault and intent to commit rape is, of itself, cruel and unusual. His complaint is that it is mandatory and leaves a trial judge no discretion to impose a lesser sentence. Since the Habitual Offender Act statute as applied here does not offend constitutional principles and the sentence is not cruel and unusual simply as to its length, appellant's challenges to the statute cannot be sustained. The trial court correctly overruled his demurrers and plea in abatement.
2. In a related enumeration of error, appellant contends that the trial court erred in finding that it could *773 not probate any part of appellant's sentence under Code Ann. § 27-2502, but that his sentence had to be twenty years in confinement. Appellant also argues that Code Ann. § 27-2502 effectively repealed § 27-2511 by implication and thus he was sentenced under an invalid statute.
Code Ann. § 27-2502 was enacted and § 27-2511 was amended to its present form by the 1974 General Assembly. Further, this was done in the same Act by that body. See, Ga. L. 1974, pp. 352, 354, 355. Under these circumstances, there is no repeal by implication as the legislature obviously intended the statutes to be read together. However, since the two statutes to be read together, we believe the trial court did err in finding that no part of a sentence under that part of § 27-2511 dealing with second offenders could be suspended or probated.
The relevant portion of Code Ann. § 27-2502 is as follows: "Upon a verdict or plea of guilty in any case involving a misdemeanor or felony the judge fixing such sentence shall prescribe a determinate sentence for a specific number of years, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, except in cases in which life imprisonment or capital punishment is imposed. The judge imposing said sentence is hereby granted power and authority to suspend or probate said sentence, under such rules and regulations as he deems proper."
The wording of this statute is plain a judge can probate a sentence in any case involving a felony except where the punishment is life imprisonment or death. Unless for some reason this statute is inapplicable to the case at bar, it shall control.
Some criminal statutes are, by their express terms, removed from the application of § 27-2502. Code Ann. § 26-1601 (b) dealing with a second or third conviction of burglary states: "Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred or withheld for any offense punishable under this subsection." Code Ann. § 26-1902 dealing with armed robbery states in subsection (b): "Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred or withheld for any offense punishable under *774 subsection (a) of this section." Code Ann. § 68B-308 (c) dealing with habitual violators caught driving without a driver's license provides that "no portion of the sentence may be suspended, rebated or probated."
It is only logical that if the legislature had intended that a conviction of a second offense under § 27-2511 should result in a sentence that could not be suspended or probated, it would have said so just as it did in the statutes cited. Furthermore, the language of § 27-2511 indicates that such a result was not intended for second offenders. One convicted of a second offense is to be "sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted ..." One convicted of a fourth offense shall "serve the maximum time provided in the sentence of the judge based upon said conviction" and shall not even be eligible for parole until the maximum sentence is served. (Emphasis supplied.)[1]
*775 Conceivably the statute might be interpreted to mean that parole is the only way to escape the effect of § 27-2511 and even parole is only possible if one is a second offender. However, criminal statutes must be strictly construed against the state and liberally in favor of human liberty. Matthews v. Everett, 201 Ga. 730 (41 SE2d 148) (1947). If a statute increasing a penalty is capable of two constructions, it should be construed so as to operate in favor of life and liberty. Gee v. State, 225 Ga. 669 (171 SE2d 291) (1969). This being so, we hold that § 27-2511 does not compel a maximum sentence in confinement for second offenders but that the trial judge has discretion to probate or suspend this maximum sentence pursuant to § 27-2502. Therefore, the case must be remanded to the trial court for a new sentencing hearing in which the trial judge may exercise discretion as to how appellant's twenty year sentence may be served.
3. Appellant contends that his character was impermissibly placed in issue at trial and thus the trial court erred in overruling his motion for a mistrial. A police officer assigned to the Sex Crime Unit was testifying about her investigation of the crime. The district attorney asked her what action she took after hearing that a suspect was named Terry Knight and she answered, "Well, we had a Terry Knight so we went to our department, our I.D. Department..." At this point the judge interrupted and sent the jury out. Apparently what the witness was about to refer to was a "mugshot" of appellant which was later used in a photographic lineup. Under previous decisions of this court, actually exhibiting a mugshot to the jury has not been held erroneous. Lee v. State, 237 Ga. 179 (227 SE2d 62) (1976); Creamer v. State, 229 Ga. 704 (194 SE2d 73) (1972). Therefore, an arguable reference to a mugshot, while not to be encouraged, did not impermissibly place appellant's character in issue.
4. Appellant next asserts that the trial judge erred in giving the so-called "Allen" or "Dynamite" charge to the jury. First, the record does not reflect any objection at trial to the charge. In any event, the precise charge given has been approved by this court and is not error. Spaulding v. State, 232 Ga. 411 (207 SE2d 43) (1974) and *776 cits.
5. Appellant's last enumeration of error alleges that the trial court erred in ruling testimony and affidavits from various district attorneys around the state irrelevant. This contention was discussed in division one of this opinion and no error was committed in this regard.
Judgment affirmed in part, reversed and remanded in part. All the Justices concur.
NOTES
[1] Code Ann. § 27-2511 in its entirety reads: "If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted: Provided, however, any person who, after having been three times convicted under the laws of this State of felonies, or under the laws of any other State or of the United States, of crimes which, if committed within this State would be felonies, commits a felony within this State other than a capital felony, must, upon conviction of such fourth offense, or of subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction, and shall not be eligible for parole until the maximum sentence has been served. For the purpose of this section conviction of two or more crimes charged on separate counts of one indictment or information or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction."
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239 N.W.2d 109 (1976)
Warner S. KELLY, Appellant,
v.
Lou V. BREWER, Appellee.
No. 2-57803.
Supreme Court of Iowa.
February 18, 1976.
Rehearing Denied April 12, 1976.
*111 John M. Thompson of Wm. F. Olinger Law Offices, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Special Asst. Atty. Gen., and Michael P. Murphy, Asst. Atty. Gen., Des Moines, for appellee.
Heard by MOORE, C. J., and REES, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.
REES, Justice.
This is an appeal in an action brought by petitioner Warner S. Kelly under the provisions of chapter 663, The Code, 1973, in which he sought relief from his confinement in administrative segregation at the state penitentiary at Fort Madison. After hearing in trial court, the writ of habeas corpus which had previously issued was annulled. Petitioner appeals. We affirm.
The circumstances of petitioner's imprisonment in the penitentiary at Fort Madison have come to the attention of the federal courts as well as the courts of this state. Due to a substantial possibility that action by the United States Court of Appeals for the Eighth Circuit might have rendered moot and academic any opinion by this court on Kelly's appeal in this case, we deferred the filing of an opinion until action by the Circuit Court. That court has now taken such action and filed opinion on November 26, 1975. (See Warner S. Kelly and Samuel S. Parras, appellees v. Lou V. Brewer, Warden, appellant, No. 75-1523, and Warner S. Kelly and Samuel S. Parras, cross-appellants v. Lou V. Brewer, Warden, cross-appellee, No. 75-1562.) We therefore believe our disposition of the appeal pending in this court is now appropriate.
Petitioner was charged with, and convicted of, second degree murder for the stabbing of a prison guard at the penitentiary on June 8, 1972. Prior to that time he had been serving sentences totalling 13 years for the crimes of kidnapping, malicious injury to a building, lascivious acts with a child, and escape. Defendant took a direct appeal to this court following his conviction for murder, and we affirmed. See State v. Kelly, 224 N.W.2d 456 (Iowa 1974).
Before and after trial on the murder charge, petitioner was confined in the penitentiary under conditions described by prison personnel as "administrative segregation." Petitioner spent four days in Building 97 in the institution, which he described as "the hole," during which time he was kept in a completely darkened cell on the dark side of the building with steel flaps covering the window openings. During that time he was given no clothing, bedding, eating utensils or toilet tissue. After that four-day period and a subsequent transfer for a short time to the Iowa Security Medical Facility at Oakdale, petitioner was moved to Building 20, a maximum security lock-up facility, where his administrative segregation was accomplished. His cell there was located on the top tier of stacked cells, and was the last such cell on the east side next to the shower. The nearest inmate, and the only other one on the same tier, was 48 feet away from him with several double cells intervening, and it appears petitioner could communicate with *112 the other inmate on that tier only by shouting.
The conditions of petitioner's confinement in Building 20 in what was termed "administrative segregation" were more humane than the conditions imposed upon him in his four-day stay in Building 97. His cell in Building 20 measured 12 feet by 8 feet; the walls separating the cells were solid with a front constructed of bars. The cell was furnished with a small metal sink, a metal shelf, a table stool, bed and toilet. Petitioner was allowed some personal belongings, such as a television set, a radio, writing materials and toilet articles. He was afforded library privileges, smoking privileges and canteen privileges.
Interaction with other inmates, however, was extremely restricted. Petitioner was allowed out of his cell only to see visitors, to exercise for about 30 minutes a week during warm weather and to take two showers per week. Anytime he left his cell, he was handcuffed and escorted by three correctional officers. He was permitted to see a spiritual counselor from the Church of the New Song in his cell for about 15 minutes per week, but was not permitted to participate in the prison's work program.
In early 1974 defendant filed a petition for a writ of habeas corpus in the federal district court challenging the circumstances of his confinement, and alleging that his indefinite administrative segregation deprived him of due process under the Fourteenth Amendment to the Constitution of the United States and violated the proscription of the Eighth Amendment against cruel and unusual punishment. While the federal district court rejected the claim of cruel and unusual punishment insofar as it related to the conditions of petitioner's imprisonment subsequent to the four-day stay in Building 97, that court did perceive merit in petitioner's allegations of deprivation of due process, and accordingly ordered that the prison administration develop meaningful standards for periodic review to determine whether Kelly should be returned to the prison's general population. Kelly v. Brewer, 378 F. Supp. 447, 455-456 (S.D.Iowa 1974).
On June 17, 1975, the federal district court ordered prison authorities to release Kelly into the general prison population because of the State's failure to implement a plan designed to correct the constitutional deficiencies of the earlier procedure. On the following day Kelly was released to the general prison population.
As above noted, the United States Court of Appeals for the Eighth Circuit considered the appeal and the cross-appeal and filed opinion on November 26, 1975. The plan ordered by the federal district court for review of petitioner's status was set aside as too rigorous and as substantially exceeding the constitutional necessities of the case. Nonetheless, guidelines for satisfying due process were imposed upon the warden of the penitentiary for review of the petitioner's situation, with review of the warden's determination in federal district court. We must assume petitioner's present confinement, whether it be in administrative segregation or with the general population of the institution, is the result of constitutionally permissible considerations and procedures consistent with due process of law. We must also assume the warden of the institution has acted, and will act, scrupulously in conformity with the direction of the Court of Appeals for the Eighth Circuit.
Accordingly, we turn to a consideration of Kelly's action in our state court, which is on appeal to us here, and which turns upon issues of statutory interpretation rather than considerations of constitutional deficiencies.
Petitioner instituted the instant action on September 26, 1974, by filing a petition in the District Court of Lee County alleging he was unlawfully detained in the penitentiary in "solid lock-up status." At a hearing on October 9, 1974, petitioner and the respondent warden testified to conditions of petitioner's imprisonment and the reasons *113 for his detention in administrative segregation. The heart of petitioner's claim was that he had been confined in "solitary imprisonment" contrary to § 246.31, The Code, 1973.
After hearing, the District Court of Lee County held, inter alia, that petitioner had not been, and was not being, subjected to "solitary confinement" within the meaning of the above statute, and that he had failed to establish grounds for release from administrative segregation. This appeal was taken from that finding and concomitant conclusion of law.
The one issue stated for review by petitioner, although argued in four parts, is that trial court erred in holding petitioner was not subjected to "solitary imprisonment" within the meaning of § 246.31, The Code.
After due consideration, we conclude this case must properly be resolved upon a different ground, i. e., construction of the word, "discipline" in the above cited statute. "It is our duty to affirm if any proper basis appears for the ruling of the trial court even though it is not the one on which it was put or on which the court acted. [citations] Many a learned court is occasionally right for the wrong reason * *. A court decision which is proper on any ground shown by the record will not be disturbed merely because the decision is based on an unsound or erroneous reason." General Motors Acceptance Corporation v. Keil, 176 N.W.2d 837, 841-842 (Iowa 1970).
Therefore, the issue might be stated: Does § 246.31, The Code, render unlawful defendant's imprisonment in administrative segregation?
I. We have reached the conclusion the proper resolution of this appeal turns not upon the judicial construction of the words "solitary imprisonment" in § 246.31, The Code, but rather upon an interpretation of the word "discipline" in the same statute. Said statute provides:
"Hard labor and solitary imprisonment. All commitments to either of said institutions must be at hard labor. Solitary imprisonment of prisoners shall not be employed except for the purpose of discipline."
A good portion of petitioner's brief on appeal is devoted to the argument that any confinement which prevents a prisoner from serving his sentence at hard labor is "solitary imprisonment." As mentioned above, trial court concluded petitioner's status in administrative segregation did not constitute "solitary imprisonment."
The respondent warden in his brief supports trial court's line of reasoning, but urges more pointedly that petitioner is in error in attaching too narrow a meaning to the term "discipline" as used in § 246.31. Petitioner's original brief assumes that "discipline" refers only to sanctions imposed for infractions of specific prison rules, and if this assumption is correct it would appear solitary imprisonment can be imposed only as punishment for such infractions.
We believe there is sufficient evidence in the record to support the holding that Kelly's confinement was for purposes of "discipline" within the meaning of § 246.31, and accordingly conclude trial court's ruling should be affirmed without resort to its holding that petitioner was not confined in solitary imprisonment. While it might be questionable whether trial court was correct in its conclusion regarding solitary imprisonment, we shall not disturb the decision if other sufficient grounds for affirmance appear in the record. G.M.A.C. v. Keil, supra.
This appeal requires us to judicially interpret Code § 246.31. Petitioner places a restricted interpretation on the word "discipline" that is unwarranted in light of familiar principles of statutory interpretation.
It is our responsibility to ascertain and give effect to legislative intent. State v. Prybil, 211 N.W.2d 308, 311 (Iowa 1973). We must look to what the legislature said, rather than what it should or might have *114 said. Rule 344(f)(13), Rules of Civil Procedure; Davenport Water Company v. Iowa State Commerce Comm., 190 N.W.2d 583, 595 (Iowa 1971). Words are given their ordinary meaning unless defined differently by the legislature or possessed of a peculiar and appropriate meaning in law. State v. Prybil, supra; Sioux Associates, Inc. v. Iowa Liquor Control Comm., 257 Iowa 308, 311, 132 N.W.2d 421, 424; see § 4.1(2), The Code, 1975. Effect is to be given to the entire statute. No court, under the guise of judicial construction, may add words of qualification to the statute in question or change its terms. State v. Prybil, supra; Northern Natural Gas Company v. Forst, 205 N.W.2d 692, 696 (Iowa 1973); Maguire v. Fulton, 179 N.W.2d 508, 510 (Iowa 1970).
Two more specialized rules of statutory interpretation are particularly helpful in the matter before us. Changes made by revision of a statute will not be construed as altering the law, unless the legislature's intent to accomplish a change in its meaning and effect is clear and unmistakable. General Mortgage Corporation of Iowa v. Campbell, 258 Iowa 143, 150, 138 N.W.2d 416, 419-420; Spencer Publishing Company v. City of Spencer, 250 Iowa 47, 54, 92 N.W.2d 633, 637; Dennis v. Independent School District of Walker, 166 Iowa 744, 750, 148 N.W. 1007, 1009. If the revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining intent. General Mortgage Corporation of Iowa v. Campbell; Spencer Publishing Company v. City of Spencer; Dennis v. Independent School District of Walker, all supra.
The history of the section with which we are concerned is enlightening. Section 3118, which first appeared in the 1851 Code of Iowa, provided:
"All punishment in the penitentiary by imprisonment must be by confinement to hard labor, and not by solitary imprisonment; but solitary imprisonment may be used as a prison discipline for the government and good order of the convicts as hereinafter mentioned."
The identical provision appeared as § 5137 of the 1860 Code, § 4770 of the 1873 Code, and § 5675 of the 1897 Code.
The first material variation in the language of the statute occurred in the 1924 Code, where it appeared in what is now its present form, as set out supra.
It is readily apparent that the change made in the first sentence reflected the change in status of the penitentiary at Anamosa to its present designation as the Men's Reformatory, and the application of the statute to both institutions.
We are concerned here, however, with the nature of the language change authorizing solitary imprisonment "for the purpose of discipline" rather than "as a prison discipline for the government and good order of the convicts as hereinafter mentioned."
A careful consideration of the problem leads us to the conclusion that it is neither clear nor unmistakable that the legislature, in modifying the language of the statute, intended to effect a change in the meaning thereof. In fact, we believe there is much more support for the conclusion that the change merely reflects an economy of style.
Petitioner concedes in his brief that the change in language of the statute was probably not meant to alter the meaning thereof. Other factors convince us of the correctness of this view.
In 1924, the Fortieth Extra General Assembly accomplished a complete revision of the Code of Iowa. The great bulk of the legislation passed by that body, including the instant statute, was not printed in so-called "session laws," but was incorporated directly into the revised Code of Iowa, 1924. We believe the fact of the complete revision lends less support to the proposition that a change of meaning was intended by the change of language than it does to the proposition that the change reflected only economy of words or style.
*115 Furthermore, we have examined the Journal of the House of the 40th G.A. (Extra Session), and it contains no discussion or debate on the instant section on the floor of the legislature. Although discussions on numerous sections are recorded, it appears the section which we now consider was passed without comment. Judicial notice may be taken of proceedings as recorded in legislative journals to the same extent that such notice might be taken of the statutes of such legislative body. Socony Vacuum Oil Company v. State, 170 N.W.2d 378, 382 (Iowa 1969).
There being no evidence of legislative intent to alter the meaning of what is now Code section 246.31 by the language changes which occurred in effecting the revision of the Code in 1924, we may examine the prior statute to ascertain the meaning of "discipline." It is clear from express language of § 3118 of the Code, 1851, and successive codifications of the law that the term "discipline" as used therein encompassed "the government and good order of the convicts." We must interpret the term "discipline" in § 246.31 as encompassing the same concept.
Other considerations, although not conclusive if viewed singly, support this interpretation. First, we note that if the legislature had wished to limit "discipline" to the narrow meaning urged by petitioner, i. e., punishment for the infraction of specific prison rules, it could have incorporated such limitation into a statutory definition or preamble to the statute. See, e. g., 38 Ill.Code Anno. § 1003-1-2(h) (1973): "`Discipline' means the rules and regulations for the maintenance of order and the protection of persons and property within the institutions and facilities of the Department and their enforcement." This court may not add its own unwarranted words of qualification to the statute. See Northern Natural Gas Co. v. Forst, supra, 205 N.W.2d at 696.
In addition we must take a long look at the statute against a backdrop of traditional grants of discretion to prison officials with respect to the safe-keeping, security and discipline of prisoners. 72 C.J.S. Prisons § 18, p. 872; Cf. Breeden v. Jackson, 457 F.2d 578 (4 Cir. 1972). We will not attribute to the legislature an intention to so narrowly limit such discretion, absent a clearer showing in this regard by petitioner.
Furthermore, courts have not hesitated to speak of "discipline" in the broader institutional sense. See, e. g., Kelly v. Brewer, supra, 378 F. Supp. 447, 454 ("The prison's only legitimate object of summary placement of a prisoner in administrative segregation under facts similar to those in this case is to maintain order, discipline and security in the institution"); O'Brien v. Moriarty, 489 F.2d 941, 944 (1 Cir. 1974) ("It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks"). Stone v. Egeler, 506 F.2d 287 (6 Cir. 1974) (Transfer of prisoners suspected of being involved in drug traffic to maximum security prison was "disciplinary" in nature.)
Finally, though a court should not entirely resolve a question of intent from an isolated word taken out of context, definitions of such word may be of at least limited significance as one factor for consideration. See Dingman v. City of Council Bluffs, 249 Iowa 1121, 1130, 90 N.W.2d 742, 749. Accordingly, we note that Webster's Third New International Dictionary (unabridged) lists as one definition for the word "discipline": "control gained by enforcing obedience or order (as in school or army); strict government to the end of effective action * * *." This definition is particularly well-suited to an institutional context, such as that which we are here considering.
The record below manifestly supports the conclusion that Kelly's confinement in administrative segregation was for *116 the purpose of "discipline" as we believe the word must be interpreted. Respondent warden testified to the purpose of Kelly's confinement prior to his trial for the prison murder as follows:
"In my view, Mr. Kelly at that time posed a danger in terms of the personal safety of staff and inmates and further, in my view, there was a potential danger to him."
Respondent Brewer testified Kelly's post-trial segregation was for "[t]he security and good order of the institution and the dangers * * *," and "[t]he protection of Mr. Kelly and the protection of the staff and inmates of the institution."
II. Petitioner argues in his reply brief that § 246.8, The Code, when read in conjunction with § 246.31, negates the view that the term "discipline" in the latter section encompasses any more than the concept of punishment for the infraction of specific prison rules. It is true that § 246.8 refers to "disciplinary" rules. The section does not, however, undertake to comprehensively define "discipline." Rather, it simply mandates that prison officials use officially designated modes of punishment and that they keep records of punitive measures used. We perceive nothing in § 246.8 which renders invalid our conclusions reached above.
III. For the reasons above enunciated, we hold petitioner Kelly's confinement in administrative segregation was for the purpose of discipline within the meaning of § 246.31, The Code. This conclusion makes it unnecessary for us to decide whether Kelly's confinement was "solitary imprisonment" within the meaning of the provision. Our conclusion is merely that Kelly's confinement is not prohibited by statute, and this opinion should not be read as ruling upon any of the federal constitutional problems in Kelly's classification which constituted the basis for his petition in the federal courts. We are satisfied that the guidelines announced by the Circuit Court of Appeals in that matter are sufficient to protect Kelly from any possible arbitrary action by prison authorities and to ensure his placement in the prison's general population if and when such action becomes appropriate.
Based upon all of the foregoing, we affirm the action of the trial court in annulling the writ of habeas corpus.
Affirmed.
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80 S.E.2d 44 (1954)
239 N.C. 430
LITTLE et al.
v.
SHEETS et al.
No. 751.
Supreme Court of North Carolina.
January 29, 1954.
*45 Bowie & Bowie, T. C. Bowie, Jr., Wade E. Vannoy, Jr., West Jefferson, for plaintiff-appellants.
Johnston & Johnston, Jefferson, for defendant-appellees.
WINBORNE, Justice.
Appellees, having reserved their objection that the statement of case on appeal was not presented in time, move in this Court for affirmance of the judgment below, or for dismissal of the appeal. This basis on which the motion rests is that the statute G.S. § 1-282 requires that appellant shall cause to be prepared a statement of the case on appeal, and a copy thereof served on the respondent within fifteen days from the entry of the appeal taken; and that while this statute vests the judge trying the case with power, in his discretion, to enlarge the time in which to serve case on appeal, no such power is given to clerks of Superior Court. This Court is of opinion, and now holds, that the point is well taken.
On the other hand, appellants say and contend that the preceding section of the General Statutes, that is, G.S. § 1-281, is applicable, in that it provides that "When appeals are taken from judgments of the clerk or judge not made in term time, the clerk is authorized to make any and all necessary orders for the perfecting of such appeals", and, hence in such case, the clerk is vested with an over-all authority, including power to enlarge time for service of case on appeal.
This position is untenable for these reasons: This proceeding was tried in term time before the presiding judge, without a jury, and judgment was rendered as of the term. The parties only agreed that the judge might render judgment out of term, and out of the district. Moreover, the General Assembly having expressly fixed the time for serving of statement of case on appeal, and having specifically authorized the judge, in his discretion, to enlarge the time, it would seem, therefore, that this procedure is exclusive. The express mention of the one excludes the other. Indeed, it will not be assumed that the General Assembly intended to give to clerk of Superior Court implied authority to do that for which express authority is given to the judge:
"The right to appeal is not an absolute right, but is only given upon compliance with the requirements of the statute". Kerr v. Drake, 182 N.C. 764, 108 S.E. 393, 394. See also State v. Daniels, 231 N.C. 17, at page 24, 56 S.E.2d 2, 7, where it is stated that "rules requiring service to be *46 made of case on appeal within the allotted time are mandatory, not directive."
Therefore this Court is constrained to hold that the case on appeal, shown in the transcript on this appeal not having been served within the time fixed by statute, and there being neither waiver nor valid enlargement of time for service thereof, is a nullity. Hicks v. Westbrook, 121 N.C. 131, 28 S.E. 188; Hall v. Hall, 235 N.C. 711, 71 S.E.2d 471, and cases cited.
However, the motion to dismiss the appeal on the ground that there is no case on appeal must be denied, for the reason that there may be error on the face of the record proper. But a motion to affirm the judgment below is appropriate procedure.
Where there is failure to have a case on appeal legally served and settled, decisions of this Court uniformly hold that that does not of itself require a dismissal of the appeal. The appellants are still entitled to present the case on the record proper. We cite a few of such decisions. See Wallace v. Salisbury, 147 N.C. 58, 60 S.E. 713; Roberts v. Greensboro-Fayetteville Bus Co., 198 N.C. 779, 153 S.E. 398; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Hall v. Robinson, 228 N.C. 44, 44 S.E.2d 345; State v. Bryant, 237 N.C. 437, 75 S.E.2d 107.
In the light of this rule of practice, an examination of the record proper on this appeal fails to disclose error therein. And it is not inappropriate to say, in passing, that an examination of the case on appeal shown in the record, but not served in time, discloses substantial competent evidence to support the finding of fact made by the judge as to the true dividing line between the lands of plaintiffs, and those of defendants, in keeping with well settled and applicable principles of law. See Wilson Lumber & Milling Co. v. Hutton & Bourbonnais Co., 159 N.C. 445, 74 S.E. 1056; Whitaker v. Cover, 140 N.C. 280, 52 S.E. 581; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440; Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603, and cases there cited.
And, a jury trial having been waived, and the parties agreeing that the judge should pass upon the issues, the findings of the judge, supported by evidence, are as conclusive as the verdict of a jury. See of late cases: Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; St. George v. Hanson, N.C., 78 S.E.2d 885; Lovett v. Stone, N.C., 79 S.E.2d 479; State Trust Co. v. M. & J. Finance Corp., 238 N.C. 478, 78 S.E.2d 327.
For reasons stated:
Motion to dismiss denied.
Motion to affirm allowed.
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210 Ga. 325 (1954)
80 S.E.2d 289
WILLIAMS
v.
SMITH.
18459.
Supreme Court of Georgia.
Submitted January 12, 1954.
Decided February 8, 1954.
*329 C. C. Crockett, for plaintiff in error.
Lester F. Watson, contra.
SUTTON, Justice.
The question for determination is whether the evidence for the plaintiff was sufficient to prevent a nonsuit. Therefore, the relevant evidence has been set out at length.
"A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code § 110-310. If the plaintiff fails to prove what he has alleged, or if he actually proves every fact charged, but on cross-examination or otherwise disproves his case by establishing beyond doubt the existence of other defensive facts which make it manifest that he ought not on the whole evidence to recover, a nonsuit should be granted. Evans v. Josephine Mills, 119 Ga. 448, 450 *330 (46 S.E. 674). "A motion to nonsuit presents for decision the single question whether or not the evidence introduced in behalf of the plaintiff, assuming it to be true, proves his case as laid." Reeves v. Jackson, 113 Ga. 182 (2) (38 S.E. 314); Clark v. Bandy, 196 Ga. 546 (27 S.E.2d 17). In passing on the question of whether or not the court rightly awarded the nonsuit, the evidence must be taken most strongly in favor of the plaintiff. National Land & Coal Co. v. Zugar, 171 Ga. 228 (2) (155 S.E. 7); Burton v. Hart, 206 Ga. 87, 90 (55 S.E.2d 594); Wright v. Roseman, 209 Ga. 176, 183 (71 S.E.2d 426); Jackson v. Thompson, 77 Ga. App. 367, 370 (48 S.E.2d 903), and citations.
The plaintiff's testimony on direct examination was amply sufficient to make out a prima facie case. While he answered, "by agreement, yes," when asked on cross-examination, "after erecting this fence, marking out that line, blazing those trees, by your conduct and acts, did you not recognize that as the dividing line between these two tracts," yet, the above answer was not inconsistent with the petitioner's testimony as a whole, to the effect that under their agreement the fence merely marked a temporary line for convenience until they could secure the services of a surveyor to measure out the 150 acres called for in the petitioner's deed, at which time the permanent boundary was to be established. Furthermore, the plaintiff testified that they asked the pulpwood cruiser about running the line, and he said he could not run a line that would stand up. There was no evidence that the pulpwood cruiser or any other person was requested to measure out the 150 acres until the survey that the petitioner relies on was made on May 19, 1952.
Under the evidence in the present case, it was error to grant a nonsuit.
Judgment reversed. All the Justices concur.
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649 So. 2d 272 (1994)
Dave SAMUELS, Appellant,
v.
STATE of Florida, Appellee.
No. 93-3024.
District Court of Appeal of Florida, Fifth District.
December 30, 1994.
Rehearing Denied January 31, 1995.
James B. Gibson, Public Defender, and Susan A. Fagan, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.
PER CURIAM.
In this direct criminal appeal, appellant raises two issues: whether it was error to *273 deny his motion to suppress evidence because the state failed to establish that his consent to search was given voluntarily and whether the "FDLE" and "drug and alcohol" costs were properly imposed. We affirm the conviction, but agree that the trial court's imposition of these costs was flawed.
Assessed costs whose statutory authority is not specifically identified on the sentencing form[1] should have a reference by statute number to permit appellate review. Otherwise, this court is left to guess at the authority. See Thomas v. State, 633 So. 2d 1122 (Fla. 5th DCA 1994); see also Bradshaw v. State, 638 So. 2d 1024, 1025 (Fla. 1st DCA 1994). We surmise that "FDLE" costs refers to costs authorized under section 939.01(1), Florida Statutes (1993), but this is not ascertainable on this record. Further, there appears to be no statutory authority for the imposition of drug and alcohol costs where a defendant is convicted of a felony. See § 939.017, Fla. Stat. (1993). Accordingly, that portion of the sentence assessing FDLE and drug and alcohol costs against the defendant is stricken. The state may, if appropriate, seek reimposition.
JUDGMENT AFFIRMED IN PART; COSTS VACATED; and REMANDED.
COBB, W. SHARP, and GRIFFIN, JJ., concur.
NOTES
[1] Fla.R.Crim.P. 3.986(c).
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273 S.C. 479 (1979)
257 S.E.2d 714
Lucius FELDER, Respondent,
v.
Mary P. JOHNSON, Appellant.
21021
Supreme Court of South Carolina.
August 2, 1979.
*480 J. Reese Daniel, Columbia, for appellant.
A.S. Bahnmuller and David W. Goldman, of Bryan, Bahnmuller, King, Goldman & McElveen, Sumter for respondent.
August 2, 1979.
LEWIS, Chief Justice.
Plaintiff (respondent) brought this action to recover damages sustained when the motorcycle he was operating collided with the automobile of defendant (appellant) at the intersection of two highways in Sumter County, where traffic *481 was controlled by automatic traffic signals. This appeal is from a verdict rendered for respondent in the amount of $50,000, after the trial judge directed a verdict in respondent's favor on the issue of liability. We affirm.
Appellant first contends that the trial judge erred in directing a verdict in respondent's favor on the issue of liability. It was undisputed that the accident occurred in daylight; and that at the time of the collision respondent was travelling on his motorcycle through the intersection under a green light and appellant entered the intersection in her automobile against a red light. The trial judge properly held that there were no facts which would relieve appellant of liability for the consequences of her negligent act in entering the intersection against the red light in violation of the statute law. The decision in Odom v. Steigerwald, 260 S.C. 422, 196 S.E. (2d) 635 involved similar facts and sustains the present ruling of the trial judge.
The next question involves the effect of the answer of the trial judge to a question from the jury with reference to insurance. In the course of its deliberations, the jury returned to the courtroom and inquired whether appellant's insurance company or appellant was being sued. The trial judge informed the jury that "the plaintiff is suing the defendant. That's all I can tell you." The jury then returned to their room and subsequently reached a verdict.
Appellant argues that the trial judge should have been more specific and should have told the jury that appellant and respondent were the only parties to the action. It is contended that the failure to give more specific instructions led to the implication that there was "an insurance company lurking in the shadows." We think the answer given by the trial judge adequately and properly answered the inquiry of the jury and we find no prejudice.
The final question involves objection to the argument made by respondent's counsel to the jury concerning the *482 amount of future damages to be awarded for respondent's permanent injuries. It is argued that respondent's attorney impermissibly suggested to the jury a per annum figure to apply in determining the amount to be awarded for future damages.
We held in Harper v. Bolton, 239 S.C. 541, 124 S.E. (2d) 54, that an attorney may not in argument to the jury give his own opinion as to the per diem value which the jury should award for damages which are unliquidated and indeterminate in character. We subsequently held, however, in Edwards v. Lawton, 244 S.C. 276, 136 S.E. (2d) 708, that it was not error for an attorney in argument to use for illustrative purposes a per diem formula for assessment of such damage, where it was made clear that the amount to be awarded was left to the judgment of the jury.
The specific argument here in question is as follows:
... Now that's worth something, folks. Now for me to tell you what that is worth, would perhaps be presumptuous on my part. I don't know what to put down as the amount of money that that should be. It's hard for me to say. It's hard for me to say how much money you should give him for the future pain and discomfort. It's hard for me to say how much you should give him because he won't be able to play ball or any of those other things that a man with two solid legs can do for the rest of his life that he will not be able to do. But it's worth something. You've got to put something down there for pain and suffering. Our medicals? $21,000.00 plus. Loss of wages to date and what it's going to take him to recover: $11,000.00. Loss of wages in the future: $88,000.00 $16,000.00 for just not having a leg and not being able to do the things that people can do who have two good legs for the rest of his life of 39 years, and. ...
The foregoing argument did not contain the vice condemned in Harper v. Bolton, supra, and no prejudice is shown for the language used in this case. Respondent's *483 leg was served from his body in the collision and his complaint sought recovery of the sum of $75,000. Respondent's counsel in argument suggested that the amount of the damages sustained was $120,000.00. The jury apparently rejected the questioned argument of counsel and assessed the damages at $50,000.00. We find no error.
Judgment is affirmed.
LITTLEJOHN, NESS, RHODES and GREGORY, JJ., concur.
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80 S.E.2d 260 (1954)
239 N.C. 510
ANDERSON et al.
v.
EDWARDS et al.
No. 95.
Supreme Court of North Carolina.
February 24, 1954.
*261 Weeks & Muse, Tarboro, for defendant-appellants.
Leggett & Taylor, Tarboro, for petitioner-appellee.
WINBORNE, Justice.
This is the determinative question: The testator having in Item One of his will devised and bequeathed his real and personal property to his wife and children "subject to and in accordance with the stipulations and conditions as set out in the further items of this my last will and testament", is the provision of Item Three postponing partition for ten years void as a restraint on alienation, and against public policy? Manifestly the trial court was of opinion that it is. However, this Court is constrained to hold that the provision is valid.
The annotators of decided cases in this and in other jurisdictions state that: "It seems to be well settled that a provision in a will which prohibits and postpones a partition of the estate is valid, and that, since a will is to be executed in accordance with the intent of the testator, no partition *262 will be granted where the will expressly or by necessary implication directs that the property shall be kept intact." Annotation 14 A.L.R. 1238. Citations follow from eighteen States, England and Canada, including the case of Blake v. Blake, 118, N.C. 575, 24 S.E. 424.
And in later annotation reported in 85 A.L.R. 1321, the author, after digesting cases from Illinois, Iowa, Kentucky, Nebraska and New York, and our own case of Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398, in respect to the general rule that "testamentary provisions prohibiting or postponing partition for a reasonable time or until the happening of a designated event are upheld as not involving a restraint on alienation or limitation repugnant to the fee", comes to say: "Therefore the general rule is that effect will be given to the intention of the testator as expressed in the will, and that no partition suit will lie before the date so fixed or the happening of the event named."
In the light of this general rule applied to case in hand, it seems clear that the testator having amassed a large farmland estate, which he had financed on amortization plan, was concerned about the preservation of it. And it is clear that he was of opinion that by pulling together for ten years his wife and children could liquidate the indebtedness or, at least, so reduce it as to be in position to carry on singly.
In Holden v. Rush, 1907, 119 App.Div. 716, 104 N.Y.S. 175, 176, the court, in holding that partition could not be granted during the minority of the youngest child, said: "I find no authority which holds that a testator may not in one and same sentence in his will use words which apparently make an absolute devise of real estate and restrict the devisees, his children, from disposing of the real estate until the youngest child reaches his majority. I know of no principle of law which forbids that the plain intent of the testator, as expressed in this will, should not be given effect."
This case is distinguishable in factual situation from cases relied upon by appellee. They are not controlling here.
For reasons stated, the judgment below is
Reversed.
ERVIN, J., dissents.
BARNHILL, C. J., took no part in the consideration or decision of this case.
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243 Ga. 858 (1979)
257 S.E.2d 278
BANK OF CUMMING
v.
MOSELEY et al.
34803.
Supreme Court of Georgia.
Argued May 14, 1979.
Decided June 27, 1979.
Robinson, Harben, Armstrong & Millikan, Emory F. Robinson, Frank W. Armstrong, for appellant.
Thomas C. Jones, Jr., for appellees.
HALL, Justice.
Harry and Ted Moseley sued appellant Bank of Cumming to force re-assignment to them of a third party note and security deed held by the bank as collateral for a loan to the brothers. When the bank failed to answer, the Moseleys obtained a default judgment. Within the same term of court, the trial judge set aside the default, but the bank still did not answer the complaint. Eleven months later, the bank attempted to foreclose on the third party note, alleging that Harry Moseley was in default on a subsequent loan secured by that note. The trial court temporarily enjoined the foreclosure on the ground that the original suit filed by the Moseleys was still pending in the trial court. The bank then filed its answer in the original suit, but the trial court, on motion of the Moseleys, struck the answer and entered a second default judgment against the bank. The bank appeals from this judgment. We affirm.
A trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his discretion. Ammons v. Bolick, 233 Ga. 324 (1) (210 SE2d 796) (1974). This inherent power of the trial court was not changed by passage of the Civil Practice Act. Martin v. General Motors Corp., 226 Ga. 860 (1) (178 SE2d 183) (1970).
In this case, the trial court denied the bank's equitable complaint to set aside the initial default judgment, its motion for new trial and its motion under Code Ann. § 81A-160 (d) to set aside the default. But the trial court nevertheless set the judgment aside using its inherent power because the term of court had not ended. The bank now contends that it did not default the second time because the trial court did not order it to file responsive pleadings. We disagree.
When a default judgment has been granted and is then set aside under Code Ann. § 81A-160, the case returns to the posture it occupied prior to the default judgment, and the defendant must file responsive *859 pleadings to avoid defaulting a second time. See Mathews v. Mathews, 121 Ga. App. 725 (175 SE2d 126) (1970). This is in no way changed when a default judgment is set aside not under Rule 60 but through the exercise of the trial court's discretion. In other words, although a trial court's discretionary power to act during the same term of court is derived from its inherent powers and not from the Civil Practice Act, the CPA continues to control the procedural aspects of the case. Otherwise, chaos would result since the courts of this state would be required to fashion from whole cloth a procedure separate from the CPA to be followed in those cases in which the trial court used its discretionary authority. This we refuse to do.
When the plaintiffs' default judgment was set aside, the complaint was left pending in the trial court. Eleven months later the bank for the first time attempted to answer. Code Ann. § 81A-155 (a) provides, "If in any case an answer has not been filed within the time required by this Title, such case shall automatically become in default . . ." Thus, the bank was in default when it attempted to answer. The procedure for opening the default is set out in Code Ann. § 81A-155(b). West Court Square v. Assayag, 131 Ga. App. 690 (206 SE2d 579) (1974); Coleman v. Dairyland Ins. Co., 130 Ga. App. 228 (202 SE2d 698) (1973). The bank did not follow this procedure. When the plaintiffs made a motion to strike the answer, the trial court was justified in doing so and in granting plaintiffs a second default judgment. See Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673 (177 SE2d 64) (1970).
The bank also contends that if it were required to file responsive pleadings to avoid a second default, either its motion to set aside the first default judgment, its motion for new trial or its equitable complaint to set aside the judgment should be treated as an answer to the original complaint. The "title" applied to pleadings is not binding on the court; we judge a pleading by its contents, not by its name. Frost v. Frost, 235 Ga. 672 (221 SE2d 567) (1974). But nothing filed by the bank can serve as an answer because nothing contains specific or general denials of the allegations found in the complaint. Code Ann. § 81A-108 (b); Whitby v. Maloy, 145 Ga. App. 785 (245 SE2d 5) (1978).
*860 We find that after the trial court set aside the first default judgment, the bank defaulted a second time through failure to file responsive pleadings. The trial court was justified in striking the answer the bank eventually filed and granting a second default judgment because the bank failed to comply with Code Ann. § 81A-155 (b).
Judgment affirmed. All the Justices concur, except Hill and Bowles, JJ., who concur in the judgment only.
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167 Cal.App.4th 12 (2008)
DAVID HERNANDEZ et al., Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al., Defendants and Respondents.
No. B203097.
Court of Appeals of California, Second District, Division Eight.
September 25, 2008.
*15 Eric Grant; Sterling E. Norris; Law Office of Anthony T. Caso and Anthony T. Caso for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, Valerie L. Flores and Harit U. Trivedi, Deputy City Attorneys, for Defendant and Respondent City of Los Angeles and the Los Angeles City Council.
Raymond G. Fortner, Jr., County Counsel, and Judy W. Whitehurst, Deputy County Counsel, for Defendant and Respondent County of Los Angeles.
Kaufman Downing, Stephen J. Kaufman and Steven J. Reyes for the League of Women Voters of Los Angeles and the Los Angeles Area Chamber of Commerce as Amici Curiae on behalf of Defendants and Respondents.
OPINION
FLIER, J.
Appellants, electors of the City of Los Angeles, asserted a postelection challenge to Measure R, a ballot measure approved by Los Angeles voters at the November 7, 2006 consolidated general election. The measure (1) amends the city charter to change the number of terms a city council member can serve from two 4-year terms to three 4-year terms; (2) amends the city charter to prohibit lobbyists from being appointed as city commissioners and to prohibit campaign contributions from lobbyists and lobbying firms to officials and candidates; and (3) makes several revisions to the city's ethics laws by ordinance.
Appellants filed a petition for writ of mandate in the superior court, seeking an order directing the County of Los Angeles (County), which administered the election, and the City of Los Angeles (City) to cease and *16 desist from any action to implement Measure R and to repeal any changes in the city charter or Los Angeles Municipal Code taken to implement the measure.[1] The superior court denied the petition finding that because Measure R was not an initiative, the single subject rule imposed by the California Constitution does not apply. Appellants appeal, asserting Measure R violates the California Constitution, article II, section 8, subdivision (d), the "single subject rule."[2] We affirm the judgment and denial of appellants' motion to vacate.
This is the third time an issue related to Measure R has been before this court. There were two preelection challenges to Measure R. In the first preelection case, this court issued a published opinion upholding the legality of the ballot title of Measure R. (Martinez v. Superior Court (2006) 142 Cal.App.4th 1245, 1248 [48 Cal.Rptr.3d 660] (Pasley).) In the second preelection case, Martinez v. Superior Court, No. B193531 (Donner), this court, in an order to show cause issued on September 20, 2006, denied preelection review and directed that the measure be included on the November 2006 ballot.[3]
FACTS
Measure R originated in a proposal conceived by the Los Angeles Area Chamber of Commerce (Chamber) and the League of Women Voters of Los Angeles (League). In July 2006, the Chamber and the League in a letter to the city council presented a comprehensive reform measure, entitled "City Government Responsibility, Lobbying and Ethics Reform Act." The Chamber and League asked the city council to place the measure on the November 7, 2006 Los Angeles City ballot. The stated purpose of the proposal was "to create greater efficiency, accountability and transparency within Los Angeles City government." The Chamber and League urged that "we need to create an *17 environment which encourages elected officials to focus on their current job, long as well as short term issues, and not on their next position."
The Chamber and League asked the city council to place their proposal on the November 2006 election ballot as a city-council-sponsored ballot measure.
The city council agreed to do so and adopted a motion directing the city attorney to draft an appropriate ordinance and resolutions to place the proposal on the November 2006 ballot. Pursuant to this directive, the city attorney prepared ordinances and associated resolutions to substantially reflect the language presented by the Chamber and League. In doing so, the city attorney revised the language of the proposal to conform to City standards and made other substantive revisions. In a report to the city council, the city attorney observed there was an alternative way to present the measure to the voters. He nevertheless approved as to form and legality the city council's election to place all of the provisions suggested in the Chamber and League proposal on the November 2006 ballot.
Los Angeles voters approved Measure R at the November 7, 2006 statewide general election, by a margin of 59.53 percent to 40.47 percent (375,433 "yes" votes to 255,242 "no" votes).
PROCEDURAL HISTORY
In December 2006, appellants brought the present challenge to Measure R as a petition for writ of mandate against the County and the City.
After briefing and hearing, the trial court concluded that Measure R violated the single subject rule, stating: "the ultimate purpose of the single subject requirement of the California Constitution is to prevent politicians and special interests from manipulating the initiative process by bundling together measures to force voters to accept all or none of them, when, if they were submitted to the voters separately, the voters would likely accept some and reject others. Such manipulation is precisely the effect of the bundling in this case. It is likely that many voters would vote one way on the anti-lobbying and ethics provisions of Measure R, and the opposite way on the term limits provisions, if they were given an opportunity to do [so]." The trial court, however, found the single subject rule did not apply to Measure R because it was not an initiative.
The court found that the city council did not propose an initiative when it voted to submit Measure R to the voters, and the single subject requirement imposed by the California Constitution upon initiative measures did not apply *18 to the measure. The court therefore denied appellants' petition for writ of mandate and entered a judgment in favor of respondents. The court later denied appellants' motion to vacate the judgment.
Appellants timely appeal from the judgment and order denying their motion to vacate the judgment.[4]
STANDARD OF REVIEW
This court's review of the trial court's legal determinations is de novo. (See, e.g., City of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1384 [38 Cal.Rptr.3d 450].) We determine whether substantial evidence supports the trial court's factual determinations. (Ibid.)
DISCUSSION
1. Presumption of Validity
At the outset, we address the City's argument that Measure R deserves a presumption of validity because of this court's prior ruling in Pasley, supra, 142 Cal.App.4th 1245 and because the voters "overwhelmingly" approved Measure R at the November 2006 election. Relying on Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1153-1155 [90 Cal.Rptr.2d 810, 988 P.2d 1089] (Jones), the City argues our Supreme Court has held that a court's refusal to grant preelection review in a single subject case means the challengers have not established a strong likelihood the measure is invalid. They further assert it is "`"`wholly unjustified'"'" to allow the voters to pass a measure only to confront the voters with a judicial decree that the voters' action was "`"`in vain.'"'" (Id. at pp. 1154-1155.) We disagree.
(1) Jones stated only that "preelection review might be appropriate upon a `clear showing of invalidity.'" (Jones, supra, 21 Cal.4th at p. 1154, quoting Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 [181 Cal.Rptr. 100, 641 P.2d 200] (Brosnahan I).) As the high court has explained, "a majority of the court in Brosnahan I was not persuaded that, in that instance, the challenged *19 initiative violated the single-subject rule" and thus had deferred ruling on the merits of a single subject challenge to the initiative at issue until after the election. (Jones, supra, at p. 1154.) Absent some clear showing of invalidity, the court further elucidated, "it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise . . . ." (Brosnahan I, supra, at p. 4.)
(2) The City overstates the implication of Jones's discussion to the case at hand. In Pasley, we examined only the issue whether the ballot title adopted by the city council for Measure R "complies with [the] election law." (Pasley, supra, 142 Cal.App.4th at pp. 1246-1247.) We held that the ballot title was neither false nor misleading and that it was not partial to one side. (Id. at p. 1248.) We did not reach the merits of whether the ballot measure violated the single subject rule or, indeed, whether that rule applied to the measure. An opinion is authority only for a proposition actually considered and decided. (In re Chavez (2003) 30 Cal.4th 643, 656 [134 Cal.Rptr.2d 54, 68 P.3d 347].)
The issue whether Measure R is subject to or violated the single subject rule was squarely before us in Donner. The Donner matter came before us after the superior court, on September 7, 2006, directed the issuance of a peremptory writ of mandate ordering the County registrar-recorder and the city clerk to remove Measure R from the November 2006 election ballot.
The City sought relief by filing a petition for writ of mandate with this court, and we issued an emergency order on September 8, 2006, directing the superior court to show cause why it should not be compelled to (1) vacate its order and judgment in Donner and (2) issue a new and different order denying the petition in that matter. We also issued a temporary stay order, thereby allowing Measure R to go before the Los Angeles voters on the November 7, 2006 ballot. We indicated that "[b]ecause the petition [before this court] raises significant legal issues of great public importance, we intend to decide the petition on the merits."
Subsequently, on September 29, 2006, after allowing further briefing, we issued an order to the effect that we had concluded preelection review was inappropriate, on the basis of the briefs submitted and our review of applicable law. We scheduled oral argument on the City's petition for writ of mandate for our first regularly scheduled calendar date after the election. *20 Before our hearing and following the voters' passage of Measure R on November 7, 2006, the trial court vacated the judgment in Donner at the petitioner's request and with our concurrence. At the City's request, we discharged our existing order to show cause and dismissed as moot the petition for writ of mandate filed on September 7, 2006.
Our declining to conduct a preelection substantive review of Measure R was a preliminary determination there was no "`clear showing of invalidity'" (Jones, supra, 21 Cal.4th at p. 1154), no more and no less. "The general rule favoring postelection review contemplates that no serious consequences will result if consideration of the validity of a measure is delayed until after an election. Under those circumstances, the normal arguments in favor of the `passive virtues' suggest that a court not adjudicate an issue until it is clearly required to do so. If the measure passes, there will be ample time to rule on its validity. If it fails, judicial action will not be required." (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 666 [194 Cal.Rptr. 781, 669 P.2d 17].)
Lacking a clear showing of invalidity, we concluded a substantive review should be deferred until after Measure R was placed before the electorate. In so deciding, we determined the court's interest in a careful and full consideration of the issues took precedence over any potential voter confusion that might result from a postelection judicial decree invalidating the ballot measure.
Because Donner was dismissed postelection, however, this court did not have occasion to substantively address or determine whether Measure R is subject to or violated California Constitution, article II, section 8, subdivision (d). We are not foreclosed from addressing the issue by the prior proceedings. (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1289-1290 [265 Cal.Rptr. 162, 783 P.2d 749]; People v. Scott (2000) 85 Cal.App.4th 905, 919 [102 Cal.Rptr.2d 622].) We do so now and find Measure R is not subject to the single subject rule.
2. Validity of Measure R
Appellants claim Measure R is subject to, and violates, the single subject rule providing that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Cal. Const., art. II, § 8, subd. (d), italics added.)
Appellants argue that the California Supreme Court "has equated the `restraint upon the Legislature's power to submit constitutional amendments to the voters' with the restraint `imposed upon the people through the initiative process.'" (See Californians for an Open Primary v. McPherson *21 (2006) 38 Cal.4th 735, 763 [43 Cal.Rptr.3d 315, 134 P.3d 299].) They admit that the single subject rule for initiatives set forth in article II, section 8, subdivision (d) of the California Constitution does not expressly govern city-council-supported ballot measures submitted to local voters but suggest such a requirement should be implied.
(3) Under the California Constitution there are only two methods for proposing an amendment to a city charter: (1) an initiative qualified for the ballot through signed voter petitions; or (2) a ballot measure sponsored by the governing body of the city. California Constitution, article XI, section 3, subdivision (b) provides: "The governing body or charter commission of a county or city may propose a charter or revision. Amendment or repeal may be proposed by initiative or by the governing body." (Italics added.)
Voter initiatives to amend the city charter must conform to a wide range of stringent procedural requirements before they can be placed on the ballot, including, among other things, rules regarding the form, filing and circulation of petitions, the publication of notices, the collection of 15 percent of the votes cast at the last mayoral election, and examination and certification of such signatures by the city clerk. (See Elec. Code, §§ 9255-9269; L.A. City Charter, art. IV, §§ 450-455.) Measure R did not go through this process since it was a city-council-sponsored ballot measure subject to an alternative procedure. (See Citizens for Responsible Government v. City of Albany (1997) 56 Cal.App.4th 1199, 1229-1230 [66 Cal.Rptr.2d 102] [distinguishing initiatives from city-council-sponsored ballot measures].)
(4) In construing a state constitutional provision, our paramount consideration is to determine the intent of those who enacted the provision. (Leone v. Medical Board (2000) 22 Cal.4th 660, 665 [94 Cal.Rptr.2d 61, 995 P.2d 191].) "[T]he role of the court is to apply a statute or constitutional provision according to its terms, not to read into it exceptions or qualifications that are not supported by the language of the provision . . . ." (Rossi v. Brown (1995) 9 Cal.4th 688, 694 [38 Cal.Rptr.2d 363, 889 P.2d 557] (Rossi).) "Where the language is clear, it should be followed." (Id. at p. 695.) Moreover, all enactments are to be construed whenever possible in a manner that preserves their validity. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281].)
(5) As we have noted, the California Constitution, article II, section 8, subdivision (d) provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Italics added.) The plain words of article II, section 8, subdivision (d) indicate the single subject rule applies to "initiative measures." Section 8, subdivision (a) defines an "initiative" as "the power of the electors to propose statutes and *22 amendments to the Constitution and to adopt or reject them." (Italics added.) The common, ordinary definition of "initiative" is "a procedure enabling a specified number of voters by petition to propose a law and secure its submission to the electorate or to the legislature for approval." (Merriam-Webster's Collegiate Dict. (10th ed. 1995) p. 602.)
The Constitution provides that the only manner by which electors may propose initiatives is by filing "a petition that sets forth the text of the proposed statute or amendment . . . and is certified to have been signed by electors" equal to a certain percentage of voters. (Cal. Const., art. II, § 8, subd. (b), italics added.) The Los Angeles City Charter correspondingly provides that an initiative may qualify for the ballot only through the filing of petitions signed by a certain percentage of voters. (L.A. City Charter, art. IV, §§ 450-451 [to place initiative on ballot, proponents must file a petition with city clerk signed by the appropriate number of voters].)[5]
Our Supreme Court has stated that "the initiative represents `"one of the most precious rights of our democratic process"' [citation], and . . . it is the duty of the courts `"to jealously guard this right of the people."' [Citation.] The single-subject rule of article II, section 8(d), was added to the California Constitution by the voters for the specific purpose of protecting the integrity of this `most precious right[].'" (Jones, supra, 21 Cal.4th at p. 1168.) The people's reserved power of initiative is fundamentally distinguishable from the power of the legislative body. (Rossi, supra, 9 Cal.4th at p. 715.) Section 452(a) of the Los Angeles City Charter requires that initiative measures be placed on the ballot "without alteration." In this instance, the city council made several alterations to the proposal submitted by the Chamber and League before it was placed on the ballot, a further indication that Measure R was not, and was not treated as, a voter initiative. (See L.A. City Charter, § 451(f).)
(6) The California Constitution contains specific provisions regulating charter amendments sponsored by the governing body of a charter county or *23 city in article XI. The provisions do not contain any single subject requirement on charter amendments sponsored by such governing bodies. Specifically, as noted, article XI, section 3, authorizes the governing body of a charter city to sponsor a charter amendment, and those provisions contain no single subject requirement. (See Cal. Const., art. XI, § 3, subd. (b).) Nor does article XI, section 7.5, which sets forth certain constraints on city-council-sponsored charter amendments, include any single subject requirement. (See Cal. Const., art. XI, § 7.5.) By not encumbering governing bodies of charter cities with a single subject requirement, the framers enabled charter cities to sponsor measures aimed at accomplishing comprehensive reform at the ballot box. Charter cities are also able to group multiple technical amendments into one ballot measure. Since every ballot question carries significant administrative costs, substantial efficiencies can be achieved by a city council's authority to group technical changes of disparate but reasonably related provisions and statutory amendments into one measure to achieve a common theme or purpose.
Appellants point to nowhere in the California Constitution, or elsewhere in state law, expressly imposing a single subject restriction on ballot measures sponsored by the governing body of a charter city such as Los Angeles.
(7) The Constitution must be interpreted by the language in which it is written, since "`courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.'" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 799 [268 Cal.Rptr. 753, 789 P.2d 934].) We conclude the single subject rule does not apply to a city-council-sponsored ballot measure such as Measure R.
Appellants misplace reliance on Pala Band of Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565 [63 Cal.Rptr.2d 148] (Pala Band). Pala Band applied a different provision, California Constitution, article II, section 12, to a county initiative and held the initiative violated the constitutional provision by designating a private entity to perform any function or to have any power or duty. (Pala Band, at p. 579.) Neither is Shea Homes Limited Partnership v. County of Alameda helpful in this respect to appellants, because that case also involved an initiative and, in any event, the court found the initiative violated no single subject rule. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1255-1256 [2 Cal.Rptr.3d 739].)
The trial court therefore did not err in entering judgment for respondents or in denying appellants' motion to vacate the judgment.[6]
*24 DISPOSITION
The judgment and order denying the motion to vacate the judgment are affirmed. Respondents are to recover costs on appeal.
Cooper, P. J., and Bigelow, J., concurred.
NOTES
[1] Respondent Los Angeles City Council (city council) appeared as the real party in interest in the court below. Because they are united in interest, we sometimes refer to the City and the city council jointly as the "City."
Respondent County has filed a brief stating it took no position as to appellants' petition in the superior court. The County's only role with respect to Measure R was to conduct the election, and to calculate and certify the results of the election. Its involvement had already ended when appellants brought the petition for writ of mandate at issue. Therefore, the County indicates it is taking no position on the merits of this appeal.
[2] The single subject rule provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Cal. Const., art. II, § 8, subd. (d).)
[3] As discussed post, once the measure was passed by the voters, the superior court vacated the underlying judgment at Donner's request. We discharged the order to show cause and dismissed the pending petition for writ of mandate as moot before the date of the scheduled hearing.
[4] On appeal, the City and amici curiae Chamber and League have asked this court to take judicial notice of several documents not presented to the trial court or not in existence at the time of trial proceedings. We deferred ruling on these requests and now deny them as such documents are not relevant or necessary to the issues decided on this appeal.
[5] Section 450(a) of article IV of the Los Angeles City Charter provides, "Any proposed ordinance which the Council itself might adopt may be submitted to the Council by a petition filed with the City Clerk, requesting that the ordinance be adopted by the Council or be submitted to a vote of the electors of the City. Any proposed ordinance amending or repealing an ordinance previously adopted by a vote of the electors may be submitted to the Council by a petition filed with the City Clerk requesting that the ordinance be submitted to a vote of the electors of the City." Section 450(b) states, "Petitions to amend the Charter shall be governed by provisions of the California Constitution and applicable provisions of state law concerning Charter amendments." Section 451 of article IV of the Los Angeles City Charter prescribes rules and procedures for submitting a proposed ordinance to the city council by initiative petitions. Of particular interest, section 451(f) expressly provides that "[n]o amendments, changes, alterations or corrections of any kind, clerical or otherwise, shall be permitted to be made in any petition after it has been filed with and approved by the City Clerk." (Italics added.)
[6] In light of our holding, we do not reach the issue whether Measure R does or does not violate the single subject rule.
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281 Pa. Superior Ct. 226 (1980)
421 A.2d 1231
COMMONWEALTH of Pennsylvania
v.
Mark A. NAY, Appellant.
Superior Court of Pennsylvania.
Argued June 19, 1979.
Filed September 19, 1980.
*229 Denis James Lawler, Philadelphia, for appellant.
Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before HESTER, HOFFMAN and CATANIA,[*] JJ.
PER CURIAM:
Appellant Mark A. Nay brings this appeal from a pre-trial order denying his motion to quash an Information on the grounds of double jeopardy. Specifically, we are asked, once again, to construe this State's Homicide by Vehicle Statute[1] and to determine the degree of culpability embraced by its provisions.
On April 3, 1978 appellant was involved in a two-car accident on Knights Road in Philadelphia in which his passenger Anthony Bronzini was killed. Testimony at the Municipal Court trial established that at approximately 7:30 p.m. on the day of the incident, one Ronald Kohl drove his car to Our Lady of Calvary Church, located on the southbound side of the 1100 block of Knights Road, in order to pick up his son. Mr. Kohl pulled his vehicle off to the right (southbound) portion of the road to wait for his son to come out of the church. When the boy got into the car, Mr. Kohl prepared to pull back onto the roadway, heading south. He activated his left turn signal, checked for oncoming traffic coming from behind, and slowly drove onto the road. Suddenly, he was struck by a car driven by appellant travelling at a high rate of speed in the southbound passing lane. Appellant's car continued to fishtail down the road until it struck a utility pole and burst into flames. Appellant's *230 passenger Bronzini was killed instantly while appellant sustained injuries to his leg and head. He was charged with involuntary manslaughter, recklessly endangering another person, and homicide by vehicle[2] in the Municipal Court of Philadelphia County. Following trial, the judge on July 25, 1978 acquitted appellant of involuntary manslaughter, but convicted him of REAP and homicide by vehicle. Appellant filed his notice of appeal for a trial de novo in Common Pleas Court[3] and the District Attorney thereafter returned two Informations charging him with REAP and homicide by vehicle. Appellant then filed his motion to quash alleging: 1) that Sec. 3732 is unconstitutional because it imposes strict criminal liability without a requirement of mens rea; and 2) if the statute does require a degree of culpability, then the prior acquittal of involuntary manslaughter is a bar to a trial under § 3732 and REAP by virtue of collateral estoppel. The lower court, in two opinions, granted the motion as to REAP, finding the issue of recklessness now foreclosed, but denied the motion as to homicide by vehicle. Appellant then pursued this appeal, advancing the same arguments.[4]
Appellant's challenge to the constitutionality of § 3732 must be rejected in view of the Supreme Court's recent opinions upholding the statute. In Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980), the court found the section not void for vagueness and in Commonwealth v. *231 Field, 490 Pa. 519, 417 A.2d 160 (1980) the court held that § 3732 does not impose criminal liability without fault, that is, it requires a showing of culpable conduct, and is therefore not unconstitutional. Compare, Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959).
The Court in Field did not have occasion to specifically determine the level of culpability embraced in § 3732 in order for criminal liability to attach thereunder.[5] However, in its final footnote, the Court opined:
In our view it was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504 [involuntary manslaughter]; Commonwealth v. Busler, supra note 3 [445 Pa. 359, 284 A.2d 783 (1971)]; Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968).
The Court thus echoed the clear import of President Judge Cercone's lead Opinion of this Court in Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980), alloc. den. 6/2/80, wherein it was stated: "[W]e . . . hold that the legislature intended to select culpable negligence as defined in the Crimes Code, 18 Pa.C.S.A. § 302(b)(4) (1973) as its touchstone for punishment," under § 3732. At 276 Pa.Super. 282, 419 A.2d 457.[6] In explaining his rationale, Judge Cercone compared § 3732 to the involuntary manslaughter provision of the Crimes Code, 18 Pa.C.S.A. § 2504, and found the former is intended to embrace a lesser degree of culpability (i.e., negligence) not covered by § 2504:
*232 It is true that under the present involuntary manslaughter statute a negligent operator completely escapes any criminal punishment unless the violation which precipitated death was perpetrated "in a reckless or grossly negligent manner." Crimes Code, 18 Pa.C.S. § 2504 (1973). We suggest that the legislature intended to fill this void not by punishing every death causing violation, but rather only intended to reach those violations in which there has been a "gross deviation" from the required standard of care. See Crimes Code, 18 Pa.C.S. § 302(b)(4) (1973). In passing this statute, we do not discern that the legislature abandoned its heretofore sensitive approach to the law of homicide generally. We read the subject provision as merely supplementing the already existing law as relates to deaths caused by Motor Vehicle Code violations. Thus, this provision being within this general conceptual framework, it continues to recognize that Motor Vehicle Code violations may involve differing species of culpability. For example, it is more aggravating to cause a death through an intentional violation rather than reckless, and worse to bring it through reckless violation than negligent violation. In the past, Pennsylvania law punished the former two, it did not punish the latter. The latter until now has been an innocent homicide. E.g., Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783, 784 (1971); Commonwealth v. Trainor, 252 Pa.Super. 332, 381 A.2d 944 (1972). Accordingly . . . there was a need for a new offense governing deaths resulting from negligent violations of the rules of the road. This is that measure and we would so hold.
At 276 Pa.Super. 282, 419 A.2d 457; footnotes omitted.
Thus, by the Supreme Court's suggestion that § 3732 "expanded the scope of criminal liability" beyond that heretofore covered by § 2504, we conclude, as did President Judge Cercone, that § 3732 extends its reach to culpably negligent conduct of an actor causing death.
*233 Having determined the proper level of mens rea contemplated by § 3732, it remains for us to decide whether appellant's acquittal of involuntary manslaughter in Municipal Court is to operate as a bar to his trial de novo for homicide by vehicle. If appellant is correct that a second trial is now precluded, then it must be found that the "acquittal . . . required a determination inconsistent with a fact which must be established for conviction of the second offense." Crimes Code, 18 Pa.C.S.A. § 110(2). "[O]nce a former prosecution necessarily establishes an ultimate fact in favor of a defendant, then a subsequent prosecution depending upon a contrary finding must be barred." Commonwealth v. Klinger, 264 Pa.Super. 21, 25, 398 A.2d 1036, 1038 (1979); cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978).
By acquitting appellant of involuntary manslaughter, the Municipal Court necessarily found that appellant did not cause the death of the victim in a "reckless or grossly negligent manner," 18 Pa.C.S.A § 2504; Commonwealth v. Trainor, 252 Pa.Super. 332, 381 A.2d 944 (1977), and that appellant evidenced no "conscious disregard" for human life or indifference to consequences. 18 Pa.C.S.A. § 302(b)(3); Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Agnew, 263 Pa.Super. 424, 398 A.2d 209 (1979). Such a determination, however, did not necessarily foreclose the possibility that appellant may have negligently caused the death. The Crimes Code provides:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
*234 18 Pa.C.S.A. § 302(b)(4). The Model Penal Code Comments to this section distinguish negligence from acting "[intentionally], knowingly or recklessly in that [negligence] does not involve a state of awareness. It is the case where the actor creates inadvertently a risk of which he ought to be aware, considering its nature and degree, the nature and purpose of his conduct and the care that would be exercised by a reasonable person in his situation." MPC Comments, T.D. No. 4; Toll, Pa.Crimes Code Annotated, p. 66 (1974). Thus, while the recklessness of § 2704 involves "conscious risk creation", the negligence of § 3732 embraces no such element and is in fact divorced from the states of awareness of intent, knowledge, and recklessness.
The Crimes Code further makes clear that negligence is the lowest, requires the "least level of proof", of the four kinds of culpability. Cf. Commonwealth v. Carter, 274 Pa. Super. 538, 418 A.2d 537, (1980); 18 Pa.C.S.A. § 302. If, then, a criminal statute provides that negligence suffices for liability, then proof of intent, knowledge, or recklessness are sufficient under that statute a fortiori. § 302(e). It follows that if a lesser grade of culpability is negatived by the fact finder, then all greater levels are likewise foreclosed. The converse, however, is clearly not true. The absence of knowledge, for example, in an actor's conduct, will not always preclude a finding of recklessness or negligence, nor will the absence of recklessness necessarily preclude the presence of negligence. In short, where a lesser degree of culpability is required by a particular criminal statute, then a determination by the fact finder that a more serious grade is absent from the actor's conduct does not necessarily foreclose the possibility that a lesser grade is nonetheless present.
Since, then, the elements of the two levels of culpability are distinct, and the absence of the greater (recklessness) does not necessarily bar a finding of the lesser (negligence), we conclude that the acquittal of involuntary manslaughter does not require a determination inconsistent with a fact which must be established in the prosecution for homicide by vehicle.
*235 The order of the court below refusing to quash the Information is accordingly affirmed and the case is remanded for trial.
HOFFMAN, J., files a concurring statement.
HOFFMAN, Judge, concurring:
I join the Court's opinion and wish to add that although we are bound by our Supreme Court's decision in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), it is hoped that our Supreme Court will reconsider the issues raised in that case and clarify this difficult area of the law.
NOTES
[*] President Judge FRANCIS J. CATANIA, of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.
[1] Act of June 17, 1976, P.L. 162, No. 81, 75 Pa.C.S.A. § 3732 provides:
Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
[2] Crimes Code, 18 Pa.C.S.A. § 2504, 2705, and Vehicle Code, 75 Pa.C.S.A. § 3732, respectively.
[3] Pa.R.Crim.P. 6006; Judicial Code, 42 Pa.C.S.A. § 1123.
[4] Although a pre-trial order denying a motion to quash on the grounds of double jeopardy is immediately appealable by a defendant, Commonwealth v. Bronson, 482 Pa. 207, 393 A.2d 453 (1978); Commonwealth v. Klinger, 264 Pa.Super. 21, 398 A.2d 1036 (1978), the Commonwealth has requested us to quash this appeal contending that appellant is merely attempting a disguised attack upon the constitutionality of § 3732 and that a bona fide double jeopardy issue is not presented. We find we must deny the Commonwealth's motion. Since we decide that § 3732 does contain an element of scienter, we must also determine whether the acquittal of involuntary manslaughter negatives any element of scienter in § 3732. Thus, a question of collateral estoppel is presented, as more fully appears in our opinion.
[5] Generally, "a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense." Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 (Crimes Code, 18 Pa.C.S.A. § 302(a)).
[6] Judge Cercone's Opinion was joined only by Judge Cavanaugh. Judges Spaeth and Hoffman, in a separate opinion, argued that § 3732 creates strict criminal liability and, because of the heavy penalties imposed and the moral stigma attendant to a conviction therefore, found that the statute violates due process. The dissenting judges (Wieand, J., joined by Price and Hester, JJ.) contended that the statute imposes strict liability, without regard to intent, but is nonetheless constitutionally valid.
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279 Pa. Superior Ct. 442 (1980)
421 A.2d 281
PITTSBURGH NATIONAL BANK, Trustee under the Wills of William R. Marshall, and Lloyd N. Tatem, Assignee of Garrettsville Lumber Company,
v.
ALLISON ENGINEERING COMPANY, A Partnership, Appellant.
Superior Court of Pennsylvania.
Argued November 14, 1979.
Filed July 11, 1980.
*443 Zeno Fritz, Pittsburgh, for appellant.
Michael W. Balfe, Pittsburgh, for appellees.
Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
*444 VAN der VOORT, Judge:
The issue in this case is the correct interpretation of two coal leases, each of which provided for a minimum royalty of $50.00 a month prior to the commencement of mining operations, payable quarterly in advance, and thereafter a tonnage royalty of twenty cents a ton for coal mined and removed from the premises.
The leases were entered into February 26, 1949 between Garrettsville Lumber Company, a partnership composed of William R. Marshall and Lloyd N. Tatem as lessors and Allison Engineering Company, the appellant herein, as lessee. Mr. Tatem died September 29, 1950 and Mr. Marshall on June 14, 1966. Pittsburgh National Bank, the appellee herein, is a trustee under the Wills of both men, and instituted this action in that capacity.
The royalty provisions of the leases were identical and read as follows:
"2. Lessee covenants and agrees to pay the Lessor the sum of $.20 per ton for 2,000 pounds for all mineable, merchantable and marketable coal mined and removed from said premises . . .".
"3. Lessee covenants and agrees to commence mining operations upon said premises within ________ from the effective date of this lease and in event of failure so to commence mining operations agrees to pay Lessor as a minimum royalty the sum or price of $50.00 per month, payable quarterly in advance."
The leases were prepared on identical printed forms, with typewritten provisions filled in. No time period was inserted in the blank space in Paragraph 3. There was no elaboration of, or reference to, either royalty paragraph elsewhere in the lease, and no explanation or definition of the intended nature of the minimum royalty. There was no reference to a right of recoupment of the minimum royalty against later tonnage royalties.
The appellant did not begin mining operations under the leases until 1973, but made minimum royalty payments *445 totalling $29,100 between 1949 and 1973. In making the subsequent tonnage royalty payments, the appellant took the position that the earlier minimum royalty payments had been an advance payment against tonnage royalties to be recouped when the coal was later mined and removed. Consequently, it deducted the tonnage royalties of twenty cents a ton from the earlier minimum royalty payments, and only after it had recouped its aggregate minimum royalty payments of $29,100 did it pay the tonnage royalties called for by the leases. The appellee disputed this recoupment, contending that the earlier minimum royalties were in the nature of a penalty or rent for the period of delay in mining the coal and, consequently, not to be treated as an advance payment on the tonnage royalties. Failing to resolve the dispute by negotiation, the appellee brought suit in assumpsit to recover the $29,100 that had been withheld by the appellant by way of recoupment.
Before trial, the appellee moved for Summary Judgment, which was opposed by the appellant on the contention that it should be allowed to introduce checks and correspondence with the appellee and its predecessors in interest for the purpose of showing the intent of the parties. The Court, speaking through Judge J. Warren Watson, denied the Motion for Summary Judgment, stating that the contract language was capable of either interpretation, and concluding that there should be a trial "to ascertain the intent of the contracting parties" and "to determine the custom and usage of the coal mining industry."
In December 1978, the case was tried before Judge Joseph A. Del Sole, sitting without a jury. The appellee offered the testimony of one of its officers that it had consistently treated the minimum royalty payments received by it as a penalty for the period that coal was not mined, and consequently, they were treated as income on its accounts. It also introduced evidence that by long and well-established Pennsylvania usage and custom, minimum royalties in a coal lease payable prior to mining are considered to be a liquidated rent or a penalty for failure to mine coal, and are not to *446 be credited against subsequent tonnage royalties unless the lease specifically so provides.
The appellant offered evidence that in making its quarter-yearly minimum royalty payments, it had consistently labeled them as "advance royalties" on its checks, and that neither the appellee nor its predecessors in interest had contested the characterization until the appellant sought to recoup such payments against the later tonnage royalties. The appellant likewise offered evidence that it had used the term "advance royalties" in some earlier correspondence with the original lessors, and that the lessors had used the same terminology in responding. However, there is nothing in appellant's testimony to indicate that the parties had ever addressed themselves to the question of whether there was a distinction intended between the "minimum royalty" of the leases and an "advance royalty" as it was referred to on the checks and in the correspondence, or whether the royalty under either name could be recouped against the later tonnage payments for coal removed.
In January 1979, the court entered a verdict for the appellee in the amount claimed, with interest. The court en banc dismissed appellant's Exceptions on May 7, 1979, and entered judgment for the appellee in the amount of $37,155.11. An appeal followed. We affirm the ruling for the reasons hereinafter stated.
It is appellant's initial contention that the appellee should not have been permitted to introduce evidence as to the meaning of the leases, because their terms were clear and unambiguous. This is a reversal of appellant's original position in successfully opposing appellee's Motion for Summary Judgment so that it could introduce evidence bearing on the intent of the parties. It is likewise inconsistent with the appellant's introduction of evidence to show that it had characterized minimum royalty payments as advance royalties without objection from appellant. If it was appropriate for appellant to offer testimony as to the meaning of the leases, it was equally appropriate for the appellee.
*447 Appellant's testimony consisted of its unilateral characterization of the minimum royalty payments as "advance royalty" payments on checks and in some correspondence, and the appellee's apparent acquiescence in the use of that language. However, appellant's testimony fell short of establishing what distinction, if any, it had intended to convey by the use of this language. We find no more basis for concluding that an "advance royalty" implies a right of recoupment than does a "minimum royalty." It could imply a royalty in advance of mining operations quite as well as an advance payment on tonnage royalties. In any event, it was not the contract language, and appellant could not make it so by its unilateral substitution of terms. Appellant does not claim that it ever raised the issue of recoupment with the appellee until the parties were confronted with the correct computation of tonnage royalties.
The testimony of appellee's officer that the bank treated minimum royalty payments as income in the nature of a penalty for failure to mine was not offered as expert testimony but simply as a statement of how the appellee kept its records. This was by way of a refutation of appellant's contention that the appellee had conceded the right of recoupment by accepting checks identified as payment for advance royalties.
The appellee offered expert testimony that it was the long-established custom and usage of the Pennsylvania coal industry to treat a minimum royalty as a penalty or liquidated rent which could not be recouped against later tonnage royalties unless expressly so provided in the lease. This position is corroborated by many Pennsylvania decisions over a long period of years, well reviewed in Greenough v. Colonial Colliery Company, 132 Pa.Super. 270, 1 A.2d 174 (1938) and Muir v. Thompson Coal Company, Inc., 209 Pa.Super. 432, 434-35, 229 A.2d 480 (1967).
Evidence of an industry custom or usage which is notorious, well-established and reasonable is always a relevant consideration in determining the intent of the contracting parties. Fisher v. Congregation of B'Nai Yitzhok, 177 *448 Pa.Super. 359, 110 A.2d 881 (1955); Lancaster Transportation Co. v. New York & New Brunswick Auto Express Co., 187 Pa.Super. 621, 146 A.2d 150 (1958).
Coal leases have been a common commodity in Pennsylvania for well over a century; and the treatment of a minimum royalty as a penalty or rent, not recoupable against tonnage royalties unless so provided in the lease, has become so well-established and so universally accepted that it has become a rule of law. In Greenough, 132 Pa.Super. at 275, 1 A.2d 174, this court reviewed a long line of Supreme Court decisions and concluded:
Minimum royalty payments in coal leases have been interpreted by our Supreme Court as being in the nature of a penalty or a liquidated rental for property, whether or not the coal is mined, and they may not be applied to payment for the coal remaining in place unless expressly so provided.
The appellant was in the coal mining business when it leased the appellee's property in 1949, and it is entirely reasonable to assume that it was aware that the law was well-established that minimum royalties could not be recouped against tonnage royalties unless such a right was set out in the lease.
In Muir, 209 Pa.Super. at 434-35, 229 A.2d 480, this court again dealt with this issue of recoupment. The facts in Muir, supra, are strikingly similar to the case at bar. The Muir lease provided for royalties of twenty cents a ton for coal mined and removed. It also provided that coal should be removed in such quantities as to sustain royalties of at least $25.00 a month. Failing to mine this tonnage, that sum was to be paid as a minimum royalty. The lease contained no agreement for recoupment of minimum royalties against tonnage royalties. No mining took place between 1949 and 1963, during which time minimum royalties were paid. When mining royalties became due, the lessee claimed a right of recoupment for the earlier minimum royalties paid. This claim was denied on reasoning equally applicable to the case before us. The Court said:
*449 The only issue involved in this appeal is whether, where a coal lease grants the right to remove the minerals to exhaustion and provides a minimum monthly royalty with no mention in the lease of a right to recoupment, is the lessee permitted to offset minimum royalties already paid when due and when no mineral was mined, against royalties due for coal mined in later months in excess of the minimum. As the court below stated: "Thus custom and usage would seem to favor the lessee who took the pain and effort to definitively set forth his right of recoupment. Generally minimum royalty provisions are based on the proposition that the coal was in existence and can be profitably removed through proper efforts made. Therefore, they serve as incentives for compliance with the duty of performing adequately and promptly." When it is the intention of the parties, the right of recoupment of minimum royalties must be inserted in the contract. Leh. v. C. Co. v. Coxe Bros. & Co., Inc., 327 Pa. 23, 192 A. 658 (1937) . . . .
Minimum royalties amount to a liquidated rent or penalty for the lessee's failure to mine the minimum tonnage. Minimum royalty payments in coal leases have been interpreted by our Supreme Court as being in the nature of a penalty or a liquidated rental for property, whether or not the coal is mined, and they may not be applied to payment for the coal remaining in place unless expressly so provided.
We agree with the court below that in this case the lessee may not offset minimum royalty payments against fixed royalties due for coal subsequently mined where no right of recoupment is set forth in the lease. 209 Pa.Super. at 434-35, 229 A.2d 480.
It is a fair reading of Greenough and Muir to say that the usage and custom in this Commonwealth of treating a minimum royalty as a penalty or rent, not to be recouped against later tonnage royalties unless expressly provided in the lease, has become so universally accepted as to become a rule of law. Consequently, it would have been *450 permissible for the Court below to have decided this case on the appellee's Motion for Summary Judgment. However, no error was committed in taking evidence on the issue of intent and usage, for it simply corroborated the well-established understanding.
On June 5, 1979, twenty-nine days after the Court en banc had entered judgment for the appellee, the appellant petitioned the Court below to vacate the judgment and grant a new trial because a political committee advocating the reelection of Judge Del Sole had made a $20,000 loan from the Commercial Department of Pittsburgh National Bank on April 20, 1979. The loan was made in an arms-length transaction at the then-prevailing rate of interest. Judge Del Sole, his wife, and others were guarantors of the note. The court, acting by Judge Martin Wekselman, after taking the testimony of Judge Del Sole, dismissed the petition.
As a matter of hindsight, it would have been prudent for the committee to have made its loan elsewhere. But we must say in fairness to Judge Del Sole that the record discloses not the remotest relationship between the loan and this litigation. The loan was made through the bank's Commercial Department which is operated quite separately from its Trust Department. The loan was made at the going rate of interest, and the bank required individual guarantors for the committee. Furthermore, the Trust Department is only the nominal litigant in this case, the actual beneficiaries being the income recipients of the trust.
It would have been most unfair to the appellee to vacate the judgment and order a new trial because of this collateral and unrelated act of the campaign committee. On the record before us, this case could have been disposed of on a Motion for Summary Judgment, for no Pennsylvania court would permit recoupment of the minimum royalties in the absence of contractual language authorizing it. As the leases are written, a retrial before another judge could only result in another verdict for the appellee.
Affirmed.
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279 Pa. Superior Ct. 350 (1980)
421 A.2d 234
COMMONWEALTH of Pennsylvania
v.
David J. MALLON, Appellant.
Superior Court of Pennsylvania.
Argued September 11, 1979.
Filed July 3, 1980.
*353 Arthur J. King, Assistant Public Defender, Norristown, for appellant.
John J. Burfete, Jr., Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.
CERCONE, President Judge:
Appellant takes this appeal from the judgment of sentence entered following his conviction, on a jury verdict, of robbery with an offensive weapon,[1] burglary,[2] conspiracy,[3] violation of the Uniform Firearms Act[4] and wantonly pointing a firearm.[5] Appellant raises several issues, all of which are discussed more fully below. However, none of appellant's issues have merit, therefore, we affirm.
*354 On September 21, 1969 at approximately 5:30 a.m., two men robbed the Sheraton Inn in Fort Washington, Pennsylvania, at gun point. The two robbers approached Gennaro A. Signore, an employee of the inn, who was alone at the time, and demanded that he empty the cash drawer. Both men had guns and one of these men, later identified as appellant, David J. Mallon, held a gun to Signore's head. The robbers were not satisfied with the $400.00 that was in the cash drawer and ordered Signore to lead them to the safe. Signore complied and appellant stayed with Signore near the safe while the other robber returned to the cash drawer. Instead of attempting to break into the safe, appellant ordered Signore to turn over his wallet, which Signore did without protest. The scene of the crime had been well lighted, and Signore was able to describe the robber who had taken his wallet as being Caucasian with light colored hair, who wore a suit, stood approximately six feet tall, and weighed roughly 190 pounds.
Subsequently, on October 3, 1969, at Philadelphia Police Headquarters, the victim, Signore, was shown between 50 and 80 slides of different individuals. After Signore had viewed about three-fourths of the slides, he saw one which he thought "looked familiar." This was a picture of appellant. The victim viewed the remainder of the slides, but did not identify anyone. Thereupon, the police showed the victim a photograph of appellant which was taken more recently than the slide. Signore looked at the photograph and positively identified it as being a picture of one of the gunmen. Appellant was arrested and, on October 20, 1969, appellant was put in a line-up in the presence of his attorney. Signore identified appellant in the line-up as being one of the men who committed the robbery.
Originally, appellant's trial was scheduled for June, 1970, however, trial had to be postponed because at that time appellant was in prison in New Jersey. While he was in prison, Pennsylvania obtained custody of appellant under the Interstate Agreement on Detainers Act.[6] Trial commenced *355 on September 27, 1971, and guilty verdicts were returned that same day. At the conclusion of trial, the court postponed sentencing pending the disposition of post-verdict motions. Appellant then asked the court to transfer him back to New Jersey because he didn't like the Montgomery County jail, claiming it was "cruel and unusual punishment" to make him stay there and informed the court that he was willing to waive his rights under the Interstate Agreement on Detainers Act. Prior to the disposition of appellant's post-verdict motions on October 1, 1971, appellant was returned to New Jersey. After appellant's post-verdict motions were denied, Pennsylvania sought to have appellant returned from New Jersey for sentencing, but appellant now refused to return, arguing that Pennsylvania had violated Article IV(e) of the Interstate Agreement on Detainers Act. Thereafter, appellant unsuccessfully fought his return to Pennsylvania in the New Jersey courts when the New Jersey appellate court, on January 2, 1974, ruled that appellant must be returned to Pennsylvania.[7]
Appellant first argues that the lower court erred in denying his pre-trial motion for a continuance which appellant said he needed so that he might have more time to locate defense witnesses. The trial judge, in a well-written and thorough opinion, notes that appellant asked for the continuance ostensibly to procure the presence of a fourth alibi witness. The granting or denial of a continuance is a matter within the discretion of the court, which ruling will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979); Commonwealth v. Hughes, 264 Pa.Super. 118, 399 A.2d 694 (1979). Furthermore, when a continuance is sought for the purpose of obtaining the presence of a witness, the continuance properly may be denied where that witness' testimony would be merely cumulative. Commonwealth v. Howard, 466 Pa. 445, 353 A.2d 438 (1976). Inasmuch as *356 appellant already had three alibi witnesses available to testify, we find no abuse of discretion in the trial court's denial of appellant's motion for a continuance.[8]
Appellant also contends that he had the right to have counsel present during the out-of-court photographic display conducted prior to appellant's arrest. It is settled that an accused has no right to have counsel present at a pre-arrest photographic display. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973). Appellant further contends that the pre-trial line-up was unduly suggestive, alleging that only one other person in the line-up had light colored hair like appellant and the other members of the line-up huddled together so that appellant was more visible. The lower court held a hearing concerning these allegations, during which a photograph of the line-up itself was introduced into evidence. The judge found that appellant's allegations concerning the line-up were not supported by the facts and ruled that the line-up did not violate appellant's constitutional rights. In view of the judge's conclusion on the facts, we find no error in its ruling on the law.
Appellant also contends that his identification in the line-up was tainted by the prior, allegedly illegal, act of the police of showing the victim a single photograph, that of appellant's, immediately following the slide array. As this court said in Commonwealth v. Steffy, 264 Pa.Super. 110, 116, 399 A.2d 690, 693 (1979):
"In order to decide whether the appellant has been denied his constitutional rights, we must determine `whether under the "totality of the circumstances" the identification was reliable even though, the confrontation procedure was suggestive.' Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 [34 L.Ed.2d 401],
.....
*357 The United States Supreme Court has enunciated the factors which contribute to the `totality of the circumstances' test as including `. . . the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' Neil v. Biggers, 409 U.S. at pp. 199-200, 93 S.Ct. at p. 382. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)."
In the instant case, even if the police acted improperly in showing only one photograph to Signore, this does not necessarily mean that the subsequent line-up was tainted. As the trial court noted in its opinion, Signore had an excellent opportunity during the robbery to observe the holdup men. At the suppression hearing, Signore testified that he was with the holdup men for approximately fifteen minutes and that the men were in a well lighted area. Though one of the felons was wearing sunglasses, the man later identified as appellant was not, and Signore was able to give the police an accurate description of him. In all aspects, the "totality of the circumstances" test has been satisfied. Therefore, we find the lower court did not err by admitting the evidence of the line-up procedure at trial.[9]
Lastly, appellant argues that Pennsylvania violated the Interstate Agreement on Detainers Act,[10] Article IV(e), and that appellant should have been discharged according to the provisions of the Act. Article IV(e) provides:
"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's *358 being returned to the original place of imprisonment . . . such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."
We note at the outset that it has been held that the above-cited provision of the Interstate Agreement on Detainers Act [hereinafter IAD] is not a jurisdictional provision, but a personal statutory right. As such, it is waivable. United States v. Palmer, 574 F.2d 164 (3rd Cir. 1978), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978); Camp v. United States, 587 F.2d 397 (8th Cir. 1978); United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1977); United States v. Ford, 550 F.2d 732 (2nd Cir. 1977), aff. sub nom., United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1977). Furthermore, although the Supreme Court has held that generally a "knowing and intelligent" waiver is required when constitutional rights are involved, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); D.H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938),[11] the Court has never required this same high standard to be applied where rights deriving from a statute are at issue. Accordingly, the United States Court of Appeals for the Third Circuit has said: "When a claim of a fundamental right under the Constitution is at stake, the Supreme Court has determined that a strict waiver standard must be applied. Due process, however, does not compel the same strict standard when state-conferred rights are at stake." United States ex rel. Payton v. Rundle, 472 F.2d 36, 40 (3d Cir. 1972).
*359 In view of the above, it is therefore not surprising to find that of the courts which have ruled on the question of waiver of IAD rights by a defendant, the majority have found that the waiver need not meet the "knowing and intelligent" standard of Zerbst, merely a voluntary waiver[12] is sufficient. Ergo, in United States v. Scallion, supra, the court held that the prisoner waived his Article IV(e) rights by requesting prior to trial to be returned to his original place of imprisonment in another jurisdiction to attend his parole hearing. Similarly, in United States v. Ford, supra, the circuit court ruled that by requesting his transfer from state to federal authorities so that he might be closer to his family and to his attorney, a state prisoner waived his objections under Article IV(e). In Gray v. Benson, 458 F.Supp. 1209 (D.Kan. 1978), it was held that a prisoner waived his Article IV(e) rights by requesting to be returned to state prison prior to completion of his federal prosecution so that he might receive adequate medical treatment.[13] Also on point is the decision in United States v. Dixon, 592 F.2d 329 (6th Cir. 1979), wherein the court found that a prisoner waived his Article IV(e) rights where a federal prosecutor made a written request for a temporary transfer of custody between federal and state jurisdictions at the behest of, and as a courtesy to, defense counsel, and where the purpose of the request was not to facilitate prosecution of outstanding federal charges, but was to permit defense counsel to confer *360 with his client. Additionally, in Camp v. United States, 587 F.2d 397 (8th Cir. 1978), the court found a waiver of Article IV(e) rights where the prisoner voluntarily returned to the receiving state to enter a plea of guilty.[14]
In the instant case, appellant asked the trial court to order his return to the New Jersey prison because appellant liked those facilities better, and because appellant had a job in the New Jersey prison which he thought he might lose if he did not return shortly. Appellant even offered to formally and specifically waive his rights under the Interstate Agreement on Detainers Act, though, as case law tells us, such a "knowing and intelligent" waiver is not necessary to an effective waiver of statutory rights under the Act. The important fact is that appellant urged the trial court to return him to New Jersey. This is sufficient for a waiver.
It should be noted that this Court is aware of the fact that in United States v. Mauro, 544 F.2d 588 (2nd Cir. 1976), rev'd on other grounds, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that court ruled that Article IV(e) rights can only be waived by a "knowing and intelligent" waiver.[15] As did the court in United States v. Eaddy, supra, we specifically note our disagreement with this aspect of Mauro. Furthermore, we think the precedential value of the circuit court's opinion in Mauro is open to question. Aside from the fact that Mauro was ultimately reversed, albeit on other grounds, it is important to note that United States v. Ford, supra, a later *361 case decided in the same circuit as Mauro, found a waiver of Article IV(e) rights when the prisoner merely requested a transfer in order to be closer to his family and his attorney. Ford does not appear to require a "knowing and intelligent" waiver. Therefore, we do not find the circuit court's opinion in Mauro to be persuasive.[16]
Accordingly, finding no merit in any of appellant's arguments, we affirm.
Affirmed.
HOFFMAN, J., concurs in the result.
NOTES
[1] 18 P.S. § 4705 (1945).
[2] 18 P.S. § 4901 (1945).
[3] 18 P.S. § 4302 (1945).
[4] 18 P.S. § 4628 (1945).
[5] 18 P.S. § 4716 (1945).
[6] See note 10, infra, and accompanying text.
[7] In addition to the delay caused by appellant's fighting extradition, some of the delay between conviction and sentencing was caused by the fact that appellant escaped from the New Jersey prison, although he was later recaptured.
[8] Inasmuch as the testimony of this fourth alibi witness, appellant's brother, was merely cumulative and constituted no basis for a continuance, the question of whether the testimony was also objectionable because appellant failed to comply with the notice requirements of former Pa.R.Crim.P. 312 is moot.
[9] Appellant also argues that the evidence was insufficient to support a conviction because the victim's in-court identification of appellant was tainted by viewing the photograph. Though this is not, strictly speaking, an argument on the sufficiency of the evidence, we reject it in any event for the same reasons we held that the line-up was not tainted by the photograph.
[10] The Interstate Agreement on Detainers Act is now found at 42 Pa.C.S. § 9101 et seq. (Supp. 1979).
[11] Concisely stated, a "knowing and intelligent" waiver is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.
[12] The meaning of a voluntary waiver in the context of the IAD was clarified by the court in United States v. Eaddy, 595 F.2d 341 (6th Cir. 1979). Therein the court noted that rights under Article IV can be waived by a "knowing and intelligent" waiver but the court went on to say that additionally "the substantive rights accorded to a prisoner under Article IV may be waived, even though the prisoner is not aware of these rights, where there is an affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV(c) or (e)." Id. at 344. Therefore, where the prisoner himself or by his counsel requests the transfer, this can be said to be a voluntary waiver of Article IV rights.
[13] In its opinion, the Gray court noted that if rights under the Detainers Act were not waivable, then a prisoner would not be able to request a pre-trial return to the sending jurisdiction for a parole hearing on other legitimate purpose because this would result in an automatic dismissal of the indictment.
[14] While it might be argued that Camp is distinguishable from the case sub judice because a guilty plea has been held to operate as a waiver of all non-jurisdictional defects or errors, Camp v. United States, supra, 587 F.2d at 399 and cases cited therein, it nonetheless is important to note that the court in Camp ruled on the question of whether a prisoner can be said to have waived a right of which he was not aware. On this issue, the court wrote, "[T]he IAD amounts to nothing more than a statutory set of procedural rules which clearly do not rise to the level of constitutionally guaranteed rights." Id. at 400.
[15] The circuit court's opinion in Mauro was relied upon as authority in Enright v. United States, D.C. (1977), 434 F.Supp. 1056, aff'd on reargument, D.C. (1977), 437 F.Supp. 580, reversed, 573 F.2d 1289 (2nd Cir. 1978) (per curiam). Enright also held that Article IV(e) rights can only be waived by a "knowing and intelligent" waiver.
[16] It may be that appellant's rights under the IAD Act were protected since appellant's trial was completed before he was returned to New Jersey; he simply was not sentenced. It would appear that if the IAD had meant tried and sentenced, it would have used the term "conviction" instead of "trial." We need not decide this issue now since we find that appellant clearly waived his IAD rights.
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491 Pa. 339 (1980)
421 A.2d 166
ESTATE of Charlotte H.S. HOUSTON, Deceased.
Appeal of Charles Wardell BROWN, Jr. and Wayne W. Brown.
Appeal of W. West FRAZIER, IV, Bettina Frazier Wall and Josephine Frazier Hart.
Appeal of Sarah L.O. SMITH and Mary Minor C. Smith.
Supreme Court of Pennsylvania.
Argued April 14, 1980.
Decided September 22, 1980.
*340 Philip A. Bregy, Philadelphia, for appellant in No. 260 and appellee in Nos. 263 and 266.
Norman H. Brown, Philadelphia, for appellant in No. 263 and appellee in Nos. 260 and 266.
William H. Ewing, Philadelphia, for appellant in No. 266 and appellee in Nos. 260 and 263.
Joseph E. Greene, Jr., Philadelphia, for appellee in No. 260.
OPINION OF THE COURT
ROBERTS, Justice.
In her will, decedent Charlotte H.S. Houston directs that the income from her two residuary trusts be paid to the two *341 children of her first marriage. She then directs that, after the deaths of these two children and "upon my youngest grandchild reaching the age of twenty-one (21) years . . ., the balance and principal of both said trusts be paid and distributed to such of my grandchildren as may be living at the time of my death. . . ."
Presented in these appeals are two questions: (1) whether testatrix intended grandchildren born after her death to share in the gift of principal; and (2) if not, whether she nonetheless intended to include in the gift those grandchildren of her second marriage born during her lifetime. We share the unanimous conclusion of the orphans' court en banc that the words "such of my grandchildren as may be living at the time of my death" unambiguously exclude afterborn grandchildren. We also conclude, as did three of the six judges below, that the only reasonable interpretation of the language of the will and the surrounding circumstances is that testatrix intended the principal to be paid to only the grandchildren of her first marriage.
Charlotte H.S. Houston died in 1940 at age seventy-two, having executed a will dated February 15, 1934, and a codicil dated October 22, 1934.[1] By her first marriage to Charles W. Brown, testatrix had a son, Charles, and a daughter, Charlotte Brown Frazier. Her son Charles died in 1951, survived by both his sons, Charles, Jr., and Wayne[2] (the Brown grandchildren). Her daughter Charlotte died in 1973, survived by her three children, W.W. Frazier IV, Josephine Frazier Hart, and Bettina Frazier Wall (the Frazier grandchildren).
Testatrix's first husband died in 1898. Thereafter she married Samuel F. Houston, by whom she had one child, Eleanor Houston Smith. On the date testatrix executed her will, Mrs. Smith had a three month old child, Lewis. Mrs. *342 Smith had three more children prior to testatrix's death[3] and two more afterwards (the Smith grandchildren).
Testatrix's second husband was an extremely wealthy man. During the Great Depression, his one-third share of the income of his father's trust amounted to at least $300,000 annually. At the time of distribution, the estate of Samuel F. Houston's father was estimated to be approximately $145,000,000. It was divided into twelve equal parts, with one part going to Eleanor Houston Smith, who in 1934 was an heir apparent. Testatrix's own estate was valued at approximately $1,100,000 at the time of her death.
In her will, testatrix provided for several specific bequests to relatives and friends, including a life estate in a summer home to Eleanor Houston Smith, the daughter of her second marriage, and remainder in fee to her daughter's son. Testatrix left nothing to her husband, although she did refer to him in the will as "my beloved husband, Samuel Frederick Houston." In Paragraph 26 of her will, she directed that her residuary estate be placed in trust. Trust income was to be paid to the children of her first marriage, Charles Brown and Charlotte B. Frazier, during their lives.[4] In Paragraph *343 27, testatrix made the following provisions for the termination of the trust and the distribution of the corpus:
"The trusts above created shall continue until the death of my daughter Charlotte B. Frazier and my son Charles Wardell Brown, Sr. and until my youngest grandchild shall have reached the age of twenty-one (21) years. Upon my youngest grandchild reaching the age of twenty-one (21) years (my said daughter and son being deceased), I direct that the balance of principal of both said trusts be paid and distributed to such of my grandchildren as may be living at the time of my death and to the issue then living of such of them as may then be deceased, their heirs and assigns, in equal shares per stripes. Such issue then living taking among them the share only which would be vested in their deceased parent if then living."
The death of Charlotte B. Frazier on October 3, 1973, triggered the provisions for distribution of the trust principal. The trustees filed an accounting in the Philadelphia Court of Common Pleas, Orphans' Court Division, before Pawelec, J. After a hearing, the auditing judge ruled that testatrix intended to include the four Smith grandchildren living at her death in the class gift of principal but that the two afterborn grandchildren, Sarah L.O. Smith and Mary M.C. Smith, were specifically excluded from the gift.
The Browns and Fraziers filed exceptions to the adjudication, challenging the inclusion of any of the Smith grandchildren. The afterborn Smith grandchildren also filed exceptions to the court's ruling which excluded them from participation in the gift. The orphans' court en banc unanimously *344 agreed that the afterborn grandchildren were not included in the gift of principal. However, the court en banc divided equally as to whether the other grandchildren of testatrix's second marriage should be included in the gift. Cross appeals were filed in this Court.
The afterborn Smith grandchildren, appellants at No. 266 January Term, 1978, argue that the auditing judge and the court en banc improperly excluded them from the class of grandchildren. They claim that testatrix's use of the phrase "grandchildren . . . living at the time of my death" was intended to exclude only grandchildren who predeceased her. The Brown and Frazier grandchildren, appellants at Nos. 260 and 263 January Term, 1978, contend that both the language of the paragraphs relating to the residuary estate and the circumstances surrounding the execution of the will compel the conclusion that testatrix intended only the grandchildren of her first marriage to be beneficiaries of the trust principal.
"It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator." Sykes Estate, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978), quoting Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973); accord, e.g., Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977). "To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding the execution of the will and other facts bearing on the question." Sykes Estate, supra, 477 Pa. at 257, 383 A.2d at 921; accord, Hamilton Estate, supra; Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970). Only if the intent does not appear with reasonable certainty will a court resort to canons of construction. McDowell National Bank v. Applegate, 479 Pa. 300, 388 A.2d 666 (1978); Sykes Estate, supra; Hamilton Estate, supra.
We turn first to the question of whether testatrix intended to include the Smith grandchildren born after her death in the distribution of principal, for its resolution will cast considerable light on the more difficult question of whether testatrix intended any of the Smith grandchildren to take.
*345 The plain meaning of the language of the will provides the answer to the former question. We are convinced, as were all of the judges below, that the language directing distribution "to such of my children as may be living at the time of my death and to the issue then living of such of them as may then be deceased" unequivocally excludes the afterborn Smith grandchildren. There is simply no justification in logic or law for concluding otherwise. Indeed, "[e]very word and every clause in a will must, if reasonably possible, be given effect; we cannot ignore or delete or render nugatory testatrix's language except in the unusual case where the language of her entire will demonstrates that the language in question was inadvertently used and did not express testatrix's true intent." Collins Estate, 393 Pa. 519, 522, 143 A.2d 45, 47 (1958); accord, McDowell National Bank v. Applegate, supra.
The afterborn Smiths urge us to ignore the clear meaning of the language and to regard testatrix as having intended all of her grandchildren to take. The above phrase, they claim, was used purely to avoid the effects of double taxation on gifts passing through two estates. That such a use is consistent with an intent to benefit only some or even none of the Smith grandchildren is obvious. Moreover, the Smiths have presented no convincing evidence that testatrix's use of the phrase was inadvertent; rather, as will appear, there is every reason to believe that testatrix meant exactly what she said. Thus, we must conclude that testatrix did not intend to include afterborn grandchildren in the gift of principal.
We now turn to whether testatrix intended the Smith grandchildren born before her death to share in the trust principal. Here, testatrix's intent cannot be determined with reasonable certainty from the language of the will alone. On the one hand, as the Browns and Fraziers contend, Paragraph 27 could be read in conjunction with the preceding paragraph, in which testatrix vests the entire income interest in the trust in the Brown and Frazier families and nowhere mentions her daughter by her second marriage. From such a reading it might be concluded that *346 when testatrix used the words "my youngest grandchild" and "such of my grandchildren" in Paragraph 27, she had in mind only the grandchildren of whom she had previously been speaking. The Smith grandchildren, on the other hand, argue with equal force that the contrast between the specificity of Paragraph 26 and the generality of Paragraph 27 demonstrates that in the latter paragraph testatrix was no longer thinking of only the grandchildren of her first marriage but of all of her grandchildren by both marriages.[5]
An examination of testatrix's scheme of distribution also fails to resolve the apparent ambiguities of the instrument. To prove, as the Smiths have, that testatrix wished to distribute her estate widely among persons close to her and that she did not intend to exclude the Smith grandchildren entirely from her bounty is not to prove that she did intend to include them in the gift of the trust principal. Nor is the exclusion of Eleanor Houston Smith and her children from any share of the trust income proof without more that testatrix intended to exclude the Smith grandchildren from the gift of principal.[6]
Thus, we must look to the circumstances surrounding the execution of the will to determine whether it is possible to *347 "give reasonable effect to every word and every clause" of Paragraph 27 in a manner consistent with testatrix's intent. Collins Estate, supra.
The remarkable size of the Houston family fortune has already been noted. Whether or not testatrix was aware of the full extent of her husband Samuel Houston's wealth, she was clearly aware that it was very substantial, that it greatly exceeded her own, and that her younger daughter, Eleanor Houston Smith, would be very well provided for. Also, ten months after she executed her will, testatrix and her husband created a life insurance trust in favor of only the Brown and Frazier grandchildren. Both her indisputable awareness of the Houston fortune and her creation of the insurance trust support the conclusion that testatrix felt a greater financial concern for the grandchildren of her first marriage than for the grandchildren of her marriage to Samuel F. Houston and thus intended to include only the Browns and Fraziers among the distributees of her residuary trust principal.
What compels the conclusion that testatrix did intend to include only the grandchildren of her first marriage is, as will appear, her view that grandchildren would possibly be born after her death to Eleanor Houston Smith but not to Charlotte Brown Frazier or Charles W. Brown. At the time she executed her will, testatrix was sixty-six years old. Her daughter Eleanor Houston Smith was twenty-four years old and had had her first child only three months earlier. On the other hand, testatrix's elder daughter Charlotte was then thirty-eight years old. Her youngest child was nearly six, and her two older children were twelve and ten. Testatrix's son Charles was forty-one years old, and his sons were eight and six. From the language of the will it is clear that testatrix contemplated future grandchildren in the Houston-Smith line. In Paragraph 12 she directs her daughter Charlotte to try to find some piece of jewelry for "each girl among my and my husband's granddaughters, more especially *348 my namesakes." Because testatrix had at the time only one such namesake, Charlotte Josephine Frazier, she must have believed that Eleanor Houston Smith would bear additional children.
This circumstance gives reasonable meaning to testatrix's direction that the trust principal be distributed "to such of my grandchildren as may be living at the time of my death and to the issue then living of such of them as may then be deceased." As we have stated, this direction cannot be interpreted to include afterborn grandchildren. Yet all parties agree that the deliberate exclusion by testatrix of grandchildren born after her death into any line would be strikingly contrary to her manifest generosity. If testatrix foresaw the possibility of any of her children having children after her death, the clear meaning of the above direction requires the inference that she intended to exclude the afterborns in that line. Such an inference is inescapable in the case of Eleanor Houston Smith and her infant son, for testatrix could not have reasonably discounted the possibility that her twenty-four year old daughter might continue to bear children for many years. On the other hand, testatrix could well have reasonably believed that her thirty-eight year old daughter and the wife of her forty-one year old son were past their childbearing years. Intending to benefit only their lines, testatrix would then have had no occasion to consider the exclusion of afterborn grandchildren. Her only concern would have been to provide for distribution in the event of a decrease in the number of Brown and Frazier grandchildren before her death, a possibility to which the above direction is directly addressed.
In light of testatrix's view of the differing financial expectations of the grandchildren of her two marriages, her exclusion of all of the Smith grandchildren from the gift of principal is also entirely consistent with her generosity. As Judge Shoyer observed in his opinion in support of reversal of the decree nisi, "[i]t is clear to us that testatrix realized *349 that by including the Smith grandchildren, she would be creating inequality, for the Houston inheritance would advance the fortunes of the Smith line far beyond her `[power] to add or detract.'"
The Smiths argue that testatrix may well have expected her daughter Charlotte to bear more children. They note that in both the will and the insurance trust testatrix refers to the two sons of Charles Brown by name, whereas she refers to the three children of Charlotte Frazier as children. Thus, they contend, testatrix must have believed that the class of Frazier grandchildren might increase. This argument, however, depends upon the assumption that testatrix did not expect further grandchildren in the Brown line, yet the Smiths concede that it was "theoretically" possible for the Browns to have more children.[7] When one recalls that Charles Brown, Sr., was forty-one years old and his sons eight and six when the will was executed (the record does not disclose the age of Mrs. Brown), the "theory" becomes no less likely than the theory that testatrix expected Charlotte Frazier to continue to bear children. It is more reasonable to assume that, in light of their ages, testatrix expected neither Charles nor Charlotte to produce children after her death (an expectation which proved to be correct) and that she referred to the Fraziers as "children" rather than by name because of their greater number and difference in sexes.[8]
Our view that testatrix intended to benefit only the Browns and Fraziers also clarifies what would otherwise be her ambiguous direction that the principal be distributed "upon my youngest grandchild reaching the age of twenty-one." *350 Because the words directing distribution to grandchildren "living at the time of my death" occur after the above phrase, we would have to distort the syntax of testatrix's language in order to read "youngest grandchild" to mean "youngest grandchild born before my death." This we cannot do. See, e.g., Kelsey Estate, 393 Pa. 513, 143 A.2d 42 (1958). The only grammatically and logically reasonable interpretations of this ambiguity are that testatrix meant either the youngest of all of her grandchildren or the youngest of the Brown and Frazier grandchildren. She could not have meant the former, however, for then the satisfaction of the condition by an afterborn grandchild-who could not take-might well have triggered the distribution. On the other hand, if, as we have seen, testatrix meant to benefit only the Browns and Fraziers, she would logically make the distribution dependent upon the attainment of age twenty-one by the youngest grandchild who could take.
As this Court observed in Henderson Estate, 405 Pa. 451, 456, 176 A.2d 428, 430 (1962), "A court has no right to create equality among grandchildren even if we think that is desirable, unless the testatrix clearly intended to create equality among all her grandchildren, and this she failed to do." We thus conclude that testatrix intended to include only the Brown and Frazier grandchildren in the gift of her residuary trust principal. Such a conclusion-and no other-gives reasonable effect to "every word and every clause" of Paragraph 27 and accords with the circumstances surrounding the execution of the will. Collins Estate, supra; accord, McDowell National Bank v. Applegate, supra, Blough Estate, supra.
The decree at No. 266 is affirmed. The decree at Nos. 260 and 263 is reversed, and the case is remanded for the entry of an appropriate decree consistent with this opinion. Each party to pay own costs.
EAGEN, C.J., dissents.
NOTES
[1] The contents of the codicil are not relevant to these proceedings.
[2] Also known as Joseph Williams Brown.
[3] One of these children was en ventre sa mere when testatrix died and is thus considered to have been born prior to her death. Trattner Estate, 394 Pa. 133, 145 A.2d 678 (1958); Barker v. Pierce, 30 Pa. 173 (1858).
[4] "26. All the rest, residue and remainder of my estate, . . . I give. . . to my trustees . . . in trust, . . . to pay over the net income therefrom in manner following:
FIRST: I direct that one half of the net income therefrom shall be paid and distributed to my daughter Charlotte B. Frazier for and during her natural life; and at and immediately after her decease,. . . the income . . . shall be paid and distributed to and among the children of my said daughter in equal shares, share and share alike until the termination of the trust.
SECOND: I direct that the other half of the net income therefrom shall be paid and distributed as follows:
(a) . . .
(b) I direct that the sum of Five Thousand (5,000) Dollars be paid and distributed to each of my grandchildren, Charles Wardell Brown, Jr. and Joseph Williams Brown, for their maintenance, education and support, during minority, and when they arrive at the age of twenty-one (21) years, then to pay same direct to them until the termination of the trust;
(c) I direct that the balance of said income shall be paid and distributed to my son Charles Wardell Brown, Sr. for life, provided that when his share of annual income shall reach Twelve Thousand (12,000) Dollars, I direct that any surplus income over and above Twelve Thousand (12,000) Dollars per annum shall be paid unto him and his two sons, Charles Wardell Brown, Jr. and Joseph Williams Brown, in equal shares, until the termination of the trust;. . . upon the death of said son Charles Wardell Brown, Sr. . . ., I direct that the entire income of this trust shall be paid and distributed to his sons Charles Wardell Brown, Jr. and Joseph Williams Brown, in equal shares, until the termination of the trust."
[5] Both sides have adduced numerous cases in which this Court has construed the language of disputed class gifts to be restrictive [e.g., Sowers Estate, 383 Pa. 566, 119 A.2d 60 (1956); Britt Estate, 369 Pa. 450, 87 A.2d 243 (1952)] or inclusive [e.g., Earle Estate, 369 Pa. 52, 85 A.2d 90 (1951); Witman v. Webner, 351 Pa. 503, 41 A.2d 686 (1945)]. All these cases are merely authority for the rule that a will must be interpreted in accordance with the testator's intent, if that intent can be determined with reasonable certainty. "`No will has a brother,' declared Sir William Jones . . . Each will is its own best interpreter, and a construction of one is no certain guide to the meaning of another [citations omitted]." Williamson's Estate, 302 Pa. 462, 466, 153 A. 756, 766 (1931); accord, Benson Estate, 447 Pa. 62, 285 A.2d 101 (1971).
[6] The Browns claim that the orphans' court erred in ruling inadmissible a memorandum written by Samuel Houston which explains the reasons for his belief that his wife intended only the Brown and Frazier grandchildren to receive the trust principal. Because we are able to determine testatrix's intent with sufficient certainty from the language of the will and the surrounding circumstances, there is no need to address this contention.
[7] Smiths' brief at 17; italics in original.
[8] We also note that in Paragraph 26 testatrix made specific provision for the education and support of Charles, Jr., and Joseph Williams Brown from the income portion of her residuary trust; she made no such specific provision for the Frazier children, preferring to bequeath or devise property to each of them elsewhere in the will. Thus, she may have felt less need to refer to the Frazier children by name in that paragraph.
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279 Pa. Superior Ct. 499 (1980)
421 A.2d 310
Evelyn MULLEN, Appellant,
v.
Paul SUCHKO.
Superior Court of Pennsylvania.
Argued November 14, 1979.
Filed August 8, 1980.
Reargument Denied October 31, 1980.
*500 C. James Kutz, Greensburg, for appellant.
Thomas R. Ceraso, Greensburg, for appellee.
Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
*501 HOFFMAN, Judge:
Appellant contends that the lower court erred in sustaining appellee's preliminary objections and dismissing her complaint in assumpsit and trespass. We agree and, accordingly, reverse the order of the court below and remand for further proceedings.
The facts as set forth in appellant's complaint are as follows: Appellant and appellee began seeing each other socially in late 1977. In early 1978, appellee took appellant with him on several overnight trips to cities in the United States and Mexico. Appellee repeatedly requested that appellant quit her job in order to be available to go on more trips with him. He promised that in exchange he "would take care of her for the rest of her life." In reliance upon appellee's promise, appellant quit her job of 33 years and embarked on various trips with appellee. In April of 1978, appellee moved into appellant's home and began paying many of appellant's expenses as well as giving her $500.00 per month. In July of 1978, appellee left appellant's home permanently and stopped assisting her financially.
Based upon these facts, appellant instituted suit against appellee in assumpsit and trespass. The assumpsit count alleged that, as a result of appellee's breach of his agreement to take care of her, appellant had suffered damages including: lost wages, lost employee benefits, and indebtedness to her family for support. Appellant sought judgment on this count of $108,143.17. The trespass count alleged that, as a result of appellee's conduct, appellant had suffered severe emotional distress for which she demanded judgment in excess of $10,000. Appellee filed preliminary objections in the nature of a demurrer to the complaint. With respect to the assumpsit count, appellee alleged that the contract asserted by appellant was contrary to public policy and void because appellee at all relevant times has been a married man. The lower court concluded that the assumpsit count did not set forth a valid cause of action because it was contrary to the public policy against contracts in consideration of sexual intercourse and against contracts facilitating *502 divorce. Similarly, the court found that appellant had not made out a cause of action for intentional infliction of emotional distress because appellee's actions could not be deemed "outrageous." Appellant now appeals from the court's order dismissing her complaint.
In the case of Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976), our Supreme Court summarized the law to be applied in ruling on preliminary objections as follows:
The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).
469 Pa. at 5-6, 364 A.2d at 693.
Appellant contends that the lower court could not properly have concluded from the face of the complaint that the law would not permit recovery under the contract. We agree. The lower court based its decision upon two distinct public policy considerations. First, citing the Restatement of Contracts, the court noted that contracts in whole or in part in consideration of illicit sexual intercourse are illegal.[*]*503 See Restatement of Contracts § 589 (1932). We need not determine whether this statement accurately reflects the law of Pennsylvania. Assuming, arguendo, that this is the law, we conclude that appellant's complaint does not set forth a contract violative of the cited principle. The complaint alleges only appellee's agreement that, if appellant would leave her job and make herself available to travel with him, and spend time with him, he would take care of her for the rest of her life. No mention is made in the complaint of a sexual relationship between the parties, nor is it alleged or implied therein that sexual intercourse formed a portion of the consideration for the contract. Thus, the record as it presently stands does not support the lower court's conclusion that appellant sought recovery on a "a promise to take care of her in exchange for meretricious sexual services and nothing else." Slip op. at 4. Accordingly, it was improper for the court to sustain appellee's preliminary objections on that basis.
The lower court also cited the principle that "contracts tending to facilitate a divorce, although not made for the sole purpose of obtaining a divorce, are illegal." Lurie v. Lurie, 246 Pa.Super. 307, 313, 370 A.2d 739, 742 (1976). In Lurie, this Court summarized the types of agreements which have been deemed invalid because they facilitate divorce. "These include agreements which provide that one of the spouses will not present a defense to an action for divorce by the other, see Gershman v. Metropolitan Life Ins. Co., 405 Pa. 585, 176 A.2d 435 (1962); American Nat'l Bank of Camden v. Kirck, 317 Pa. 551, 177 A. 801 (1935); Shannon's Estate, 289 Pa. 280, 137 A. 251 (1927); Miller v. Miller, 284 Pa. 414, 131 A. 236 (1925), that no appeal will be taken or exceptions filed, see Glennon v. Glennon, 92 Pa.Super. 94 (1927), or that one spouse will furnish evidence or aid the initiator of the divorce, see Miller v. Miller, supra; Glennon v. Glennon, supra." 246 Pa.Super. at 313, 370 A.2d at 742. We concluded in Lurie that a distinction exists between *504 agreements which "remove impediments" to obtaining a divorce and those which are merely "collaterally conducive to divorce." Id., 246 Pa.Super. at 316, 370 A.2d at 743. Only the former are contrary to public policy. Because the agreement under scrutiny in Lurie was "a bona fide adjustment of property rights" containing provisions collaterally conducive to "earlier institution of divorce proceedings by a spouse having valid grounds," we found that it came within the category of valid agreements. Id. Finally, we noted that there was no evidence of collusion to obtain a divorce where grounds for divorce did not exist. Id. See also Lurie v. Lurie, supra (SPAETH, J., concurring).
In the instant case, we conclude that the agreement described in appellant's complaint was no more than "collaterally conducive" to divorce. The alleged contract did not explicitly contemplate divorce, or remove impediments to divorce. The face of the complaint demonstrates no element of collusion to obtain a divorce where no ground existed. Any connection which may have existed between the contract as alleged and a potential divorce was too remote to bring the agreement within the public policy against facilitating divorce. Considering the averments of the complaint, the sparseness of the record, and the presumption in favor of overruling demurrers, we conclude that the lower court erred in sustaining appellant's preliminary objections to the assumpsit count of appellant's complaint. Accordingly, we overrule the preliminary objections to that count and order the case to proceed.
Appellant also challenges the lower court's order dismissing the count of her complaint which sought recovery for intentional infliction of emotional distress. The second Restatement of Torts provides that: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement (Second) of Torts § 46 (1965). "It is apparent that the gravamen of this tort is that the conduct complained of *505 must be of an extreme and outrageous type." Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1977). "Plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind." Id.
We agree with the lower court that, even accepting as true all of the facts set forth in appellant's complaint, she has failed to state a cause of action for intentional infliction of emotional distress. Although the actions of appellee were decidedly "inconsiderate and unkind," they were not of the "extreme and outrageous" sort. Accordingly, we affirm that portion of the lower court's order dismissing the second count of appellant's complaint.
Reversed in part and remanded for further proceedings consistent with this opinion.
SPAETH, J., files a concurring opinion.
SPAETH, Judge, concurring:
I agree with the result reached by Judge HOFFMAN, and join in much of what he says. I offer this opinion because I believe that our decision need not rest on reading the complaint as not implying that sexual intercourse was a part of the consideration. If the experience of other states is any guide, we may expect to see an increasing number of cases involving various types of non-marital contracts. It is therefore particularly important that we make clear the standards to be used in determining whether such a contract is in violation of our public policy and hence unenforcible.
In her complaint appellant alleges that appellee said that if she would quit her job, which she had held for more than thirty years, and be available to spend time with him and travel with him during the week, he would take care of her for the rest of her life. Appellant further alleges that in reliance on appellee's promise, she did quit her job and appellee subsequently moved into her house and for a period of several months paid many of her expenses and gave her *506 approximately $500 a month, but that he then moved out of the house and stopped providing financial support.
The lower court characterized the contract thus pleaded as a contract "to take care of [appellant] in exchange for meretricious sexual services and nothing else." Slip op. at 4. The facts pleaded in the complaint and these were the only facts properly before the lower court do not support this characterization of the contract. Not only was the court not free to ignore the facts as pleaded but on demurrer it was obliged to take them as true. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). As Judge HOFFMAN points out, there is no allegation in the complaint of a sexual relationship between the parties much less any allegation that the contract was for "sexual services and nothing else." The question remains, however, whether on a fair reading, the allegations of the complaint imply that sexual intercourse was part of the consideration for the contract.
The lower court relied on the Restatement of Contracts § 589 (1932). According to the Restatement, if illicit sexual intercourse is any part of the consideration for a contract, the contract is unenforcible. However, section 589 goes on to state, in a portion not quoted by the lower court, that the fact of intercourse between the parties to a contract is not by itself enough to invalidate the contract. The key question for the Restatement is whether or not the intercourse forms any part of the consideration.[1] Here, since there is no allegation that intercourse did form any part of the consideration, Judge HOFFMAN reads the complaint as alleging, *507 in effect, that intercourse did not form any part of the consideration. Given this reading of the complaint, there can be no question that it pleaded an enforcible contract.
I concede that this approach is consistent with the principle that on demurrer, a complaint must be read most favorably to the pleader. Gekas v. Shapp, supra. However, I am not convinced that it was necessary to go so far to protect appellant's interests, even on demurrer.
One way that courts over the years have limited the impact of the "any part of the consideration" language in the Restatement has been by finding two separate agreements, one for sexual intercourse and unenforcible, the other based on other consideration and enforcible. E.g., Trutalli v. Meraviglia, 215 Cal. 698, 12 P.2d 430 (1932). See Bruch, Property Rights of De Facto Spouses, Including Thoughts on the Value of Homemakers' Services, 10 Fam.L.Q. 101 (1976). This line of cases stands behind the language in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976), and Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979), to the effect that express agreements should be enforced except to the extent that they are expressly and inseparably founded on sexual services. See also our very recent case, Baldassari v. Baldassari, 278 Pa.Super. 312, 420 A.2d 556 (1980).[2]
In reality, it seems unlikely that apart from a contract for prostitution, many contracts will be found where there is express mention of sexual services. In a way, then, by focusing on the words, cases like Marvin and Kozlowski avoid what in many instances will be the clearly implied substance of a contract. I therefore prefer the approach taken by the Supreme Court in Oregon in Latham v. Latham, 274 Or. 421, 547 P.2d 144 (1976). In that case the court acknowledged that sexual intercourse was a part of the consideration but refused to deny enforcement "where *508 consideration was not restricted to sexual intercourse but contemplated all of the burdens and other amenities of married life." Id. at 427, 547 P.2d at 147. To me, the importance of Latham is the court's willingness to look at the contract as a whole, without closing its eyes to what was clearly implied, or making the result depend on whether the sexual aspect of the contract was "express" or "separable."
I should like to offer two other comments. First, although I agree with Judge HOFFMAN that appellant has pleaded an enforcible contract, I think it should be noted that the damages she pleads do not follow from the breach she pleads. The breach she pleads is that appellee broke his promise to take care of her for the rest of her life. The damages she pleads are not life-time support but lost wages, lost medical benefits, and reduced pension benefits. Second, although I agree with Judge HOFFMAN's analysis of why the contract should not be denied enforcement as tending to facilitate a divorce, strictly speaking, we need not reach that issue, for the complaint does not allege that appellee is married. To be sure, the demurrer alleges that he is, but that simply makes it a "speaking demurrer." Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 361 A.2d 375 (1976).
For the foregoing reasons, I concur in the majority's decision that the order of the lower court should be reversed.
NOTES
[*] Similarly, the California Supreme Court held in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976), that "[t]he courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious services." Id. at 665, 557 P.2d at 110, 134 Cal.Rptr. at 819. See also Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979).
[1] Section 589 is part of Topic 10, Bargains Concerning Domestic Relations, in Chapter 18, Illegal Bargains. In the tentative draft of the Restatement Second this topic has been retitled "Impairment of Family Relations." Restatement of Contracts Second (tent. draft No. 12, March 1, 1977). Nothing in the new Topic 3 corresponds to the old section 589. The introductory note to Topic 3 observes that "[t]his area of law is currently one of reassessment and change, particularly noticeable in connection with the law relating to divorce and to the rights of women. The rules stated in this Topic are intended to meet current needs and are therefore illustrative rather than exhaustive in their content and are flexible rather than rigid in their statement." Id. at 129. In light of this position of the drafters of the Restatement Second, we should be particularly careful not to apply section 589 mechanically, or uncritically.
[2] The New York Court of Appeals has also just reiterated that for it the key to the enforceability of an express contract between unmarried persons living together is that "illicit sexual relations were not `part of the consideration of the contract.'" Morone v. Morone, 50 N.Y.2d 481, 407 N.E.2d 438, 429 N.Y.S.2d 592 (1980).
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273 S.C. 306 (1979)
257 S.E.2d 496
CRYSTAL ICE COMPANY OF COLUMBIA, INC., Respondent,
v.
The FIRST COLONIAL CORP. and George Bruce Shealy, Charles Marshall Duke, Fred C. Meetze, Carolina, Rock Wool Co., Inc., and First Citizens Bank and Trust Company of South Carolina, Baker-Brown Builders, Inc., and U.S. Fidelity and Guaranty Company, of whom George Bruce Shealy is Appellant.
20944
Supreme Court of South Carolina.
July 19, 1979.
*307 Walter F. Going of Going & Going, Nina G. Reid and Gene V. Pruet of Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.
Robert W. Dibble, Jr., of McNair, Konduros, Corley, Singletary & Dibble and Michael W. Tighe of Callison, Tighe, Nauful & Rush, Columbia, for respondent.
July 19, 1979.
NESS, Justice:
Heretofore, on the 23rd day of April, 1979, this Court filed its opinion in this case. It is now before us as a result of a petition for a rehearing. Upon a consideration of the petition, it is ordered that our former opinion be withdrawn and the following substituted therefore.
The case concerns the priority of two mortgages, a purchase money interest acquired by appellant Shealy and a mortgage executed by the purchaser, First Colonial Corporation, which was assigned to the respondent, Crystal Ice Company. The master concluded the purchase money interest had priority; the trial court disagreed and held that Crystal Ice possessed the first lien. We agree with the master and reverse the order of the trial court.
By contract of sale dated November 9, 1973, appellant Shealy agreed to sell four acres of land near Columbia, to *308 C.M. Rose, Jr., agent for First Colonial, for a purchase price of $70,000. Pursuant to the contract, $18,000 was to be paid in cash and the balance by way of a purchase money mortgage.
On November 26, 1973, First Colonial gave to C.M. Rose and Company, Inc. a mortgage and promissory note in the amount of $45,000. This mortgage was assigned to respondent Crystal Ice for $40,000. On this date the deed and purchase money mortgage were executed.
Also on this date the closing was held in the office of Ken Lester, attorney for Rose and First Colonial. Following the closing, Lester offered to record Shealy's deed and mortgage, and on November 30, 1973, Lester completed the recording as follows:
(1) At 12:20 p. m.
(a) The deed to First Colonial from Shealy;
(b) The mortgage of First Colonial to C.M. Rose and Company;
(c) The assignment of the C.M. Rose and Company mortgage to Crystal Ice.
(2) At 12:21 p. m.
(a) The purchase money mortgage of First Colonial to Shealy.
The trial court concluded Crystal Ice had priority under the South Carolina recording statute. We disagree.
Crystal Ice is not entitled to the protection of our recording statute because it was not a bona fide purchaser. The knowledge of the existence of the prior purchase money mortgage was imputed to Crystal Ice through its agent, attorney Ken Lester. As Crystal Ice was not a "subsequent purchaser without notice," it cannot prevail under Code § 30-7-10 simply because its mortgage was clocked in a minute before the purchase money interest. See Epps v. McCallum Realty Co., 139 S.C. 481, 498, 499, 138 S.E. 297 (1927).
*309 Lester prepared the mortgage and the assignment, and procured title insurance for Crystal Ice. We believe this was sufficient to render Lester the agent of Crystal Ice. As stated in 2A C.J.S. Agency § 52, p. 623:
"The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. The law creates the relationship of principal and agent if the parties, in the conduct of their affairs, actually place themselves in such position as requires the relationship to be inferred by the courts, and if, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency."
Accord, City of Greenville v. Washington American L.B. Club, 205 S.C. 495, 32 S.E. (2d) 777 (1945); Heil-Quaker v. Swindler, 255 F. Supp. 445 (D.C.S.C. 1966).
It is well established that a principal is affected with constructive knowledge of all material facts of which his agent receives notice while acting within the scope of his authority. See 3 Am. Jur. (2d), Agency, § 273, et seq.; 3 C.J.S. Agency § 432, et seq.; American Freehold Land Mortgage Co. v. Felder, 44 S.C. 478, 22 S.E. 598 (1895); Hill v. Carolina Power & Light Co., 204 S.C. 83, 28 S.E. (2d) 545 (1943).
An equally well-recognized exception to this general rule exists in situations where the agent is acting fraudulently against his principal or for any other reason has an interest in concealing his acquired knowledge from his principal. 3 Am. Jur. (2d), Agency, § 282; 3 C.J.S. Agency § 434. However, the view has been expressed that an agent's fraud cannot alter the effect of his knowledge to his principal with respect to third persons who *310 had no connection with the fraud. See Restatement, Agency (2d Ed.), § 271; 3 Am. Jur. (2d), Agency, § 282. We conclude this reasoning constitutes the better view and apply it here, where appellant Shealy had no knowledge that any fraud was being perpetrated. In so holding, we overrule the reasoning expressed in Bacot v. S.C. Loan & Trust Co., 132 S.C. 340, 127 S.E. 562 (1925); Ex Parte Mercer, 129 S.C. 531, 125 S.E. 33 (1924); Farley v. American Surety Co. of New York, 182 S.C. 187, 188 S.E. 776 (1936); Eskew v. Life Ins. Co. of Virginia, 190 S.C. 515, 3 S.E. (2d) 251 (1939), and similar decisions.
Stripped of the protection of the recording statute, Crystal Ice cannot prevail at common law. It is patently obvious that Shealy's purchase money interest necessarily would be prior to the mortgage assigned to respondent; First Colonial had no interest to mortgage until it acquired the Shealy property, and the deed and the purchase money interest were executed simultaneously. As stated in 55 Am. Jur. (2d), Mortgages, § 349, p. 409:
"The reason most frequently advanced for the rule giving preference to purchase-money mortgages over outstanding interests acquired through the mortgagor is that the execution of the deed and the mortgage are simultaneous acts, so that no claim or lien arising through the mortgagor can attach before the mortgage."
In Groce v. Ponder, 63 S.C. 162, 168, 41 S.E. 83, 85 (1902), the Court described a purchase money mortgage as follows:
"The deed and mortgage, although in themselves separate and distinct instruments, nevertheless, under the circumstances above stated, are regarded as parts of the same contract. They take effect at the same time, and the giving of the deed upon one part and of the mortgage upon the other, is held to constitute but a single act, and to result in clothing the purchaser with the seizing for a transitory instant only."
*311 The rule that the equities favor granting priority to a purchase money mortgage is longstanding. The rationale for the preference normally accorded a vendor is stated in Osborne, Mortgages, § 213, p. 392:
"[T]he vendor has the edge because the property he is relying on for payment was previously his up to the time of sale and mortgage back; there was never an instant when he relinquished a hold on it; and he would never have parted with it at all except upon the belief and faith that if his buyer defaulted he could either recapture his property or get paid out of it."
See also Ex Parte Johnson, 147 S.C. 259, 145 S.E. 113 (1928).
We conclude the trial court incorrectly awarded priority to the mortgage assigned to Crystal Ice.
Reversed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur.
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600 N.W.2d 291 (1999)
STATE of Iowa, Appellee,
v.
Mark MULVANY, Jr., Appellant.
No. 98-963.
Supreme Court of Iowa.
September 9, 1999.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Raines and Julie Walton, Assistant County Attorneys, for appellee.
*292 Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and SNELL, JJ.
LAVORATO, Justice.
The defendant, Mark Mulvany, Jr., appeals from the district court's judgment of conviction and sentence following his guilty plea to the charges of harassment in the first degree, harassment in the third degree, and stalking. See Iowa Code §§ 708.7(1), 708.7(2), 708.7(4), 708.11(2), 708.11(3)(c) (1997). Specifically, he contends harassment is a lesser included offense of stalking. For that reason, he argues that the district court erred when, pursuant to Iowa Code section 701.9, it failed to merge one of the harassment convictions with the stalking conviction. We conclude harassment is not a lesser included offense of stalking and therefore affirm.
I. On July 29, 1997, Melody Skalla received twenty-four phone calls within four hours, most of which were hang-up calls. A police officer was present at Skalla's home during seven of those calls. During one call, Mulvany asked if Skalla wanted to "come out and play" and in another call threatened he was "going to kill her." Mulvany also described for Skalla the clothing she wore and the video she rented the day before and also where she sat while watching the video at a male friend's residence.
On July 30 Skalla was at work when Mulvany called her and told her what she was wearing that day and what time she took her break. Additionally, on the same day, Skalla received four hang-up calls at her home. On the fifth call, Mulvany told Skalla she had better be home by ten that night or "he was going to do something bad." Skalla appeared to shake off what Mulvany had said, and he replied, "you'll be laughing when I'm stabbing you to death." When the police arrived at Skalla's residence, she tried to get Mulvany to repeat the threat. Mulvany then said, "you heard what I said" and "[i]f you'd be a little nicer I wouldn't say things like that to you." Mulvany would not speak when an officer would answer the phone and identify himself.
On July 31 Mulvany called Skalla and offered her money to pay for a window he had apparently broken. Skalla hung up. Mulvany called back and told her to quit playing games because she was a "dead... b_____ tonight." Mulvany called back again and said he would see her in a few minutes. Skalla asked him not to call again, and Mulvany answered, "I won't be, but I'll be seeing you."
On August 3 Skalla called the police and asked that they patrol her area. She told the police that Mulvany had assaulted her in Illinois that day. Mulvany called and told her he was on his way to her mother's home where Skalla had been staying. A telephone tracer had identified some of Mulvany's calls were made from Becky Reye's phone, Mulvany's girlfriend and mother of Mulvany's two children.
On August 8 Mulvany called Skalla's mother's home and talked to Skalla's brother. Mulvany asked the boy if he "smelled smoke" and if "something was burning." The boy interpreted these words as a threat to burn the home down.
On August 11 Mulvany called Skalla and told her, "I'm going to have to kill you. I'm going to kill you tonight." Mulvany described how he would stab her. He also correctly identified what she was wearing and doing the last two days.
The State charged Mulvany with five counts of first-degree harassment, one count of third-degree harassment, and one count of stalking. The charges were based on Mulvany's calls and conduct between July 29, 1997, and August 11, 1997. In a plea agreement reached with the State, Mulvany pleaded guilty to these charges. In return for the plea, the State agreed to (1) dismiss another pending charge of stalking, and (2) recommend a period of incarceration of no longer than five years.
*293 The district court sentenced Mulvany to fines of $500 and concurrent terms of incarceration, not to exceed two years on three of the first-degree harassment charges (Counts I, II, and III), and a $50 fine on the charge of third-degree harassment (Count IV). Additionally, the court imposed fines of $500 and terms of incarceration not to exceed two years on the remaining two charges of first-degree harassment (Counts V and VI) and the one charge of stalking (Count VII) to be served concurrently, but consecutively to the sentences on Counts I through III. Mulvany appeals only from Count VI, harassment in the first degree, and Count VII, stalking.
On appeal Mulvany contends harassment in the first degree is a lesser included offense of stalking. Therefore, he argues, the district court should have merged his sentences for these crimes. Mulvany claims the court's failure to do so violates the Double Jeopardy Clause of the Fifth Amendment to the Federal Constitution and Iowa Code section 701.9.
II. We agree with the State that Mulvany has failed to preserve error on his double jeopardy challenge because he did not raise the issue in the district court. As the State points out, we require error preservation even on constitutional issues. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). The State notes, however, and correctly so, that the error preservation rule does not apply to a defendant's statutory claim of an illegal sentence under Iowa Code section 701.9. See id.
III. Because Mulvany alleges a violation of Iowa Code section 701.9, our review is for correction of errors at law. See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994).
IV. Iowa Code section 701.9 requires the sentencing court to merge lesser included offenses:
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
Iowa Code § 701.9; see also Iowa R.Crim. P. 6(2) (providing that, "[u]pon prosecution for a public offense, the defendant may be convicted of either the public offense charged or an included offense, but not both").
We apply the legal-elements test to determine lesser included offenses. See State v. Jeffries, 430 N.W.2d 728, 736 (Iowa 1988). Under this test, we place the applicable statutes
side by side and examine their elements in the abstract. The comparison must produce a nearly perfect match. If the lesser offense contains an element that is not part of the greater offense, the lesser cannot be included in the greater.
Id. at 730 (citations omitted). Stated another way, "the lesser offense is necessarily included in the greater offense if the greater offense cannot be committed without also committing the lesser." Id. at 736 (citation omitted).
The elements of stalking, the greater offense, are:
1. ... [T]he defendant purposefully engaged in a course of conduct directed at [the victim] that would cause a reasonable person to fear bodily injury to, or the death of [the victim].
2. The defendant knew or should have known that [the victim] would be placed in reasonable fear of bodily injury or death to [the victim] or a member of [the victim's] immediate family.
3. The defendant's course of conduct induced fear in [the victim] of bodily injury or death to [the victim] or a member of [the victim's] immediate family.
I Iowa Crim. Jury Instructions 820.1; accord Iowa Code § 708.11(2).
*294 The elements of first-degree harassment, the lesser offense, are:
1. ... [T]he defendant communicated with [the victim] [by telephone], ... without a legitimate purpose, in a manner likely to cause [the victim] annoyance or harm.
2. The defendant communicated a threat to commit [a forcible felony].
3. The defendant did so with the specific intent to intimidate, annoy or alarm [the victim].
I Iowa Crim. Jury Instructions 810.1; accord Iowa Code §§ 708.7(1)(a); 708.7(2).
As the State contends, the crime of first-degree harassment contains elements that are not part of the stalking offense. Those elements include the threat to commit a forcible felony and a specific intent to intimidate, annoy or alarm. Therefore, it is possible to commit stalkingthe greater offensewithout also committing first-degree harassmentthe lesser offense. For example, a person could threaten another with a simple assault (conduct included in element 1 of stalking), which is not a forcible felony (conduct required by element 2 of harassment). And a person could engage in a course of conduct that would cause a reasonable person to fear bodily injury or death (conduct included in element 1 of stalking) without ever communicating to the victim a direct threat with the specific intent to intimidate, annoy or alarm (conduct required by element 3 of harassment).
Contrary to Mulvany's contention, we therefore conclude that merger of the two convictions was not appropriate under section 701.9 because first-degree harassment is not a lesser included offense of stalking. For this reason, the district court did not commit error when it did not merge the two offenses.
Finding no error, we affirm.
AFFIRMED.
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80 S.E.2d 857 (1954)
ROUSH
v.
JOHNSON et al. (two cases).
Nos. 10590, 10591.
Supreme Court of Appeals of West Virginia.
January 20, 1954.
Decided March 30, 1954.
Rehearing Denied May 21, 1954.
*861 Jackson, Kelly, Holt & Moxley, W. T. O'Farrell, W. J. Carter, Charleston, for plaintiff in error, Woodrum Home Outfitting Co., a corporation.
Edwin O. Thornhill, Charleston, for plaintiff in error, Dewey R. Johnson, d. b. a. West Virginia Distributing Co.
Kay, Casto & Chaney, Dale G. Casto, Charleston, for defendant in error. *858 *859
Rehearing Denied in No. 10591 May 21, 1954.
*860 RILEY, Judge.
Ottie C. Roush, administrator of the estate of Roy Jeffers, deceased, instituted in the Court of Common Pleas of Kanawha County this action of trespass on the case against Dewey R. Johnson, doing business as West Virginia Distributing Company, and Woodrum Home Outfitting Company, a corporation, hereinafter referred to as the "distributing company" and the "outfitting company", respectively, to recover damages for the alleged wrongful death of plaintiff's decedent by electrocution. To a judgment in the plaintiff's favor and against the defendants in the amount of ten thousand dollars, the defendants prosecute separate writs of error to this Court to the judgment of the Circuit Court of Kanawha County, refusing writs of error and supersedeas to the judgment of the Court of Common pleas of Kanawha County as plainly right.
The declaration is in three counts. The first count charges negligence on the part of the distributing company in its installation in September, 1948, of an electric compressor and cooler in the store building owned by Kenton (referred to in the declaration and sometimes in the briefs as "Kenneth") and Bess Garton, located on Field's Creek, Cabin Creek District, Kanawha County; the second count charges that the outfitting company was negligent in the installation in November, 1949, of three electrically operated gas floor furnaces in the storeroom and dwelling house connected therewith owned by the Gartons; and the third count is a consolidation of the first and second counts. All three counts of the declaration charge that the negligence alleged therein proximately caused the decedent's death by electrocution.
After setting out the appointment and qualification of the administrator in July, 1950, the third count of the declaration alleges, in substance, that on or about the 11th day of July, 1950, the date on which decedent was electrocuted, and for a long time prior thereto, the distributing company had been engaged in selling and installing compressors and coolers, and the outfitting company had been engaged in selling and installing electrically controlled gas floor furnaces; that Kenneth and Bess Garton were the "owners of a certain building used as a dwelling house and storeroom [the two buildings then being connected], situate on Field's Creek, Cabin Creek District, Kanawha County," in which store building they "operated a grocery store"; that the dwelling and the store building were "properly and carefully wired for the use of electricity including a switch which was placed on the inside wall of a wareroom in said building used in connection with said storeroom."
The third count alleges that on or about the _____ day of September, 1948, the distributing company sold Bess Garton, doing business as "Garton's Grocery", an electrically operated refrigeration unit known as a compressor and beer cooler, and agreed to install the same in the Garton store in a safe and proper manner; that it then and there became and was the duty of the distributing company to install the compressor and cooler in a careful and prudent manner so as not to create a dangerous instrumentality; that not regarding such duty, but in utter disregard thereof, the distributing company carelessly installed the compressor and cooler in such manner that the apparatus was negligently connected with the main switch and fuse box, hereinafter referred to as the "main switch box", so that the compressor and cooler were not protected by the fuses and the switch provided for that purpose, and thereby a dangerous *862 and hazardous instrumentality was created.
The third count of the declaration alleges that in November, 1949, the outfitting company sold to the Gartons and agreed to install in the Garton dwelling and store building in a safe and proper manner three electrically controlled gas floor furnaces; that it then and there became and was the duty of the outfitting company to install the furnaces in a careful and prudent manner; that not regarding such duty, but in utter disregard thereof, the outfitting company negligently and unskillfully connected with "a switch box installed by" the distributing company, causing a copper tube leading from the compressor to the cooler "to be charged with electricity, said copper tube being located under said grocery store between the floor and the ground."
The third count further alleges that in July, 1950, Kenneth and Bess Garton, the owners of the store building and dwelling, employed and contracted with Vergil Fike to disconnect the store building from the dwelling house, and to move the store building to a new location; that it became necessary for Fike and his employees, including his foreman, the decedent, Roy Jeffers, to go on the premises for the purpose of removing the store building; that on the _____ day of July, 1950, Jeffers and a number of men under him arrived at the Garton property and began work preparatory to moving the store building; that the movers were lawfully on the premises at the invitation and request of the Gartons; and that it thereupon became necessary for the decedent to go under the store building for the "purpose of placing moving equipment thereunder."
It is further alleged in the third count of the declaration that "prior to the time plaintiff's decedent went underneath said building for the purpose of placing said moving equipment thereunder, the electric current leading into the building was disconnected at the [main] switch box, located in the wareroom in said building, so that except for the carelessness, negligence and unlawful conduct of the defendants and their servants, agents and employees, as hereinafter complained of, electricity and electric currents would not have been carried to the electric equipment in said building, where plaintiff's decedent had a lawful right so to be, and plaintiff's decedent relying upon, as he had a right so to do, that the electric current having been disconnected at the [main] switch box * * * and that there was no electricity or electric current running to the electric equipment * * * as installed by the" distributing company and the outfitting company, he, Jeffers, "went under said building * * * and was killed."
And further the third count alleges that the copper tubing with which decedent came in contact under the floor, was, by virtue of the wiring installed by the defendants, so energized that it caused decedent to be electrocuted.
It is also charged in the third count of the declaration that both the distributing company and the outfitting company "did not use all possible care", as they were required to do, in their separate installations; that the defendants connected the respective separate electrical wiring required by each in such a careless manner, and with such utter disregard of the rights of plaintiff's decedent, that after the main switch in the main switch box was disconnected, electric current continued to pass through the electric wiring to the compressor and the gas floor furnaces. In brief the declaration charges both defendants with improper wiring, and that such wiring resulted in decedent's death. Several times the declaration refers to the "main switch" and "switch box", introduced in evidence as "Plaintiff's Exhibit No. 9", hereinafter referred to as the "main switch" and the "main switch box"; and in the third count of the declaration there is a single reference to "a switch box installed by the said defendant, Dewey R. Johnson, doing business as West Virginia Distributing Co.", which switch box was introduced in evidence as "Plaintiff's Exhibit No. 10", and is hereinafter referred to as the "gray switch box." *863 The defendants having pleaded the general issue, trial was had thereon. Following the verdict for the plaintiff, the defendants made timely motions to set aside the verdict as contrary to the law and evidence.
The Chesapeake Light and Power Company, a public utility engaged in furnishing electric power and energy, had some time prior to December, 1948, made a service connection at the wareroom adjacent to the Garton storeroom, and the main switch box, containing a double circuit main switch, was installed, by whom the record does not disclose, on the inside end wall of the wareroom. This switch was wired through the right fuse, where a Romex cable, that is a cable having nonmetallic insulation, was attached, which cable provided for an electric outlet carrying electric current to lights and electrical equipment in the Garton dwelling house and store. No outlet was ever wired through the left fuse in the main switch box.
Joseph T. Stickels, a witness for the defendants, and the distributing company's employee, who had made the installations on the Garton property for the distributing company, testified concerning the manner in which the compressor, cooler, and copper tubing under the floor between the compressor and cooler were installed and wired; and Max McDaniel, the outfitting company's employee, who had installed for the outfitting company the transformers and electrically operated floor furnaces, likewise testified concerning the installation and wiring of the transformers and the electrically operated floor furnaces.
Stickels testified that he did not believe there was sufficient current available through the left unused fuse in the main switch box to take the additional load of the half horsepower unit which he was installing, so he "wired around" the main switch and wired to the "line side" thereof, that is the side of the switch next to the main entry, and in order to take the overload production to another place, he installed the gray switch box in the wareroom on the partition wall between the wareroom and the storeroom, a few feet above the compressor; that he installed a BX cable, that is an armored or metallic cable, connecting the main switch box with the gray switch box, so that the electric current was controlled by the two fuses in the gray switch box; and then the witness extended the wiring by the use of a BX cable from the load side of the switch in the gray switch box, that is the side nearest where the electric current is used, through the fuses to the lower end of the gray switch box, and thence to the compressor, which had been installed by the witness on the floor immediately below the gray switch box.
From Stickels' testimony, bearing as it does upon the installation made by the distributing company, it further appears that in the gray switch box, the lead or black wire was tied to terminal No. 1 on the line side, and the neutral or white wire was tied to terminal No. 2 on the line side; and the BX cable before it emerged through the bottom of the gray switch box was wired in the gray switch box, so that the lead or black wire was tied to terminal No. 1 on the load side of the switch, and the neutral or white wire was tied to terminal No. 2, also on the load side of the switch. This last-mentioned BX cable was connected with the compressor proper, and no ground connection, not even on the gray switch box, was installed by the distributing company, except that the BX cable, extending from the main switch box to the gray switch box, would have served to render the ground connection on the main switch box useful as a ground also for the gray switch box, were it not for the break in the armor of that cable, unless, as Doran Frame, a witness for the distributing company testified, the ground on the main switch box was broken at a place where it entered the ground near the Garton dwelling. Stickels, however, did not testify whether he had examined the ground on the main switch box, and did not explain why he did not make an independent ground connection on the gray switch box, which the record discloses would have prevented the charging of the BX cable leading from the gray switch box to the compressor, *864 which ultimately caused decedent's electrocution and death.
The copper tubing under the floor of the wareroom and storeroom was two feet, or possibly thirty inches, above the ground under the store property. Several months after the distributing company had made its installations, Stickels made two service calls to the Garton property, one of which required him to come "in direct contact with the copper tubing." Stickels testified that the copper tubing could be reached by a person only by a "kind of crawling up all the way", and that when he came in contact with the copper tubing on the occasion of the service call, he did not receive any shock from such contact.
McDaniel, who in November, 1949, a little over a year after the distributing company made its installation, had installed in the Garton property for the outfitting company the three electrically controlled gas floor furnaces, one in the Garton dwelling and two in the store building, testified that the transformers, which witness had installed in connection with the furnaces, were used to reduce the current of electricity, so that it would be available for the operation of the automatic electrical controls on the gas furnaces, that is the thermostats. The modus operandi of connecting the furnaces, according to McDaniel, was, first, the line wire was run from the transformers to the thermostats, and the transformers were thus connected with the furnaces. Then the Romex cable was inserted by McDaniel through the opening at the upper right side of the gray switch box, and a metal clamp was used to hold the cable rigid. Then the lead or black wire of the Romex cable, running from the gray switch box to the transformers, was fastened to terminal No. 1 on the line side of the block in the gray switch box, and the neutral or white wire of the Romex cable was fastened to terminal No. 2 on the line side of the block, which last-mentioned connections were made on the top of the wires already connected with the two line terminals installed a year before by the distributing company. At the time of the installation of the Romex cable, leading from the gray switch box to the transformers, McDaniel testified that the connector or clamp, which as heretofore stated, was designed to hold the cable rigid at the place it entered the gray switch box, did not pinch the insulation or create a short. McDaniel further stated that because the main switch box was some distance away from the place where the transformers were to be installed, he attached the furnace circuit in the gray switch box, but witness did not explain why he did not make any ground connection on the gray switch box.
The record discloses that when Fike's men, that is the decedent, acting as foreman, and the four men under him, bringing with them their moving equipment, arrived on the Garton premises, neither the decedent Jeffers, nor any of the four men under him, made any inquiry as to whether the electric current was on or off, and made no examination as to the electric connection between the gray switch box and the transformers and furnaces, nor did any of the men come into the Garton store. When, however, Fike's men arrived at the Garton property, John Garton, brother-in-law of Bess Garton, was on a ladder on the porch of the store, where he could be observed by Fike's men, engaged in disconnecting the feeder line running from the main entry to the dwelling house, and then to the receptacle box on the porch of the store.
Bess Garton testified that when Fike's men started to work the "power wasn't cut off. The [main] switch was pulled but the power was on." This witness further testified that "Seems that the power was on after the main switch was pulled. The [main] switch was pulled because it was pulled back in my house."
On the morning of July 11, 1950, there was considerable activity in the vicinity of the store building and the dwelling. Charles Howard Green, an employee of Chesapeake Light and Power Company, and a witness for the plaintiff, was first to arrive at the Garton property. He was there to string a new wire and to install a meter box on the lower end of the dwelling. John Garton seemed to be aiding Green to *865 some extent. John Garton testified that the store building had been constructed prior to the dwelling; that a meter had been installed on the porch of the store following the completion of the latter; and that after the dwelling was finished the electric company did not have any meters, so "they run a feeder line from the intake to the house [dwelling] to the receptable box on the porch of the store and taken the power from that, so that it all came through the same meter." This witness testified further that "I pulled the switch in order to disconnect that feeder line from the porch box. Then we would have to carry it around and across the top of the porch and connect the end of the meter that he was installing." During the dismantling of the "feeder line" from the store building, Jeffers, Fike's foreman, and the four men under him arrived at the Garton property with their moving equipment. One of the movers testified that he noticed someone on the porch with a ladder "fooling" with wires on the store building. Mrs. Bess Garton testified that she knew John Garton had pulled the main switch, because of the effect that it had on the current in the dwelling house. Gaylord Garton, son of Kenton and Bess Garton, who worked in the store and ran a truck, testified that he was late in arising, and that he got up about the time the Fike movers arrived. He stated that he knew the main switch had been "pulled" because he noticed that his electric clock had stopped earlier in the morning. He said he was in and out of the buildings, and stated that Jeffers had been dragged from under the store before he knew of the accident. This witness attempted to contact the distributing company and the outfitting company. Johnson, the owner of the distributing company, came to the Garton property after Jeffers was electrocuted, and took some pictures; but the outfitting company did not have a representative present at the time.
A number of witnesses, evidently highly skilled by reason of a wide experience in various capacities in the mechanics of electrical installations, and in the use, control and actions of electric current, examined the electrical installations involved in this action, and testified in detail as to the conditions which they found at the Garton property shortly after decedent was killed. Their testimony bears pertinently upon the question whether there is sufficient evidence in this record from which the jury could reasonably have found that both of the defendants, or either of them, were guilty of negligence in making their respective installations, which proximately caused decedent's death.
Plaintiff's witness, R. E. Perry, an electrical inspector employed by the West Virginia Inspection Bureau, who had had between fourteen and fifteen years' experience as an electrical inspector, whose duties included the inspection of electrical installations, wiring, and attachments and fixtures tied to an electric line, was sent to the Garton property on the afternoon of July 11, 1950, the day on which Jeffers was killed, by the inspection bureau at Fike's request for an inspector. Having inspected the installations, and being a highly qualified witness, Perry gave graphic testimony as to the condition in regard to the electrical installations, which he found on the Garton property on the day the inspection was made. Arriving at the Garton home, he found the two switch boxes, that is the main switch box, and the gray switch box, heretofore referred to, in the wareroom at the far end of the store building. The main switch was on the wall at the end of the store building, where the Chesapeake Light and Power Company's main entry cable entered the building; and the gray switch box was diagonally across the wareroom on the partition wall between the wareroom and the Garton storeroom. Only the right fuse of the main switch was then in use. From the right fuse there emerged, through the lower right side of the main switch box, a nonmetallic cable, which carried electric current to the lights and other appliances in the Garton dwelling house and storeroom, other than the compressor and the beer cooler, installed by the distributing company, and the transformers and the electric controls on the gas floor furnaces, installed by the outfitting company. The installation *866 for the compressor and the cooler was made by attaching to the line side on the main switch an armored cable, which emerged from the upper right side of the main switch box, and ran to the upper left side of the gray switch box, which latter switch had been installed on the partition wall of the wareroom a few feet above the compressor. On the other side of the partition wall between the wareroom and the storeroom, the beer cooler was installed in the latter room, and a copper tube, which carried the gas refrigerant between the compressor and the cooler, was installed beneath the floor of the storeroom and wareroom and underneath the partition wall. At the time of the inspection by Perry it was found that the copper tubing was electrically charged.
Perry described the main switch box as having attached to it, a "service conductor" and a "service protective ground wire", both at the bottom of the switch box; a black Romex cable, leading out of the main switch box on the right near the bottom, called a "branch circuit", and, as heretofore indicated, used for the purpose of furnishing electric service for lights in the Garton dwelling and store building, and for apparatus other than the equipment involved in this action; and a BX cable leading out of the upper right side of the main switch box, which according to the witness, "Was supposed to have been a branch circuit", which cable was connected with the gray switch, and from there, by the use of the two fuses in the gray switch box, the current was carried by a BX cable, which emerged from the bottom of the gray switch box, to the compressor on the floor of the wareroom immediately below the gray switch box. Perry testified that the two fuses in the gray switch box were to protect the compressor circuits from overcurrent or overload, and if there was an overload or overcurrent or short circuit and the wire is "properly" connected, the fuses will burn out; but the way the Romex cable, evidently the cable leading to the transformers, was connected on the line side of the switch in the gray switch box, the fuse plugs would not be affected at all "Because the current wasn't passing through the fuses." Perry's inspection disclosed that the Romex cable, evidently meaning the cable installed by the outfitting company, led from the upper right side of the gray switch box to the transformers. Witness testified that because this cable was attached in the gray switch box on the line side of the switch, a short at any place in any of the wiring leading to the compressor or to the furnaces would have no effect on the two fuses in the gray switch box. Perry's inspection further disclosed that the gray switch box was charged with electricity caused by a ground on a live wire somewhere on the extension to the circuit.
Perry testified that the wiring installed by the distributing company was not properly installed, so that a short therein would electrically energize the gray switch box, all of the metal parts in the compressor system, and the copper tubing. The witness further testified that there was a break in the armored cable between the two switch boxes, and if the armored cable had not been broken, there would have been a fire, "but with the armor broken, there was nothing to do but for the current to go from the ground that is in the box there or some whereI said somewhere in the circuit."
Plaintiff's witness, Otto Mundy, an electrical contractor, who had been engaged in electrical contracting work all over the State of West Virginia, and in some parts of Ohio and Kentucky, made an inspection at Fike's request of the electrical installations involved in this case; and found that except for the Romex cable emerging from the lower right side of the main switch box, servicing lights and appliances on the load side of the main switch, all the rest of the wiring he inspected concerned the compressor, the transformers and the furnaces; that the BX cable emerging from the upper right corner of the main switch box was the feeder to the gray switch box, which took care of the compressor and the furnaces, and was connected on the line side of the main switch, so that if the main switch was "pulled and open", the current would continue to come in on the cable leading to the gray switch box. At the time of the inspection *867 this BX, or metallic, cable was broken, and witness found that the Romex, or black nonmetallic, cable, emerging from the right corner of the gray switch box, was on the line side of the switch in the gray switch box, and if that switch was "opened and off", the current would still go through the Romex cable to the transformers. In this latter cable the witness discovered a ground in the gray switch box itself. This ground was caused by a sharp edge of the connector cutting into the black or lead wire of the cable, resulting in the electrical charging of the gray switch box, the compressor, the tubing, and everything metal connected therewith; but the break in the armor of the BX cable between the two switch boxes would serve to keep the charge from going back to the main switch box. Witness, over objection, testified in the negative to the inquiry, "Should any wire carrying current be carried around the load side of a main switch to the line side?"
On cross-examination Mundy testified that if the switch in the gray switch box "was thrown or were open", no electric current would go to the compressor, and that if the feeder cable, that is the Romex cable installed by the outfitting company, had not been installed, there would have been no short in the gray switch box.
Doran Frame, an experienced electrical contractor called on behalf of the distributing company, testified that he had inspected the electrical installations involved in this action on the day following decedent's electrocution, and that he found a ground of the type which is driven into the ground along side the Garton house, consisting of a wire attached to a metal stake. This witness testified that the ground had been broken, and if it had not been broken and the overcharge had gone into the ground "There wouldn't have been any charge on the refrigeration coils. It would have blown the fuse, or broken down the circuit", and that decedent would not have been killed; and further that if there was a short in the gray switch box and the "cable leading from this gray switch to the main switch had been wired to the ground side of the main switch, then a fuse would have been blown", and decedent would not have been killed.
A necessary implication from this witness's testimony is that if the gray switch box, which had been energized by the short in the Romex cable installed by the outfitting company, had been served by a ground, that is either a ground wire on the main switch box running to the driven ground, or by an independent ground connection on the gray switch box, the BX cable running from the gray switch box to the compressor would not have been electrically energized, so as to cause the copper tubing between the compressor and the cooler to become electrically charged.
On direct examination Frame testified that normally an armor covered cable carries a ground, and that the splice in the armor of the BX cable between the two switches, resulting in a separation of the armor, caused the breaking of the "outside ground." The witness's testimony in this regard is confusing, in that it is not clear whether the witness was discussing the break in the armor of the BX cable between the two switches as being in addition to the break in the ground connection outside the building, because shortly before giving this testimony the witness was asked on direct examination: "What, if anything, had happened to that ground", to which he replied, "It had been broken." And then, more specifically, he was asked, "Now, Mr. Frame, was that the ground which was just on the upper side of the store building and adjacent to the fence", to which the witness answered, "Yes."
As the inspection of the driven ground was made by the witness Frame on the day after decedent was electrocuted, it may be important to note that Mrs. Garton testified that Fike's men, in raising the store building in an effort to move the same, broke the driven ground prior to decedent's electrocution.
A summary of the testimony of the witnesses, bearing on the condition of the two switch boxes, the main switch box on the *868 inside of the end wall of the store building, and the gray switch box, installed by the distributing company above the compressor on the partition wall in the store building, furnishes the following description, which bears directly on the crucial question whether decedent was electrocuted as the result of either or both of the defendants being guilty of negligence, which proximately caused decedent's death.
The main switch box, containing what may be designated as the main or master switch, is served by a large nonmetallic entry cable, leading into the bottom end of the box, and installed ahead of the fuses and main switch; to the left of this entry cable there is a small uninsulated ground cable leading from the bottom end of the main switch box to a point where a ground was established; a Romex cable, that is a cable containing a nonmetallic cover, leads from the load side of the main switch in the main switch box, that is the side of the switch where use is made of the electric current, through the right side of the main switch box, a short distance from the lower end thereof, and thence to outlets in the dwelling house and store, such as lights and appliances, which Romex cable is attached to only the right fuse of the two fuses in the main switch box, the left fuse being unconnected and unused; from the upper right corner of the main switch box, a BX cable, that is a metallic or armored cable, leads from the line side of the main switch in the main switch box, the line side of the switch being where the main or feeder line comes into the building, uncontrolled by the switch and fuses, across the storage room where the BX cable enters the gray switch box at the upper left side thereof; thence the electric current is served and controlled by the switch and fuses in the gray switch box; and then from the load side of the switch in the gray switch box a BX or metallic or armored cable, emerges from the bottom end of the gray switch box to the compressor immediately below on the floor of the wareroom.
From the line side of the switch in the gray switch box, and emerging from the upper right side of the box, is a Romex or nonmetallic insulated cable, which leads to the transformers, which in turn reduce the electric current suitable for the operation of the thermostats or gas regulators on the gas furnaces.
As heretofore stated, the gray switch box, including the switch and the two fuses therein, as well as the BX or metallic cable, one between the two switch boxes, and the other leading from the load side of the switch in the gray switch box to the compressor, were installed by the distributing company, and the Romex or nonmetallic cable, leading from the line side of the switch in the gray switch box to the transformers, was installed by the outfitting company.
From the foregoing description of the electrical installations made by the two defendants, respectively, it appears that if the main switch in the main switch box was pulled, the electric current would be cut off the lights and appliances in the dwelling and store building, other than the compressor, cooler, transformers and furnaces; and if the switch in the gray switch box was pulled or open the electric current, in the absence of a ground in that switch box, which would run normally to the compressor, if the switch was closed, would be cut off.
An inspection of the installations which the various witnesses made after decedent was electrocuted disclosed that the wiring on the BX or metallic cable, leading between the two switches was spliced, but at the point of splicing the armor of the cable was broken and separated.
The closing or opening in the main switch in the main switch box would not affect the flow of the electric current to the line side of the switch in the gray switch box, and if the switch in the gray switch box was closed, and there was no ground in that switch box, and no break in the armor of the BX cable, leading between the two switch boxes, the electric current would pass normally through the switch and fuses in the gray switch box to the compressor, but whether the switch in the *869 gray switch box was open or closed, the electric current would flow normally, in the absence of a ground, from the line side of the switch in the gray switch box, through the Romex or nonmetallic cable, installed by the outfitting company, to the transformers, and thence to the thermostats or gas regulators on the gas furnaces.
The record contains credible evidence to the effect that there was a short or ground in the Romex or nonmetallic cable, installed by the outfitting company, within the gray switch box itself, at or near where the cable emerged from the gray switch box, and led to the transformers, which ground was caused by the cutting of the insulation of the cable by improper clamping of the cable, and served to "charge" the metallic parts of the gray switch box, the BX cable leading to the compressor, the compressor, the cooler, the copper tubing, between the compressor and the cooler, and the armor of the cable between the two switch boxes to the point where the armor was broken. The separation in the armor of the BX cable between the two switch boxes was caused by the distributing company having an insufficient single length of cable to cover the distance between the two switch boxes, so that the installation was made with two lesser lengths of cable, one being installed from the main switch box to the point where the wiring was spliced, and the other from the gray switch box to that point.
As the evidence bearing on the pertinent factual questions raised by this record is credible and probative, it was within the province of the jury, in arriving at its verdict, to believe from a preponderance of the evidence adduced on behalf of the plaintiff and both defendants that decedent would not have been electrocuted by coming in contact with the electrically charged copper tubing running between the compressor and the cooler installed by the distributing company: (1) If the distributing company had not circumvented the unused left fuse in the main switch box, and had attached thereto the BX or metallic cable, leading from the main switch to the switch in the gray switch box; or (2) if, in the event, as the distributing company's evidence tends to show, sufficient power could not be obtained for the operation of the compressor by the use of the unused fuse in the main switch box, the distributing company had substituted a larger fuse box and properly grounded the same; or (3) if the distributing company had installed an unbroken BX or metallic cable between the two switch boxes, the driven ground connected with the main switch box would have been utilized, provided that the ground had not been broken, as the distributing company's witness Doran Frame testified, and the charge, created by the short in the lead wire of the Romex cable installed by the outfitting company, which ultimately resulted in electrically energizing the copper tubing between the two switch boxes, would have been dissipated, and decedent would not have been electrocuted thereby; or (4) if the distributing company had adequately grounded the gray switch box by the use of a separate and independent ground; or (5) if the distributing company had informed the Gartons that it had attached the BX or metallic or armored cable, leading from the main switch box to the gray switch box on the line side of the switch in the main switch box, so that the Gartons would have known that the opening or pulling of the main switch in the main switch box would not serve to cut the electric current flowing to the gray switch box, and then through the fuses and the switch in the gray switch box to the compressor.
Likewise the evidence portrayed by this record would have justified the jury in believing from a preponderance of the evidence that the decedent would not have been electrocuted: (1) If the outfitting company in its installation of the electrical apparatus required for servicing the transformers and the electric thermostats or gas regulators, which it had installed, had not circumvented the switches and fuses in both switch boxes, and in particular the unused fuse in the main switch box; or (2) if the outfitting company had substituted a larger and properly grounded switch box for the main switch box, or had installed *870 a separate switch box, properly grounded and containing ample fuses; or (3) if the outfitting company had firmly installed the Romex or nonmetallic cable, leading from the line side of the switch in the gray switch box to the transformers, and had used a proper connector or clamp, so that a short would not have been caused in the cable at or near the place where it emerged from the gray switch box; or (4) if the outfitting company had before making its electrical installations inspected both switch boxes, so as to become informed that the electric current running through the BX cable between the two switch boxes was attached in the main switch box on the line side of the main switch, so that the opening or pulling of the main switch would not serve to cut the electric current flowing into the gray switch box, and had so informed the Gartons.
The evidence in this case, bearing on the question whether either or both of the defendants was negligent in the foregoing particulars, which negligence concurred and was the proximate cause of decedent's death, is sufficient, in our opinion, to sustain the verdict in favor of plaintiff and against both defendants. In so holding, we are guided by the rule well established in our practice, which governs the appraisal of every verdict of a jury that: "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Pt. 1 syl., Fielder, v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115. See also State ex rel. Bumgarner v. Sims, W.Va., 79 S.E.2d 277; Spence v. Browning Motor Freight Lines, W.Va., 77 S.E.2d 806, 809; Frampton v. Consolidated Bus Lines, 134 W.Va. 815, 823, 62 S.E.2d 126; Laphew v. Consolidated Bus Lines, 133 W.Va. 291, 294, 55 S.E.2d 881; Billy v. Powell, 133 W.Va. 278, 282, 55 S.E.2d 889; and Boyce v. Black, 123 W.Va. 234, pt. 1 syl., 15 S.E.2d 588.
The very fact that the decedent was electrocuted by coming in contact with the copper tubing installed for the purpose of conducting refrigerant gas from the compressor to the cooler, which was not designed for conducting electric current, shows beyond peradventure that decedent's death ensued as a result of some defect in the installation of the electrical installations. The fact that the distributing company installed in a defective manner the electrical apparatus required for servicing the compressor in 1948, and the outfitting company carelessly installed the electrical equipment for the purpose of servicing the thermostats or gas regulators on the furnaces in 1949, does not of itself render the negligent act of the distributing company a remote cause, and the act nearly a year later in 1949 of the outfitting company in installing its electrical equipment the proximate cause of decedent's death. We are aware that the definitions of "proximate cause" formulated by the courts are many and variant, see 34 Words and Phrases, pages 748, 749; Black's Law Dictionary, 4th Ed., 1391; but running through all the cases in this jurisdiction is the rationale that negligence of itself is not "actionable negligence", unless there is sufficient evidence from which the jury may find by a preponderance thereof that such negligence was the proximate cause of the injury or death. Webb v. Sessler, 135 W.Va. 341, 63 S.E.2d 65; Fleming v. McMillan, 125 W.Va. 356, 26 S.E.2d 8; Donald v. Long Branch Coal Co., 86 W.Va. 249, 103 S.E. 55; and negligence to constitute the proximate cause of the injury or death of another must be such that injury or death could reasonably have been anticipated by an ordinarily prudent person. State ex rel. Davis Trust Co., v. Sims, 130 W.Va. 623, 46 S.E.2d 90; Fields v. Director General of Railroads, 86 W.Va. 707, 104 S.E. 767.
Though this Court, in dealing with the question whether an alleged act of negligence is the sole proximate cause of *871 the alleged wrongful death or injury complained of, has held that the proximate cause of an injury is the last negligent act contributing thereto without which such injury would not have occurred, Schwartz v. Shull, 45 W.Va. 405, 31 S.E. 914; Divita v. Atlantic Trucking Co., 129 W.Va. 267, 40 S.E.2d 324, it is settled in this jurisdiction that where the alleged injury or wrongful death results from the concurrent negligence of two or more persons, though acting independently of each other, which combined resulted in the injury to or death of a third person, recovery may be had against either or all. Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28; Day v. Louisville Coal & Coke Co., 60 W. Va. 27, 53 S.E. 776, 10 L.R.A.,N.S., 167. And, more specifically, "Where separate and distinct negligent acts of two or more persons continue unbroken to the instant of an injury, contributing directly and immediately thereto and constituting the efficient cause thereof, such acts constitute the sole proximate cause of the injury." Pt. 1 syl., Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87. Accordant: American Telephone & Telegraph Co. v. Ohio Valley Sand Co., 131 W.Va. 736, 50 S.E.2d 884; Tawney v. Kirkhart, 130 W. Va. 550, 44 S.E.2d 634; Gilkerson v. Baltimore & Ohio Railroad Co., 129 W.Va. 649, 41 S.E.2d 188; Sigmon v. Mundy, 125 W. Va. 591, 25 S.E.2d 636. See generally 65 C.J., Negligence, Section 110, and Restatement of Torts, Section 882.
In the instant case it may be said that the alleged negligent installation of the Romex cable in the gray switch box on the line side or ahead of the switch was the efficient cause of decedent's death, and in point of time was the last negligent act, without which decedent's death would not have ensued. Certainly, the jury was justified in finding, as it did by its verdict, that plaintiff's death was proximately caused by the alleged negligence of the outfitting company, which caused a short or ground in the wire, which, in turn, caused the electric current flowing through the various metal media to charge the copper tubing
between the compressor and the cooler. But if, in the first instance, the BX cable had been installed by the distributing company in the main switch box so that it would be properly controlled by the switch therein and the unused left fuse, or if the armor of that cable had been unbroken, so as to permit the ground to the main switch box to function, provided the driven ground had not been broken, or a new fuse box properly grounded had been installed, or the gray switch box had been grounded, or another main switch box, properly grounded, had been substituted for the main switch box, the copper tubing between the compressor and the cooler would not have been electrically charged, and decedent's contact therewith would not have resulted in his death, at least the jury could have so found.
In any event if the Gartons had been informed by either, or both, of the defendants that the opening or pulling of the main switch would not serve to cut off the gray switch box, when the decedent Jeffers and the four men under him were seen by John Garton and Mrs. Bess Garton as they arrived at the Garton property and proceeded to prepare for the moving of the store building; and by Gaylord Garton, son of the owners of the store building and dwelling, who had slept late and was getting up about the time the Fike movers arrived. In such event the Gartons could have warned decedent and those under him that the pulling of the main switch would not cut the electric current to the compressor and transformers. Gaylord Garton testified that he knew the main switch had been pulled because he noticed that his electric clock had stopped earlier in the morning. Mrs. Garton testified that she knew John Garton had pulled the switch, because of the effect it had on the electric current in the dwelling house, and John Garton said he pulled the switch in order to disconnect the feeder line from the porch box. These witnesses evidently thought that the pulling of the main switch would serve to protect the Fike movers, and evidently the movers assumed, at least *872 they would have the right so to assume, that the Gartons would not stand by in silence and allow them to move a building in which electrical equipment and appliances were installed and operating without informing them of that situation. At least one of the movers saw John Garton on the porch "fooling" with the wiring on the store building, which of itself would indicate that somehow, at some time theretofore, a main switch controlling the main entry into the store building had been pulled.
From the foregoing we are of opinion that the evidence, bearing on the questions of negligence and proximate cause, is sufficient from which the jury could properly determine that the respective installations made by the distributing company and the outfitting company are negligent acts, which, though separate and distinct in themselves, continued by an unbroken sequence to the point of decedent's death, and, in the language in point 1 of the syllabus of Brewer v. Appalachian Constructors, Inc., supra, "contributing directly and immediately thereto and constituting the efficient cause thereof, such acts constitute the sole proximate cause of" decedent's death; unless, as set forth in point II of the brief filed by counsel for the outfitting company, the evidence established exclusively that the outfitting company's installation was tampered with by a third party, subsequent to the installation of its equipment and prior to the accident, so as to discharge any possible liability on the part of the outfitting company for decedent's death.
This postulate of defense is based upon the testimony of James W. Arthur, called as a witness in behalf of the outfitting company, who, after plaintiff's witnesses, Perry and Mundy, had testified that their examination of the electrical wiring shortly after decedent was electrocuted, showed that a short circuit or ground was present which energized the copper tubing, thus causing decedent's death, and after plaintiff had introduced evidence that the condition of the switch boxes, including the alleged defective connection to the transformers, which electrical equipment was exhibited to the jury at the trial, was unchanged from the time the equipment was taken from the Garton store immediately after decedent was electrocuted until the time of the trial, the gray switch box was opened in the presence of the jury and at the request of counsel for the outfitting company, which disclosed to the jury that the electric wiring composing the connection of the Romex cable, made by the outfitting company in the gray switch box, was completely severed.
After the opening of the gray switch box in the presence of the jury had disclosed that the connection of the Romex cable, installed by the outfitting company, had been broken, defendants' witness, Max McDaniel, was recalled as a witness in behalf of the outfitting company, and testified concerning the Romex cable installed by the outfitting company that, "The main wire is broken in two"; and that under normal conditions the three furnace units, which witness had installed as an employee of the outfitting company, would not have operated with the wire "broken in two". Then plaintiff's witness, Gaylord Garton, on cross-examination testified that the furnaces had operated and had been used in the spring of 1950 immediately prior to decedent's death. After the furnaces had been installed, the outfitting company's employee, Max McDaniel, had cleaned the furnace burners in the fall of 1949, which was the last work done on the furnaces by the outfitting company; and in the fall of 1949, after the furnaces had been installed and the outfitting company had cleaned the gas burners, Gaylord Garton of his own volition disconnected the wiring on one of the furnaces, and took out a transformer installed in connection with that furnace. It is argued that this evidence establishes without dispute that at the time decedent was electrocuted the Romex cable installed by the outfitting company had been broken, and thereby a short was caused, and as the break in the wire *873 was long after the outfitting company had done any work on the installation, counsel for the outfitting company assert that the "sole, direct and proximate cause of the accident was the act of some third party in breaking the wire." This, in all deference to able counsel who have made this assertion, is a non sequitur. Gaylord Garton in disconnecting the wiring on one of the furnaces was not working at or near the place where the Romex cable installed by the outfitting company was connected on the line side of the switch in the gray switch box, and while the exhibition of the open switch in the gray switch box to the jury disclosed that the wire had been completely severed, the gray switch box was opened in the presence of the jury long after plaintiff's witnesses Perry and Mundy had inspected the electrical equipment at the Garton property, shortly after decedent was electrocuted, and their testimony is clearly to the effect that the Romex cable was not completely severed at or in the gray switch box, but a short was created by the breaking of the nonmetallic insulation and the exposure of the lead wire, which, coming in contact with the metal of the gray switch box, caused that box to become energized with electricity, which, through connected metallic media, energized the tube between the compressor and cooler, which in turn caused decedent to be electrocuted. The question posed by ground of error II in the outfitting company's brief is, in our opinion, simply one to be considered by the jury, along with the other evidence in the case, and enters into the question whether the defendants were guilty of actionable negligence, which, after all is said and done, is one for jury determination.
The respective relationships between the owners of the property, Kenton and Bess Garton, and the distributing company and the outfitting company present an interesting question, the solution of which is necessary to the decision of this case. That both the distributing company and the outfitting company were independent contractors appears clearly from this record. Each had contracted with the property owners the obligation to install in the Garton property their respective electrical apparatus, and the electrical equipment necessary for the operation thereof. Though the defendant distributing company contracted with the owners that it would install a compressor in the wareroom and a beer cooler in the storeroom, and the outfitting company contracted with the owners that it would install at specified places in the dwelling and in the store building three electrically regulated gas furnaces, there is nothing in this record to indicate that the owners had any right to control the defendants in their respective installations. If the owners had the right to control, as distinguished from the exercise thereof, the owners, as well as the defendants, would be liable under the doctrine of respondeat superior. Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, pts. 1 and 2 syl., 191 S.E. 558, 560. But as this record discloses that the installations were to be made by the defendants free from all control on the part of the owners, the defendants are independent contractors. In point 2 of the syllabus of Meyn v. Dulaney-Miller Auto Co., supra, this Court held: "The right to control and not the exercise of control, is the test" of the relation between one having work done and the workmen doing the work. Restatement, 1 Agency, Section 2(3); Rogers v. Boyers, 114 W.Va. 107, syl., 170 S.E. 905; Greaser v. Appaline Oil Co., 109 W.Va. 396, 155 S.E. 170.
On the basis that the defendants are independent contractors their counsel rely upon the general rule as stated in 27 Am.Jur., Independent Contractors, Section 55, that, "an independent contractor is not liable for injuries occurring to a third person after the contractor has completed the work and turned it over to the owner or employer and it has been accepted by him, even though the injury results from the contractor's failure properly to carry out his contract." On behalf of the defendant outfitting company it is asserted that the work contracted to be performed *874 by it having been finished and accepted by the owner, the owner is substituted as the responsible party for any existing defects. The general rule thus providing for the substitution of liability where the work contracted for has been completed by the independent contractor and accepted by the contractee is supported by the great weight of authority. See the numerous cases cited under note 1, 27 Am.Jur., Independent Contractors, Section 55, and the recent annotation to Hale v. Depaoli, 33 Cal. 2d 228, 201 P.2d 1, 13 A.L.R. 2d 183, annotation 191 to 252, inclusive.
There are, however, a number of exceptions to the general rule that an independent contractor's liability is substituted for that of the contractee where the work has been finished and accepted by the contractee. The several exceptions to the general rule are stated succinctly in 27 Am. Jur., Independent Contractors, Section 56, as: "(1) Where a manufacturer or vendor commits an act of negligence which is imminently dangerous to human life and health, in the preparation or sale of articles, such as foods and poisons, the primary use of which is to serve, destroy, or affect life and health; (2) where there is negligence on the part of an owner who expressly or impliedly invites third parties to use defective machines or instruments manufactured or furnished by him; (3) where a manufacturer or vendor, without giving notice of its character and qualities, supplies or delivers to another a machine or article which he knows to be imminently dangerous to the life and limbs of anyone who may use it for the purpose for which it is intended; (4) where the manufacturer or constructor has full knowledge of the defects rendering the article or structure dangerous, but wilfully conceals the same; and (5) where the article or structure is a nuisance per se, in which case negligence is immaterial. In other words, a right of action against an independent contractor for injuries to third persons from defects in completed works may be predicated upon the ground that the finished work is a nuisance, or that there has been fraud, misrepresentation, an implied warranty, or an implied invitation. Furthermore, a contractor may be liable where he turns over work which is inherently or intrinsically dangerous, or, in other words, where the work is turned over in a manner so negligently defective as to be imminently dangerous to third persons, or where he knows of defective conditions of the work, which may not in itself be inherently dangerous; and where he has knowledge that the article in question is to be used by the person subsequently injured." (Italics supplied). See also Humphries v. Black Betsy Consolidated Coal Co., 115 W.Va. 768, pt. 1 syl., 178 S.E. 273, in which this Court quoted at pages 772, and 275 respectively, evidently with approval, the rule stated in 14 R.C.L., page 107, that: "The general rule, however, is subject to some recognized limitations which continue the liability of the contractor even after he has parted with his control over the work; as for instance, where the finished work is a nuisance, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to a third person." See generally to the same effect Clemens v. Benzinger, 211 A.D. 586, 207 N.Y.S. 539; Colbert v. Holland Furnace Co., 241 Ill.App. 583; Id., 333 Ill. 78, 164 N.E. 162, 60 A.L.R. 353; Berg v. Otis Elevator Co., 64 Utah 518, 231 P. 832; Sutton v. Otis Elevator Co., 68 Utah 85, 249 P. 437; Smith v. St. Joseph Ry. Light, Heat & Power Co., 310 Mo. 469, 276 S.W. 607.
There is no evidence in this record that the Gartons had knowledge that the distributing company had wired around the main switch and to the line side thereof; and that the outfitting company had circumvented both the main switch and the switch in the gray switch box, and had wired to the line side of the latter switch; and certainly the Gartons had no knowledge, or means of knowledge, that the outfitting company had in the first instance installed the Romex cable leading to the transformers, in such an insecure manner that eventually a short would be created in the *875 gray switch box. That it was improper to wire on the line side of an electric switch is established in this record by the great weight of the evidence; and if the installations by the defendants had been properly made there would, in the case of the outfitting company, have been no short in its Romex cable in the first instance, and in the case of both defendants the fuses would have blown and the circuit which led to decedent's electrocution would have been disconnected, or when the main switch was thrown the electric current would have been completely cut off and decedent's death would not have ensued. Under the facts portrayed by this record, we hold that the defendants, though independent contractors, have no defense in the independent contractor-contractee relationship. In this regard we adopt the rule stated in the italicized portions of the quotation from 27 Am. Jur., Section 56; and, more specifically, the language of the Supreme Court of Utah in the case of Berg v. Otis Elevator Co., supra, 64 Utah at page 525, 231 P. at page 835, that:
"As well settled and as potent as the rule itself are certain exceptions, one of which is that the contractor continues liable where the work is turned over by him in a manner so negligently defective as to be imminently dangerous to third persons. * * *
"The decided weight of authority supports the proposition that when an independent contractor has done work on an instrumentality and by his work makes the instrumentality imminently dangerous to those he knew would use it, he remains liable, even after the completion of his work and its acceptance by the contractee, to third parties injured as the result of his negligence if the contractor knew or in view of the peculiar circumstances of the case should have known the dangerous condition by him created, and the contractee had no knowledge of the dangerous condition or defect which was so concealed that reasonable inspection by the contractee would not have discovered it. * * *"
The outfitting company in its brief assigns as ground of error III the giving of plaintiff's instruction No. 1, asserting that the said instruction improperly invokes the doctrine of res ipsa loquitur. This instruction reads: "The Court further instructs the jury, if you believe from all the evidence in this case, plaintiff's decedent was killed as the result of coming in contact with a copper tube, which copper tube was charged with electricity as a result of an improperly installed beer cooler and compressor and gas floor furnaces and which were improperly wired and carrying electric current; and if you further believe from all the evidence in this case, that in ordinary and careful installation of such equipment, electricity is not found on copper tubes, part of such equipment, nor are the same charged with electric current, like that which killed the plaintiff's decedent, and if you further believe from all the evidence in this case, the defendants or either of them used improper care in the installation of such beer cooler and compressor and floor furnaces, which was the proximate cause of decedent's death, then the defendants are called upon to offer some reasonable explanation of the occurrence, and if such explanation is not furnished, the circumstances itself may afford reasonable evidence that plaintiff's decedent was killed by the negligence of the defendants, and your verdict may be for the plaintiff." At the trial counsel for the distributing company and for the outfitting company, respectively, objected to the giving of this instruction on the broad ground that there is no evidence in the case which will support a finding that the electrical equipment was improperly or negligently installed. We, however, have heretofore in this opinion addressed ourselves to this question.
Counsel for the outfitting company assert specifically that the trial court erred in giving plaintiff's instruction No. 1 because (1) the instruction is based upon the doctrine of res ipsa loquitur, which doctrine is not applicable to the defendant outfitting *876 company; and (2) the instruction ignores the defense of contributory negligence on the part of the decedent.
If plaintiff's instruction No. 1 invokes the doctrine of res ipsa loquitur, the giving of it would have been error, as the doctrine of res ipsa loquitur implies that the instrumentality, the negligent maintenance, operation or installation of which is alleged to have caused the injury complained of, was directly under the control of a defendant charged with liability on the basis of the doctrine, or through an agent or the defendant's agent or employee; and this record discloses that the defendants having completed their respective installations, whatever control the defendants had during the process of installing the equipment had ceased with the acceptance thereof by the Gartons. Jankey v. Hope Natural Gas Co., 98 W.Va. 412, 127 S.E. 199; Laurent v. United Fuel Gas Co., 101 W.Va. 499, 133 S.E. 116, pt. 1 syl.; Wright v. Valan, 130 W. Va. 466, 43 S.E.2d 364; and pt. 2 syl., Pope v. Edward M. Rude Carrier Corporation, W.Va., 75 S.E.2d 584. In point 3 of the syllabus of Bice v. Wheeling Electric Co., 62 W.Va. 685, 686, 59 S.E. 626, the doctrine of res ipsa loquitur is stated: "Where the agency causing an injury is under the management and control of the defendant, and the injury is such as in the ordinary course of things does not occur if those having such management and control use proper care, it affords reasonable evidence, in absence of explanation by the defendant, that the injury resulted from negligence, and the rule of res ipsa loquitur applies."
Plaintiff's instruction No. 1 presents to the jury the factual question of proved negligence, as distinguished from the inference of negligence that the jury may draw on the basis of the doctrine of res ipsa loquitur. The instruction expressly told the jury that "if you believe from all the evidence in this case, plaintiff's decedent was killed as the result of coming in contact with a copper tube, which copper tube was charged with electricity", as a result of the improper installation of the beer cooler, the compressor and the gas floor furnaces, and that "if you further believe from all the evidence in this case, the defendants or either of them used improper care in the installation of such beer cooler and compressor and floor furnaces, which was the proximate cause of decedent's death, then the defendants are called upon to offer some reasonable explanation of the occurrence, and if such explanation is not furnished, the circumstances itself may afford reasonable evidence that plaintiff's decedent was killed by the negligence of the defendants, and your verdict may be for the plaintiff." The last-quoted part of the instruction is inaptly included in the instruction. Its inclusion, however, does not render the instruction prejudicial error, because it favors the defendants more than the plaintiff. We say this for the reason that the instruction tells the jury that if it further believes from all the evidence that "the defendants or either of them used improper care in the installation of such beer cooler and compressor and floor furnaces, which was the proximate cause of decedent's death", the jury may draw or not draw an inference of negligence based upon the absence of a reasonable explanation of the occurrence; whereas upon the hypothesis as to the jury's belief stated in plaintiff's instruction No. 1, the plaintiff would be entitled to a verdict in his favor.
The second ground of error assigned by the outfitting company in its brief to the giving of plaintiff's instruction No. 1 is that the instruction ignores the defense of contributory negligence on the part of the decedent. This ground of objection is without substantial merit, for the reason that this record does not contain any probative evidence from which the jury could find that plaintiff's decedent was guilty of contributory negligence, which contributed to his death. When decedent arrived at the Garton premises, John Garton was in plain view of decedent, disconnecting the feeder wire on the porch of the store. This of itself would permit decedent to believe that the main switch had been pulled, which served to cut off the electric current; and, even if decedent did not entertain such belief, he could not by any stretch of imagination *877 be deemed to have been guilty of contributory negligence in coming in contact, as he was required to do as disclosed by the testimony of plaintiff's witness, R. E. Perry, an electrical inspector employed by the West Virginia Inspection Bureau, for the reason that it would be apparent to decedent, and for that matter to any one else who observed the copper tubing running between the compressor and the cooler, that the tubing was designed to carry refrigerant gas, and, therefore, in the ordinary course of events would not be electrically charged. The rule, therefore, stated in point 5 of the syllabus of Skaff v. Dodd, 130 W.Va. 549, 44 S.E.2d 421, and the cases cited in that point of the syllabus of the Skaff case, is inapplicable.
The outfitting company assigns as error the trial court's refusal to give defendants' instructions Nos. 6 and 7 (as amended), and the distributing company assigns as error the trial court's refusal to give defendants' instructions Nos. 6 and 7 (as amended), and 8.
Defendants' instruction No. 6 instructed the jury that after defendants' equipment had been installed, the installations became the property of the Gartons, and thereafter there was no duty upon the defendants, or either of them, to keep "said equipment in good repair other than as may be required under such warranties as may have been contracted at the time of the sale"; and that the defendants were not liable for any condition or hazard which may have developed "after the respective installations and which may have contributed to the death of Roy Jeffers." The vice in the instruction is that the instruction ignores the exceptions to the general rule that an independent contractor is not liable for the injury to or death of a third party, after the work contracted for has been completed and turned over to the owner or contractee, and accepted by him, though the injury results from the contractor's failure to carry out his contract properly, which exception has been heretofore stated. See generally 27 Am.Jur., Independent Contractors, Section 56, heretofore cited in this opinion. And as the record discloses that the decedent's death, if it was the result of wrongdoing on the part of anyone, was caused by the original installations in an improper manner by the defendants of their respective electrical installations, and not by reason of "any condition or hazard which may have developed after the [defendants'] respective installations", the instruction is inapplicable to this case.
Though the short in the Romex cable installed by the outfitting company evidently occurred after the original installation, decedent would not have been electrocuted as a result thereof, if the installations by the defendants had not been improperly and negligently made. It was the inadequacy of the defendant outfitting company's installation in the first instance of the Romex cable, leading from the gray switch box to the transformers, which created the short, and also in the first instance it was the inadequacy of the defendants' respective installations to take care of the short created by the pinching or cutting of the outfitting company's Romex cable, which, under our holding, the jury could have found, as it did by its verdict, was the proximate cause of decedent's death.
The trial court, in our opinion, did not err in refusing to give defendants' instruction No. 7, as amended. This instruction told the jury that they should find for the defendants, if the jury should believe "that the destruction of said ground wire [the driven ground wire along side of the Garton house] was the proximate cause of the death of the deceased." This instruction ignores the postulate that, under our holding, the jury may find that the negligence and carelessness of the defendants in making their respective installations on the Garton property was the proximate cause of decedent's death. It was, as heretofore indicated, the inadequacy of defendants' respective installations in the first instance which caused the gray switch box, the BX cable between the two switch boxes to the point where the armor of the cable was severed, the BX cable, leading from the load side of the switch and fuses in the *878 gray switch box, to the compressor and metal parts of the compressor itself, and the copper tubing to be charged, and was the efficient and proximate cause of decedent's death. As at the time Fike's men had broken the driven ground, the ground had in the first instance been rendered useless to serve the gray switch box by reason of the negligent act of the distributing company in installing the BX cable between the two switch boxes, the armor of which cable was broken, the breaking of the driven ground by Fike's men could not be the proximate or a contributing cause of decedent's death.
Finally, we are of the opinion that the trial court did not err, as defendant distributing company asserts, in refusing to give defendants' instruction No. 8. This instruction is so framed that it told the jury that once the compressor, the beer cooler, and the copper tubing had been installed, it was unforeseeable that it would be necessary to service the equipment installed by the distributing company, and in particular the copper tubing itself. It is to be noted that Doran Frame, the distributing company's witness, testified that on making a service call to the Garton property, it became necessary for him, as he did, to use the language contained in defendants' instruction No. 8, "crawl under the store building in question and come in contact with the copper tubing in question." As held in point 4 of the syllabus of Matthews v. Cumberland & Allegheny Gas Co., W.Va., 77 S.E.2d 180, 182: "One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, * * *."
For the foregoing reasons the judgment of the Circuit Court of Kanawha County in refusing as plainly right a writ of error to the judgment of the Court of Common Pleas of Kanawha County, and the judgment of the Court of Common Pleas of Kanawha County, based on the verdict of the jury, are affirmed.
Affirmed.
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600 N.W.2d 500 (1999)
8 Neb. Ct. App. 684
STATE of Nebraska, appellee,
v.
Brandy L. WERNER, appellant.
No. A-99-036.
Court of Appeals of Nebraska.
September 21, 1999.
*502 Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott, Kearney, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson, Lincoln, for appellee.
MUES and CARLSON, Judges, and BLUE, District Judge, Retired.
MUES, Judge.
INTRODUCTION
Brandy L. Werner was convicted of driving under the influence of alcoholic *503 liquor (DUI). At an enhancement hearing, held several months later, the State offered evidence of two prior DUI convictions. Both convictions resulted from guilty pleas. The county court expressed doubts as to whether one of the guilty pleas had been given knowingly, understandingly, intelligently, and voluntarily and refused to consider it for purposes of enhancing Werners sentence. The State appealed to the district court, which reversed the judgment of the county court. Werner now appeals the order of the district court. For the reasons set forth below, we affirm the judgment of the district court.
BACKGROUND
On January 9, 1998, Werner was charged with DUI, third offense, a Class W misdemeanor, and driving during suspension, second offense, a Class III misdemeanor. Werner pled guilty to the DUI charge on March 31, and the driving during suspension charge was dismissed.
At an enhancement hearing held May 15, 1998, the State offered into evidence two prior convictions for DUI. The transcript of each of the two prior convictions contained a standardized waiver of rights form signed by Werner. Counsel for Werner did not object to either of the exhibits. Upon receiving the exhibits into evidence, the following colloquy took place:
THE COURT: ... Boy, I wish there was something else I could do about this.
....
THE COURT: I mean, I don't think it'sII don't think its very....
[Defense counsel]: I agree. I think that the problem is that I think the waiver forms are in there but she didn't have a lawyer in either of the cases and I think she was in custody at the time that she pled to both of those and they had her sign the forms. I'm not completely sure she understood the effects of the DWI pleas, but I think that there is at least a waiver form and I'd ask the Court to consider not enhancing them, butbeyond that I don'tI'm not sure what the records would show beyond that.
THE COURT: You know, for somebody that can get in as much trouble as you can, hasat the young age that you are, I don't know why I'm going toI think I'm going to lose sleep over this tonight. So why am I trying to figure out a way to getto help you?
[Counsel for State]: Both Exhibits 1 and 2 do show that she was advised of the right to counsel....
[The court]: Oh, yeah, I mean thatwe don't need to get intowewere just dealing with....
[Counsel for State]: ... want to be heard....
[The court]: Were not dealing with legalities of the situation, were dealing [with the] fairness in life to a 24 year old woman who's going to go to prison for four years, and that's what were trying to deal with. Were not....
[Counsel for State]: Okay.
....
[The court]: We're not dealing with what'swhat we're dealing with, see, is we're tryingwe're dealing withtrying to look at one of these stupid priors and trying to figure out a reason not to find her guilty of a third offense. It would stand with muster on an appealbut that's what we're dealing with.
The transcripts from the prior DUI convictions reflect that Werner was first arrested for DUI on March 22, 1997. Werner was scheduled to appear before the court on April 8. Werner failed to appear for this court date. At Werner's request, the matter was rescheduled for April 9. Werner appeared at the April 9 hearing and pled guilty to the DUI charge. Sentencing was scheduled for May 16. Werner failed to appear for sentencing on May 16.
*504 On April 16, 1997, Werner was again arrested for DUI. Werner was scheduled to appear for arraignment on this charge on May 6. Werner failed to appear. On July 10, Werner was sentenced on the first DUI charge, pled guilty to the second charge, and was also sentenced on that charge.
After further reviewing the records from the two prior offenses, the county court expressed concern that on the same date that Werner was sentenced on the first DUI charge Werner
executed a waiver of rights DWI pro se form [on the second charge] which was filed the same date, wherein the Judge allowed Ms. Werner to plead guilty to all counts, including a no operator's license on person. And asome other equally heinous offense I cant find itfailing to appear. Andthat in [sic] enoughthat brings some question to my mind as to whether or not the waiver of the rightsespecially the right to an attorney, even though she indicates in this printprinted form that she understands that theforegoing rights and is giving them up freely, voluntarily, knowingly and intelligently, the Court doesn't make that finding. They offthe Court does not make a finding of any factual basis on July 10th, 1997, it just indicates, "Defendant pleads guilty to all counts.["] ... I question whether or not that plea was taken and that she waived her rights freely, voluntarily, knowingly and intelligently.... I'm finding for purposes of the record the offense complained of is a Second Offense.
The county court sentenced Werner to 90 days in jail and fined her $500. The county court also ordered Werner not to drive for a period of 1 year. Pursuant to Neb.Rev.Stat. § 29-2317 (Reissue 1995), the State timely appealed to the district court. The district court found that the county court's failure to consider the second DUI was clearly erroneous. Accordingly, the district court reversed the judgment of the county court and remanded the matter back to the county court with directions "to enter a judgement finding [Werner] guilty of a third offense DWI" and to resentence her accordingly. Werner timely appeals the district court's order.
ASSIGNMENT OF ERROR
Werner alleges the district court erred in reversing the county court's decision that Werner was guilty of second-offense DUI and, in any event, the district courts remand to county court with directions to find Werner guilty of third-offense DUI violated her right to be free of double jeopardy.
STANDARD OF REVIEW
Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the lower court in a judgment under review. State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996); State v. Lujano, 251 Neb. 256, 557 N.W.2d 217 (1996).
A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996).
When interpreting a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is the courts duty to discover, if possible, the Legislature's intent from the language of the statute itself. State ex rel. Wood v. Fisher Foods, 254 Neb. 982, 581 N.W.2d 409 (1998).
DISCUSSION
Double Jeopardy.
Section 29-2317 provides, inter alia, that a prosecuting attorney may appeal *505 any ruling or decision of the county court made during the prosecution of a cause by presenting to the court a notice of intent to take an appeal to the district court with reference to the rulings or decisions of which the complaint is made. However,
[t]he judgment of the court in any action taken under the provisions of [§] 29-2317 ... shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy, but in such cases the decision of the district court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may thereafter arise in the district.
(Emphasis supplied.) Neb.Rev.Stat. § 29-2319 (Reissue 1995).
The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999); State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998); State v. Wolf, 250 Neb. 352, 549 N.W.2d 183 (1996); State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
State v. Rust, 247 Neb. 503, 508-09, 528 N.W.2d 320, 325 (1995) (quoting Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957)).
On the other hand, "[s]entencing decisions favorable to the defendant ... cannot generally be analogized to an acquittal." Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 2251, 141 L. Ed. 2d 615 (1998). "`The imposition of a particular sentence usually is not regarded as an `acquittal' of any more severe sentence that could have been imposed.'" Id. (quoting Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981)). See, also, United States v. DiFrancesco, 449 U.S. 117, 134, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) (observing that "a sentence does not have the qualities of constitutional finality that attend an acquittal"). Thus, the double jeopardy prohibition does not apply to noncapital sentencing determinations, even if the sentencing proceeding had the "`hallmarks of [a] trial on guilt or innocence.'" Monge v. California, 118 S. Ct. at 2251.
Werner contends that when the county court found her guilty of second-offense DUI, it acquitted her of third-offense DUI. Thus, Werner argues, the district court's judgment ordering the county court to find her guilty of third-offense DUI was unconstitutional because it placed her in jeopardy twice for the same crime. The State argues that the offense was DUI, not third-offense DUI, and a finding that it is a second or third offense is only relevant to the sentence or punishment that is imposed.
We believe the pivotal issue is whether, pursuant to Neb.Rev.Stat. § 60-6,196 (Reissue 1993), the proscribed offense is "third-offense DUI," making the prior convictions necessary elements of the offense, or whether the offense is simply "DUI," with the prior DUI convictions only enhancing the sentence. If the prior convictions are essential elements of the crime, it seems to us that Werner's argument on appeal gains substantial momentum. That is to say, if each of the prior DUI convictions were viewed as elements of a separate crime of third-offense DUI, Werner arguably escaped conviction for that crime *506 after the trial court determined that one of the elementsa prior convictionhad not been established. Few would seriously contend that a defendant could be convicted of a greater offense after being found guilty of a lesser offense at trial.
Section 60-6,196(2) provides, inter alia, "Any person who operates or is in the actual physical control of any motor vehicle while [under the influence of alcohol or drugs] shall be guilty of a crime and upon conviction punished as follows...." (Emphasis supplied.) The section addressing the possible penalties provides that if a person has had two or more DUI convictions, the person is guilty of a Class W misdemeanor. The punishment is dependent upon the number of prior convictions and whether or not the person is placed on probation.
The plain language of the statute criminalizes the act of DUI. The fact that the defendant has previously been convicted of DUI is irrelevant to guilt or innocence and is relevant only to the sentence to be meted out. Indeed, the sole difference between a first, second, or third conviction for DUI is the penalty authorized. Whether it is a first, second, or third DUI conviction, it is still a Class W misdemeanor. See Neb.Rev.Stat. § 28-106 (Reissue 1995). An increased penalty for repetition of the same crime is as typical a sentencing factor as one might imagine. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
For the foregoing reasons, we conclude that the offense the Legislature intended to proscribe is DUI. That the defendant has prior DUI convictions merely enhances the sentence. The effect of the district court's order on appeal was not to convict Werner of a crime for which she had been found not guilty by the county court, but, rather, was to determine that the county court's failure to enhance was erroneous, thus subjecting Werner to an enhanced penalty for a third conviction for DUI. Remanding the case to county court with directions to sentence Werner according to law does not violate double jeopardy principles. See United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) (holding that review of defendant's sentence does not in itself offend double jeopardy principles merely because its success might deprive defendant of benefit of more lenient sentence).
Werner argues that this court's prior decision in State v. Long, 4 Neb.App. 126, 539 N.W.2d 443 (1995), compels a contrary result. We disagree. In Long, the State, pursuant to Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1994), had appealed a trial courts failure to increase a misdemeanor theft conviction to a felony under Neb.Rev.Stat. § 28-518(6) (Cum.Supp.1994). We prefaced our decision with the phrase that our "holding will not affect Long, as jeopardy has attached to him." Id. at 128, 539 N.W.2d at 445. Section 28-518 grades theft crimes according to the value of the thing involved and expressly states that value is an essential element of the theft offense addressed. In Long, we affirmed the trial court's refusal to increase the grade of the current conviction. Hence, the double jeopardy comment quoted above was likely dicta. But, in any event, Long does not stand for the proposition that the States success on an appeal under § 29-2315.01 is always barred by double jeopardy principles. Rather, as stated earlier, § 29-2317 precludes reversal only when the defendant has been placed legally in jeopardy. As already discussed, the reversal and remand by the district court in this case was only for purposes of correctly sentencing Werner for her third DUI. Such action does not offend double jeopardy principles, even though it might deprive Werner of the benefit of a more lenient sentence. See United States v. DiFrancesco, supra. This assignment of error is without merit.
Was County Court Wrong?
Werner next argues that even if the district courts order does not violate double *507 jeopardy principles, the order was nevertheless erroneous in that the county court had correctly found that the State had failed to meet its burden to prove that Werner had two prior DUI convictions.
Challenges to prior plea-based convictions for enhancement proceedings may be made only for the failure of the face of the transcript to disclose whether the defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at the time the pleas were entered. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996). In a proceeding for an enhanced penalty, the State has the burden to show that the record of a defendants prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. Id.
In both of Werner's prior plea-based convictions, she signed a standardized waiver form which provided, inter alia:
I, the undersigned, hereby come before this Court for the purpose of entering a plea of GUILTY or NO CONTEST to one or more of the following offenses:
OPERATING a motor vehicle while under the influence of alcoholic liquor or drugs or with .10% or more by weight of alcohol in my body fluids.
....
I understand that I have the right to be represented by an attorney, and that if I am indigent, the Court will appoint an attorney for me at the State's expense. I, the undersigned defendant, do hereby waive my right to be represented by an attorney in this case.
. . . .
I, the defendant, understand that upon my plea of guilty or no contest, I waive and give up all of the above rights.... I HAVE READ THE FOREGOING, UNDERSTAND THE RIGHTS THAT I AM GIVING UP, AND WAIVE THOSE RIGHTS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.
(Emphasis in original.)
The two forms also provide:
1. The above rights (were) (were not) reviewed orally by the court with the defendant on the date shown.
2. The defendant (did)(did not) state to the court that he/she has read and does understand these rights.
Each form was signed by Werner and was "Accepted and Approved" by the court. Under the rationale of Orduna, these two waiver forms are sufficient to meet the State's burden of proof that Werner knowingly, intelligently, and voluntarily waived her rights to counsel. The State met its burden on this issue, and the county court's determination that the second plea-based conviction was invalid for enhancement purposes was clearly erroneous. See State v. Orduna, supra. The district court did not err in so concluding.
The county court, in rejecting this conviction, alluded to the absence of a factual basis for the second conviction. Even if correct, a matter we do not decide, this challenge was clearly not available to Werner at the enhancement hearing. See State v. Orduna, supra.
CONCLUSION
The county court's determination that Werner's second plea-based conviction was invalid for sentencing purposes was clearly erroneous. The district court's order remanding the case with directions to find that this was Werner's third DUI conviction and to resentence Werner accordingly did not offend principles of double jeopardy. Accordingly, the district court's order is affirmed in all respects.
AFFIRMED.
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600 N.W.2d 670 (1999)
236 Mich. App. 315
Brandy TAYLOR and Brian Taylor, Individually, and Brandy Taylor, as Next Friend and Mother of Shelby Taylor, a Minor, Plaintiffs-Appellants,
v.
Surender KURAPATI, M.D., and Annapolis Hospital, assumed name of United Care, Inc., Defendants-Appellees.
Docket No. 204908.
Court of Appeals of Michigan.
Submitted March 10, 1999, at Detroit.
Decided June 25, 1999, at 9:05 a.m.
Released for Publication October 8, 1999.
*672 Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Detroit, for Brandy and Brian Taylor.
Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Surender Kurapati, M.D.
Saurbier, Paradiso & Perrin, P.L.C. (by John M. Perrin and Mark A. Meyer), St. Clair Shores, for United Care, Inc.
Before: DOCTOROFF, P.J., and SMOLENSKI and WHITBECK, JJ. *671
*673 WHITBECK, J.
Plaintiffs Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor,[1] a minor, appeal as of right the trial court's order granting summary disposition in favor of defendants Surender Kurapati, M.D., and Annapolis Hospital with respect to their wrongful birth and negligent infliction of emotional distress claims.
With respect to their wrongful birth claim, the Taylors cite the following description of the tort of wrongful birth in Blair v. Hutzel Hosp., 217 Mich.App. 502, 506-507, 552 N.W.2d 507 (1996), rev'd on other grounds 456 Mich. 877, 569 N.W.2d 167 (1997):
"If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered." [Quoting Proffitt v. Bartolo, 162 Mich.App. 35, 46, 412 N.W.2d 232 (1987).]
With respect to their negligent infliction of emotional distress claim, the Taylors cite Wargelin v. Sisters of Mercy Health Corp., 149 Mich.App. 75, 80-81, 385 N.W.2d 732 (1986), for the proposition that "Michigan has recognized a cause of action based on negligence when a parent who witnesses the negligent infliction of injury to his or her child suffers emotional distress as a consequence."
We note that counsel for the Taylors during oral argument candidly conceded that, but for the claimed existence of the wrongful birth tort, there would be no issue relating to the statute of limitations. Thus, this case revolves around the wrongful birth tort. In this opinion, we address the basic question whether, absent legislative action, such a tort has a rightful place in our jurisprudence. We conclude that it does not. We further conclude that the Taylors failed to file their complaint within the applicable limitation period. We also conclude that the undisputed facts of this case do not support a claim of negligent infliction of emotional distress and that summary disposition was also appropriate with regard to this aspect of the case.
I. Basic Facts And Procedural History
The Taylors filed their complaint in August 1996.[2] The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radiology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple's daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor's second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus *674 two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. M.B. Cash. Cash indicated that the baby's femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with "gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right." A study at the University of Michigan Hospital suggested that Shelby Taylor had femur-fibula-ulna syndrome.
In their complaint, the Taylors alleged that the standard of care in performing the initial ultrasound had been breached by Kurapati when he failed to locate all four limbs at the time of the ultrasound. The Taylors alleged that the ultrasound should have shown Shelby Taylor's disabilities and that the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy. In addition to their claim of medical malpractice, the Taylors also alleged that, because of defendants' negligence, they suffered emotional distress at witnessing the birth of their child.
In early April 1997, Annapolis filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Annapolis primarily argued that the Taylors had failed to file their complaint within the statute of limitations for medical malpractice actions. Soon thereafter, Kurapati filed a similar motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10).
The trial court held a hearing regarding defendants' motions in early May 1997. The trial court concluded that the Taylors' medical malpractice claim was not timely filed and dismissed the complaint with regard to any malpractice claims. However, the trial court allowed the Taylors' claim of negligent infliction of emotional distress to go forward, because the parties had not addressed the issue in their briefs. The trial court gave defendants an opportunity to submit motions for summary disposition with regard to the negligent infliction of emotional distress claim and eventually, without oral arguments, granted defendants' motions for summary disposition of the Taylors' claim of negligent infliction of emotional distress. The trial court also denied the Taylors' motion for reconsideration with regard to its earlier ruling regarding the statute of limitations.
II. The Wrongful Birth Tort
A. The Closely Analogous Birth-Related Torts
(1) Introduction
The wrongful birth tort is within a constellation of birth-related torts and is closely related to two other such torts: "wrongful conception" and "wrongful life." At the outset, however, we note that the relationship between the wrongful birth tort and other, more firmly established torts of birth-related medical malpractice is considerably more tenuous. Michigan has long recognized that causes of action exist inand we use the cruel but evocative trial parlance with extreme hesitation"bad baby" cases. In such cases, courts and juries have held physicians and other health professionals liable for birth- or pregnancy-related disabilities caused in whole or in part by their negligence.[3]
*675 These cases generally involve negligence occurring fairly close in time to, if not contemporaneous with, the birth itself.[4] This is unlike the wrongful birth tort that usually involves an allegation of a negligent failure relatively early in the pregnancy to inform the parents of the risk of birth defects. Further, these cases do not involve the intermediate step of parental action. That is, they do not involve an allegation that the negligence deprived the parents of the opportunity to terminate the pregnancy.[5] In other words, such cases are simply a typical claim of medical malpractice injuring a person. They are not wrongful birth claims because they involve no allegation that the baby involved should never have been born, but rather involve an allegation that, absent malpractice, the same baby would have been born without certain injuries.
Further, despite rhetorical similarities, the wrongful birth tort has little to do with "end of life" cases. These cases have their basis in a person's right to make medical decisions, grounded in the common law,[6] state statutes or state constitutions,[7] or in the federal constitutional liberty interest[8] in refusing unwanted medical treatment. In this regard, Michigan recognizes a right to withhold or withdraw life-sustaining medical treatment under the common-law doctrine of informed consent. In re Martin, 450 Mich. 204, 215, 538 N.W.2d 399 (1995). Any similarity that might exist between these end of life cases and the wrongful birth tort derives not from situations involving a competent patient's right to make such medical decisions. Rather the similarity derives from situations involving a once-competent patient, who has utilized a living will[9] or other advance directive [10] or a do-not-resuscitate order[11] to proscribe certain types of treatment; a once-competent patient who has left no such instructions;[12] or a never-competent patient.[13] Generally, *676 these situations involve the use of surrogates who have, or who seek, the power to make life or death decisions on behalf of the patient. There is, therefore, an analogy between these cases and the surrogate role of the parents in wrongful birth cases who have, but argue that the physician's negligence deprived them of, the right under controlling federal precedent to terminate a pregnancy.
However, the analogy is not a close one, for several reasons. First, although much of the litigation and legislative activity in the end of life area may have its roots in a fear of liability, the actions themselves do not generally arise in a tort context. Second, courts generally recognize that the right to refuse life-prolonging procedures, whether directly or through surrogates, is not an absolute one and often balance that right against the state's interests, including the interest in preserving life, preventing suicide, protecting innocent third parties, and maintaining the ethical integrity of the medical profession.[14] In wrongful birth cases, however, courts often consider these interests to be inapplicable or shunt them aside. Thus, the most fruitful comparisons for analytic purposes are to the closely analogous birth-related torts of wrongful conception and wrongful life.
(2) Wrongful Conception
As Anthony Jackson outlines,[15] an action for wrongful conception, also known as wrongful pregnancy, arises where the defendant's negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal ligation [16] or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results;[17] (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely stage, and the birth of a healthy, but unwanted, baby results;[18] and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results.[19] Of course, the latter two situations do not actually involve a claim that a defendant's negligence was a factor in the conception of the child.
As noted, this Court has recognized a cause of action for wrongful conception. According to our research, the first case definitively on point was Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). In Troppi, as this Court described it in Rouse v. Wesley, 196 Mich.App. 624, 628, 494 N.W.2d 7 (1992), the parents had seven children and decided to limit the size of their family. The Troppis' physician prescribed oral contraceptives for Mrs. Troppi but the defendant pharmacist negligently provided Mrs. Troppi with tranquilizers. Presumably as a result, Mrs. Troppi conceived and delivered an eighth, and healthy, child. Id. The Troppi panel permitted *677 the Troppis to maintain an action for the costs[20] of raising this eighth child to the age of majority.
The Troppi panel was careful to declare, at least initially, that it was not blazing new ground:
Contraception, conjugal relations, and childbirth are highly charged subjects. It is all the more important, then, to emphasize that resolution of the case before us requires no intrusion into the domain of moral philosophy. At issue here is simply the extent to which defendant is civilly liable for the consequences of his negligence. In reversing and remanding for trial, we go no further than to apply settled common-law principles. [Troppi, supra at 244-245, 187 N.W.2d 511.]
The Troppi panel then reviewed the common-law concepts of breach of duty,[21] causation in fact,[22] and direct and proximate causation resulting in damages[23] and concluded:
This review of the elements of tort liability points up the extraordinary nature of the trial court's holding that the plaintiffs were entitled to no recovery as a matter of law.[[24]] We have here a negligent, wrongful act by the defendant, which act directly and proximately caused injury to the plaintiffs.
What we must decide is whether there is justification here for a departure from generally applicable, well-established principles of law:
"The general rule of damages in an action of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages will not be considered in conformity to the general rule above laid down." Van Keulen & Winchester Lumber Co. v. Manistee & N. R. Co. [222 Mich. 682, 687, 193 N.W. 289 (1923).] [Troppi, supra at 246-247, 187 N.W.2d 511.]
Having declared that the issue with respect to this new tort was whether its noncreation could be justified as an exception to common-law principles, the Troppi panel concluded that there was no valid reason why the trier of fact should not be free to assess damages "as it would in any other negligence case." Id. at 252, 187 N.W.2d 511. Picking up speed, the Troppi panel plunged into a discussion of public policy (relying, in part, on its perception of "the State's advocacy of family planning," *678 id. at 253, 187 N.W.2d 511) and then paused at midpoint to soundly endorse the application of the "benefits rule." See id. at 252-262, 187 N.W.2d 511. The Restatement as then in effect, Restatement, Torts, § 920, p. 616, expressed this rule as:
Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable. [Emphasis supplied.]
The Troppi panel saw no problem in applying this rule in a wrongful conception case:
Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the economic costs of an unplanned child in applying the "same interest" [[25]] rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.
The trial court evidently believed, as did the court in Shaheen v. Knight, supra,[[26]] that application of the benefits rule prevents any recovery for the expenses of rearing an unwanted child. This is unsound. Such a rule would be equivalent to declaring that in every case, as a matter of law, the services and companionship of a child have a dollar equivalent greater than the economic costs of his support, to say nothing of the inhibitions, the restrictions, and the pain and suffering caused by pregnancy and the obligation to rear the child.
There is a growing recognition that the financial "services" which parents can expect from their offspring are largely illusory.[[27]] As to companionship, cases decided when "loss of companionship" was a compensable item of damage for the wrongful death of a child reveal no tendency on the part of juries to value companionship so highly as to outweigh expenses in every foreseeable case.[[28]]
Our discussion should not be construed as an expression of doubt as to the efficacy of the benefits rule in cases like the one before us. On the contrary, we believe that rule to be essential to the rational disposition of this case and the others that are sure to follow. The benefits rule allows flexibility in the case-by-case adjudication of the enormously varied claims which the widespread use of oral contraceptives portends. [Id. at 255-256, 187 N.W.2d 511 (emphasis supplied).]
The Troppi panel then brushed aside the problem of placing a dollar value on the companionship and services of an unwanted child. The panel stated that "difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether," id. at 261, 187 N.W.2d 511, holding that a trier of fact could find a basis for the "reasonable ascertainment of the amount of the damages," id. This Court reached a similar result in Green v. Sudakin, 81 Mich.App. 545, 265 N.W.2d *679 411 (1978).[29]
However, in Rinard v. Biczak, 177 Mich. App. 287, 441 N.W.2d 441 (1989), this Court reached a far different conclusion. Rinard involved a suit by the plaintiffs against the defendant physician in which the plaintiffs alleged medical malpractice for the defendant's failure to diagnose Mrs. Rinard's pregnancy. At trial, the plaintiffs testified that Mrs. Rinard probably would have sought to terminate the pregnancy had the defendant properly diagnosed that pregnancy. The jury awarded the plaintiffs damages for the cost of raising their healthy child. Id. at 289-290, 441 N.W.2d 441. The Rinard panel reversed, holding that neither natural nor adoptive parents can recover the costs of "raising a normal, healthy child because those costs are outweighed by the benefits of that child's life." Rinard, supra at 290, 441 N.W.2d 441.
In reaching this conclusion, the Rinard panel observed that Michigan is among the minority of states that allow the recovery of the costs of raising a child as an element of damages, offset by the benefits received by the parents from a parent-child relationship. Rinard, supra at 292, 441 N.W.2d 441. The panel commented that, "[i]n a substantially greater number of jurisdictions, courts have denied the recovery of child-rearing costs." Id. (citations omitted). Further, "[i]t appears that the majority of states do not allow recovery of the costs of raising `a healthy, normal child' as a element of damages in a wrongful pregnancy case."[30] The Rinard panel then went on to criticize the application of the benefits rule in wrongful pregnancy cases:
Courts have not allowed the recovery of the costs of raising a normal, healthy child as an element of damages for many reasons.[[31]] We consider the best reason to be that the costs of raising such a child are outweighed by the value of that child's life. In Rohm v. Stroud, 386 Mich. 693, 696, 194 N.W.2d 307 (1972), our Supreme Court stated that the value of a minor child's services to a parent is at least as great as the amount expended by the parent on the child's support, maintenance and education. In that wrongful death case, our Supreme Court further stated that parents are at least entitled to the presumption that a child is worth his keep, and the negligent act which snuffs out their child's life deprives them of services at least equal to the amount of their pecuniary outlay. 386 Mich. [at] 697 [194 N.W.2d 307].
The instant case does not involve a wrongful death claim. However, allowing the costs of raising a child as an element of damages logically requires the conclusion that the nonexistence of that child would be a benefit. [Morris v. Sanchez, 746 P.2d 184, 188 (Okla., 1987) ]. We agree with the reasoning of the Illinois Court of Appeals which stated:
"The existence of a normal, healthy life is an esteemed right under our laws, *680 rather than a compensable wrong. [Wilczynski v. Goodman, 73 Ill.App.3d 51, 62, 29 Ill. Dec. 216, 391 N.E.2d 479, 487 (1979).]"
In a proper hierarchy of values, the benefit of life should not be outweighed by the expense of supporting it. [Cockrum v. Baumgartner, 95 Ill. 2d 193, 201, 69 Ill. Dec. 168, 447 N.E.2d 385 (1983).] A court "`has no business declaring that among the living are people who never should have been born.'"[[32]] Proffitt, supra, p. 51 [412 N.W.2d 232], quoting Smith v. Cote, 128 N.H. 231, 249, 513 A.2d 341, 353 (1986).
Another reason for not allowing the recovery of child-rearing costs as an element of damages is that, to maximize their recovery under the benefits rule, parents must demonstrate that they did not want their child and that the child is of minimal value to them. Michigan should not allow "`the unseemly spectacle of parents disparaging the "value" of their children or the degree of their affection for them in open court.'" Cockrum, supra, p. 202 [69 Ill. Dec. 168, 447 N.E.2d 385], quoting Public Health Trust v. Brown, 388 So. 2d 1084, 1086, n. 4 (Fla.App., 1980). A related concern is for the child who may learn that his parents did not want him to exist and sued to have the person who made his existence possible provide for his support. Wilbur v. Kerr, 275 Ark. 239, 242-244, 628 S.W.2d 568, 570-571 (1982). [Rinard, supra at 292-294, 441 N.W.2d 441 (citations omitted).]
Thus, in the 1970s and 1980s, this Court reached conflicting conclusions concerning the value of a healthy child's life. On the one hand, the Troppi and Rinard panels assumed that a trier of fact could ascertain a "reasonable" value for that life, which might or might not exceed the expense of the child's support. On the other hand, the Rinard panel concluded that the value of that life is at least equal to the expense of the child's support and, further, that the benefit of that child's life should not be outweighed by the expense of supporting it.
This Court resolved, at least partially, this conflict in Rouse, supra. Rouse was unquestionably a wrongful conception case in which the plaintiffs sued over an unsuccessful tubal ligation performed on Mrs. Rouse. Id. at 625-626, 494 N.W.2d 7. As in Troppi, presumably as a result of the fact that the surgery was unsuccessful, Mrs. Rouse thereafter conceived. She then delivered a sixth, and healthy, child. While the trial court permitted the plaintiffs to maintain the action for medical costs and pain and suffering, it granted the defendants summary disposition with respect to the plaintiffs' claim for damages for the cost of raising the child to the age of majority, following the decision in Rinard, supra. See Rouse, supra at 625-626, 494 N.W.2d 7. Thereafter, on the plaintiffs' motion, the trial court dismissed the remaining counts in the complaint without prejudice. The plaintiffs appealed, contending that the trial court should have permitted them to maintain an action for the cost of raising the child to majority as part of their suit for wrongful conception. Id. at 626, 494 N.W.2d 7.
The Rouse panel held that in the context of a wrongful conception[33] action, a plaintiff may not recover the customary cost of raising and educating the child. Id. at 631-632, 494 N.W.2d 7. In reaching this narrow decision, the Rouse panel articulated a broader concept and one that we consider to be of surpassing importance:
*681 As recognized by this Court on previous occasions, the subjects of reproduction, contraception, and the decision to avoid or terminate pregnancy are highly personal subjects fraught with controversy. It is therefore understandable that a conflict has arisen in decisions from this Court, as well as in other jurisdictions, with respect to whether parents may recover the customary cost of raising a child where, although the parents attempt to avoid pregnancy, conception and the birth of a child occurs as a result of the negligence of a doctor or other responsible person. We hold, however, that such recovery should not be available in Michigan.
We recognize that the cost of raising a child to majority is significant and may, in certain circumstances, impose a hardship upon the child's parents. We further recognize, however, that all human life is presumptively valuable. Simply stated, a child should not be considered a "harm" to its parents so as to allow recovery for the customary cost of raising the child. Our Supreme Court has held in the context of wrongful death actions that the benefits of the services of a minor child to the child's parents are at least as great as the cost of raising the child to majority. Rohm [supra.] [[34]] See also Rinard, supra, [at] 292 [441 N.W.2d 441]. Similarly, in the context of a wrongful pregnancy action, we hold as a matter of law that the value of the life of a child will always outweigh the customary cost of raising that child to majority. The benefits rule is therefore inapplicable in a wrongful pregnancy action. [Rouse, supra at 630-631, 494 N.W.2d 7 (emphasis supplied).]
We recognize that the Rouse decision did not rule out a wrongful conception action for medical costs and pain and suffering. We further recognize that Rouse dealt with an unwanted, but healthy, child while wrongful birth actions deal with unwanted, and disabled, children. We do not concede, however, that an intermediate appellate court of this state should implicitly endorse the view that the life of a disabled child is worth less than the life of a healthy child. If all life is presumptively valuable, Rouse, supra at 631, 494 N.W.2d 7, how can we say that what we really mean is that all lives except for the lives of the disabled are presumptively valuable? If we say that the benefits rule is inapplicable to the lives of healthy children, id., how can we then continue, at least implicitly, to apply that rule to the lives of disabled children? If we conclude that in a proper hierarchy of values, the expense of supporting life should not outweigh the benefit of that life, Rinard, supra at 293, 441 N.W.2d 441, how can we say that what we really mean is that such expense should not outweigh the benefit of lives of healthy children, but can outweigh the benefit of lives of disabled children? If we say that a court "has no business declaring that among the living are people who never should have been born," id., how can we continue to sayand here virtually explicitly through the device of compensating the parents for the expenses of that "wrongful birth"that courts can go about the business of declaring that living, but disabled, children should never have been born? To say the least, this Court's language in its partial repudiation of the wrongful conception doctrine in Rouse raises the most troubling of questions about the continued viability of the wrongful birth tort in Michigan.[35]
*682 (3) Wrongful Life
As Anthony Jackson outlines:[36]
The claim is brought by or on behalf of the child who alleges that she was born because of the doctor's negligent failure to properly advise her parents and, as a result, has to suffer the condition. The doctor's negligent advice causes the pain, suffering, and financial hardship experienced each day by the child.
The doctor has not caused the disability itself. But for the doctor's negligent acts, however, the child would not have been born and, thus, would not have suffered the ensuing condition. The parents either would have decided not to conceive or, if they became aware of the condition at a later stage, would have terminated the pregnancy in accordance with the applicable law.
In Proffitt v. Bartolo, 162 Mich.App. 35, 412 N.W.2d 232 (1987), this Court held that the wrongful life cause of action was not available in Michigan. Proffitt involved, in count I, the parents' action for wrongful birth. Count II, however, was the parents' action on behalf of their daughter, Maya Proffitt, alleging that she would be unable to earn any income and therefore seeking recovery for the "`extensive medical, institutional and educational' expenses" that she would incur after reaching age eighteen. Maya Proffitt's parents also requested, on her behalf, damages for the "`severe pain and suffering, emotional distress and pain, embarrassment and humiliation' resulting from her grave congenital deformities." Proffitt, supra at 39, 412 N.W.2d 232.
The underlying allegation of negligence involved the defendant physician Dr. Bartolo's treatment of Mrs. Proffitt. As the Proffitt panel described it:
Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital in Monroe, Michigan, for studies. On February 26, 1976, the blood studies were performed, including a test for rubella. During March, 1976, Yasmin continued under Dr. Bartolo's care and complained of chronic headaches, fever, malaise, and gastrointestinal discomfort. On March 17, 1976, Dr. Bartolo again admitted Yasmin to the hospital for the treatment of a parasitic infection associated with hematemesis and headaches. Dr. Bartolo diagnosed Yasmin's condition as a whipworm infestation and discharged her from the hospital on March 19, 1976. In the following months, Yasmin continued to complain of chronic headaches, nausea, malaise, and fever to Dr. Bartolo.
David called Dr. Bartolo on June 14, 1976, to complain about Yasmin's high fever. At the end of the conversation, Dr. Bartolo advised plaintiffs that he could no longer provide professional services to them and that they should seek the services of another physician. Plaintiffs retained the services of another physician who delivered the child, plaintiff Maya S. Proffitt, on August 23, 1976.
Plaintiffs alleged numerous instances of negligent conduct on Dr. Bartolo's part. Essentially, plaintiffs alleged that Dr. Bartolo failed to exercise the required degree of care and skill in diagnosing and treating Yasmin, including a failure to take an adequate history, to employ sufficient diagnostic tests, to interpret the rubella test properly, and to order additional tests to evaluate the risk of a rubella or other infection which could cause congenital fetal malformations. Plaintiffs allege that Dr. Bartolo failed to advise them of the rubella test results, the significance of those findings and the necessity of further tests, and the risk of severe congenital fetal malformations resulting from rubella or other serious infections during Yasmin's first trimester of pregnancy. Plaintiffs also alleged that Dr. Bartolo failed to advise plaintiffs of the risks to the fetus so that plaintiffs could decide whether to *683 terminate the pregnancy. Plaintiffs allege that, had Dr. Bartolo properly diagnosed Yasmin's condition and adequately advised them, they would have terminated Yasmin's pregnancy. Instead, Maya was born with microcephaly, mental retardation, severe bilateral eye malformations resulting in blindness, and other severe congenital malformations caused by a rubella infection or another intrauterine viral, parasitic or protozoic infection transmitted to Maya during the early stages of fetal development. [Id. at 37-39, 412 N.W.2d 232.]
The Proffitt panel first noted that in Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981), this Court had recognized the wrongful birth tort in a case involving rubella-caused birth defects. Proffitt, supra at 41, 412 N.W.2d 232. The Proffitt panel stated that "[t]he jurisdictions considering the issue have now almost uniformly adopted the wrongful birth cause of action." Id. at 42, 412 N.W.2d 232.[37] The Proffitt Panel then reviewed wrongful birth cases from a number of other jurisdictions, including Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983). See Proffitt, supra at 42-46, 412 N.W.2d 232.[38] With respect to the wrongful birth tort, the Proffitt panel concluded, "[a]gainst this backdrop, we conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court." Id. at 46, 412 N.W.2d 232.
With respect to the wrongful life tort, however, the Proffitt panel reached a far different conclusion. It first noted that this Court had previously rejected this cause of action on three occasions. Id. at 47-50, 412 N.W.2d 232, citing Eisbrenner, supra, Dorlin v. Providence Hosp., 118 Mich.App. 831, 325 N.W.2d 600 (1982), and Strohmaier v. Associates in Obstetrics & Gynecology, 122 Mich.App. 116, 332 N.W.2d 432 (1982).
After reviewing these decisions and the decisions of other states regarding the wrongful life tort, the Proffitt panel then came to the heart of the matter:
We begin with the proposition that the wrongful birth cause of action already exists as a valid cause of action in this state and elsewhere. It follows, then, that the reasons for accepting it have also been found to be valid. As both the wrongful birth and the wrongful life causes of action generally arise out of the same factual situation, those reasons arguably apply with equal validity and relevancy to the wrongful life cause of action. Nevertheless, this Court has previously refused to allow a wrongful life claim to stand, the Supreme Court has refused to review that point of view, and the Legislature has not seen fit to act in this area. Consequently we are reluctant to resolve all of the moral and public policy arguments that others at a different or higher level have declined to address. There comes a point at which three judges on an intermediate appellate court should restrain themselves from making new law. The decision whether a life with birth defects has a greater or lesser value than no life at all is beyond such a point. Consequently we will allow the law to *684 remain where it stands. The "wrongful birth" claim in this case must go to trial and the "wrongful life" claim will remain dismissed. [Proffitt, supra at 57-58, 412 N.W.2d 232 (emphasis supplied).]
In our view, this mixed decision elevates the principle of stare decisis over all logic. It apparently escaped the Proffitt panel that in 1981 when this Court decided Eisbrenner, neither the Legislature nor the Michigan Supreme Court had recognized the wrongful birth tort. Further, although the Proffitt panel the point, it appeared to have made no difference to that panel that, on exactly the same facts, this Court was continuing to recognize the wrongful birth tort while declining to recognize the wrongful life tort.
The net result is a misshapen jurisprudence. Simply put, if Maya Proffitt, through her parents acting as her surrogates, could not bring an action for wrongful life in Michigan because neither the Legislature nor the Michigan Supreme Court has recognized the wrongful life tort, then why should those same parents be allowed to bring an action for wrongful birth on exactly the same facts when neither the Legislature nor the Supreme Court has recognized the wrongful birth tort? The answerand it appears to us to be a rather self-evident answeris that, if there is any consistency to the law in this area, this Court should not have allowed the Proffitts to bring such a wrongful birth action. Again, to say the least, this Court's rejection of the wrongful life tort in Eisbrenner, Dorlin, Strohmaier, and Proffitt raises the most troubling of questions about the continued viability of the wrongful birth tort in Michigan.
(4) Conclusion
This Court has partially repudiated the birth-related tort of wrongful conception and totally rejected the birth-related tort of wrongful life. Both of these causes of action are closely analogous to the birth-related tort of wrongful birth. Nevertheless, this Court, without any action by the Legislature or the Michigan Supreme Court, has continued to recognize the tort of wrongful birth. The resulting jurisprudence defies all logic. Below, we explore the origins of the wrongful birth tort in Michigan and respond to various arguments for its continuation.
B. The Origins Of The Wrongful Birth Tort In Michigan
(1) Eisbrenner
This Court first recognized the wrongful birth tort in Eisbrenner, supra. Eisbrenner involved facts very similar to Proffitt. The plaintiffs alleged that the defendant physician negligently failed to diagnose Mrs. Eisbrenner's rubella, despite the fact that the defendant had seen test results that indicated she had contracted the disease. The plaintiffs further alleged that the defendant negligently failed to warn the plaintiffs of the possibility that the child would be born with rubella-caused defects. As in Proffitt, the plaintiffs contended that had the defendant acted properly, he would have informed them of the risk, and that the family would have decided to terminate the pregnancy rather than taking a chance on birth defects. Eisbrenner, supra at 360, 308 N.W.2d 209.
The Eisbrenner panel began its analysis with a review of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). See Eisbrenner, supra at 361-362, 308 N.W.2d 209. Gleitman involved a child with birth-related defects apparently causally related to the viral disease of German measles that Mrs. Gleitman had early in her pregnancy. The Gleitman court assumed that the defendant physician had affirmatively misled Mrs. Gleitman by telling her that the German measles she had would have no effect on her child, then in gestation. The court further assumed that Mrs. Gleitman could have terminated the pregnancy in a fashion that would not have subjected the participants to criminal sanctions, but that she did not do so because she relied on the incorrect advice of the defendants. Gleitman, supra at 27, 227 A.2d 689.
*685 Despite these assumptions, the majority of the Gleitman court rejected claims of both wrongful life and wrongful birth.[39] With respect to wrongful birth, the majority stated:
A considerable problem is raised by the claim of injury to the parents. In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child.
* * *
We are not here faced with the necessity of balancing the mother's life against that of her child. The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle. It may have been easier for the mother and less expensive for the father to have terminated the life of their child while he was an embryo, but these alleged detriments cannot stand against the preciousness of the single human life to support a remedy in tort. [Gleitman, supra at 29-31, 227 A.2d 689.]
The Eisbrenner panel noted that the New Jersey Supreme Court had partially retreated from its position in Gleitman[40] and declined to follow it. Eisbrenner, supra at 364, 308 N.W.2d 209. Rather, after reviewing a number of cases from around the country, the Eisbrenner panel, relying heavily on Troppi, supra, held that the trial court had properly refused to dismiss the Eisbrenners' cause of action for wrongful birth. Eisbrenner, supra at 367-368, 308 N.W.2d 209.
We believe it critical to note that Rouse at least partially overruled Troppi, in the process stating that the benefits rule should not be applied in wrongful conception cases. Thus, we conclude that the intellectual basis in Troppi for the Eisbrenner wrongful birth decision no longer exists.
(2) Post-Eisbrenner Decisions
We recognize, nevertheless, that this Court continued to followor least mentionthe Eisbrenner decision in a number of subsequent cases.[41] The basic question, *686 then, becomes whether this Court correctly decided Eisbrenner and its progeny. We conclude that these cases were wrongly decided.
C. Wrongful Birth: A Misshapen Jurisprudence
(1) MCR 7.215(H)
MCR 7.215(H) provides that this Court must follow the rule of law established by a prior published decision of the Court issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court or by a special conflict panel of this Court. While this Court decided Eisbrenner, Dorlin, Strohmaier, Proffitt, and Rinard before November 1, 1990, we decided Rouse and Blair after that date. Thus, unless one can distinguish these two cases or unless they have been later reversed or modified, we must apply them.
We can easily distinguish Rouse. The Rouse panel observed that Michigan case law has recognized a claim for wrongful birth based on a medical professional's failure to provide information that would have led the parents of a child to opt to terminate the pregnancy before that child was born, Rouse, supra at 626-627, 494 N.W.2d 7. However, this statement is dictum. The claim in Rouse was not a wrongful birth claim. Rather, it was a wrongful conception claim. The narrow issue in Rouse, therefore, was whether "plaintiffs, in the context of a wrongful pregnancy action, can seek to recover as part of their damages the customary cost of raising and educating the child." Id. at 627, 494 N.W.2d 7. Thus, the Rouse summary of Michigan appellate case law regarding wrongful birth was part of a background discussion of legal principles. It was unnecessary to, and indeed not a part of, the actual rationale for the decision in Rouse. As dicta, the statements in Rouse regarding wrongful birth are not binding precedent.
The decision in Blair stands on the same ground, but for another reason. The Blair panel did hold that wrongful birth claims remain viable. However, because the Supreme Court reversed, see 456 Mich. 877, 569 N.W.2d 167, the decision in Blair even though on other grounds that were decisive of the entire case[42]this Court is not required to follow it. Thus, with respect to both Rouse and Blair, MCR 7.215(H) does not stand as a bar to this Court's reconsideration of the wrongful birth tort. Therefore, we are free albeit within the constraints of a proper regard for stare decisis to reconsider the Troppi-based holding in Eisbrenner as carried forward in Dorlin, Strohmaier, Proffitt, and Rinard, all cases decided before November 1, 1990.
(2) Roe v. Wade
The Proffitt panel articulated a separate reason for continuing to recognize the wrongful birth tort:
*687 As long as abortion remains an option allowed by law, the physician owes a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Those who would eliminate such a right of recovery must first abolish the right to have an abortion a matter not germane to this appeal. [Proffitt, supra at 46-47, 412 N.W.2d 232 (emphasis supplied).]
This line of argument is fundamentally erroneous. While currently prevailing United States Supreme Court precedent recognizes a federal constitutional right to privacy, see Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and holds that this right to privacy "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," Maher v. Roe, 432 U.S. 464, 473-474, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), this right to privacy "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Id. at 474, 97 S. Ct. 2376.
In particular, Michigan law provides for no right to an abortion and, in fact, makes a value judgment favoring childbirth. This Court has held that the Michigan Constitution does not provide a right to end a pregnancy. Mahaffey v. Attorney General, 222 Mich.App. 325, 334-339, 564 N.W.2d 104 (1997). On the contrary, the public policy of Michigan, while limited by decisions of the United States Supreme Court, is to forbid elective abortion. Id. at 337, 564 N.W.2d 104. As dissenting Judge O'Connell noted in Blair, supra at 519, 552 N.W.2d 507, "Michigan refuses to publicly fund an abortion unless the abortion is necessary to save the life of the mother," citing Doe v. Dep't of Social Services, 439 Mich. 650, 678, 487 N.W.2d 166 (1992), and M.C.L. § 400.109a; MSA 16.490(19a). Judge O'Connell further observed that "[o]ur state's public policy is manifested in numerous other ways," citing M.C.L. § 333.17014(f) and (h); MSA 14.15(17014)(f) and (h).
Indeed, the Michigan Supreme Court has held that federal case law imposes no obligation on government to be neutral regarding abortion, but rather allows a state to make a value judgment favoring childbirth over abortion. Doe, supra at 667, 487 N.W.2d 166. The core holding in Doe was that the Equal Protection Clause of the Michigan Constitution does not require the state to fund abortions for women receiving public assistance, even though the state provides financial support for childbirth to similarly situated women receiving public assistance. See id. at 681-682, 487 N.W.2d 166. Because the state has no obligation to affirmatively aid a woman in obtaining an elective abortion by paying for it, the state similarly has no obligation to take the affirmative step of imposing civil liability on a party for failing to provide a pregnant woman with information that would make her more likely to have an elective, and eugenic,[43] abortion.
In reality, then, wrongful birth cases are not abortion cases. If the United States Supreme Court had never decided Roe v. Wade, the Eisbrenner decision in Michigan would have been the same, because it takes its basic rationale from Troppi, a pre-Roe v. Wade decision. Conversely, eliminating the tort of wrongful birth in Michigan would have no effect whatever on the federal constitutional right that the Roe v. Wade Court recognized.[44]
*688 (3) The Slippery Slope Of The Benefits Rule
At its intellectual core, the wrongful birth tort this Court created in Eisbrenner relies on the benefits rule this Court adopted in Troppi. To say the very least, continued reliance on this rule has some far-reaching, and profoundly disturbing, consequences. This rule invites the jury in wrongful birth cases to weigh the costs to the parents of a disabled child of bearing and raising that child against the benefits to the parents of the life of that child. This rule thus asks the jury to quantify the unquantifiable with respect to the benefits side of the equation. Further, to posit a specific question: how does a jury measure the benefits to the parents of the whole life of the disabled child, when the potential of that child is unknown at the time of suit? How, for example, would a hypothetical Grecian jury, operating under Michigan jurisprudence, measure the benefits to the parents of the whole life of Homer, the blind singer of songs who created the Iliad and the Odyssey? Absent the ability to foretell the future and to quantify the value of the spoken and then the written word, how, exactly, would the jury do that?
Further, the use of the benefits rule in wrongful birth cases can slide ever so quickly into applied eugenics. The very phrase "wrongful birth" suggests that the birth of the disabled child was wrong and should have been prevented. If one accepts the premise that the birth of one "defective" child should have been prevented, then it is but a short step to accepting the premise that the births of classes of "defective" children should be similarly prevented, not just for the benefit of the parents but also for the benefit of society as a whole through the protection of the "public welfare." This is the operating principle of eugenics. James E. Bowman[45] provides a dark, single sentence description of eugenics: "Eugenics espouses the reproduction of the `fit' over the `unfit' (positive eugenics) and discourages the birth of the `unfit' (negative eugenics)." [46] Paul A. Lombardo more broadly, and more charitably, defines eugenics as the idea that the human race can be gradually improved and social ills simultaneously eliminated through a program of selective procreation[47] and describes its *689 most enthusiastic American advocates:[48]
Francis Galton, Karl Pearson, and others who called themselves eugenicists believed in improving the human condition through the use of science. They understood their field as the marriage of the biological sciences, including medical genetics, with the then new discipline of biostatistics. The most passionate of American eugenicists, such as Charles Davenport and Harry Laughlin, wished to develop a taxonomy of human traits and to categorize individuals as "healthy" or "unhealthy," and "normal" or "abnormal," within their classification scheme. Working under the presumption that most, if not all, human traits are transmitted genetically, the eugenicists encouraged educated, resourceful, and self-sufficient citizens to mate and produce "wellborn" eugenic children. In contrast, the dysgenic were discouraged from reproducing. Harry Laughlin called dysgenic groups "socially inadequate" and defined them to include: the feebleminded, the insane, the criminalistic, the epileptic, the inebriated or the drug addicted, the diseasedregardless of etiology, the blind, the deaf, the deformed, and dependents (an extraordinarily expansive term that embraced orphans, "ne'er-do-wells," tramps, the homeless and paupers.)
To our eyes, this concept appears simultaneously cruel and laughable, but we should remember that the concept, and the values, of eugenics had a profound effect on American society. We should also recall that the courts were not above the use of this type of rhetoric. One of the most respected jurists in American history, Justice Oliver Wendell Holmes, wrote the decision in Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927). As Lombardo describes the opinion:[49]
Justice Holmes borrowed language directly from the Virginia law's preamble, and repeated its conclusion that "experience has shown that heredity plays an important part in the transmission of insanity, [and] imbecility...." Holmes then endorsed the law's procedures and approved the reasoning and result in the Virginia courts that reviewed the law, concluding with one of the most callous and elitist statements in Supreme Court history: "[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." In singling out the helplessly dependent genetic imbecile and the congenitally deficient criminal, Holmes emphasized the genetic determinism that eugenic theory had incorporated. Holmes' choice of a public health law analogy wedded the imagery of a plague with the idea of cleansing the social fabric through sterilization; "[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This statement suggests that wiping out an epidemic with a vaccine was comparable to wiping out crime and mental disease with sterilization. Justice Holmes' most dramatic statement in the opinion included a memorable comment that posed a seemingly irrefutable public policy conclusion: "three generations of imbeciles are enough."
Finally, we should not forget the influence that the Third Reich's experiments with sterilization had on the American eugenics movement. As Lombardo[50] notes, Dr. Joseph DeJarnette, who testified as an expert witness in the Buck trial, made the following comments about those experiments:
No person unable to support himself on account of his inherited mental condition has a right to be born.... In Germany the sterilization law embraces *690 chronic alcoholics, certain hereditary physical diseases, the hereditarily blind and deaf, the criminally insane, feebleminded and epileptic. [B]y December 31, 1934 Germany had sterilized 56,224 [persons].
Lombardo[51] notes that Dr. DeJarnette continued to express his admiration for Hitler's campaign in the good doctor's last official comment regarding sterilization in 1938:
Germany in six years has sterilized about 80,000 [[52]] of her unfit while the United States with approximately twice the population has sterilized about 27,869 to January 1, 1938, in the past 20 years. The death rates in Virginia from sterilization is [sic] negligiblenot over one in a thousand.... The fact that there are 12,000,000 defectives in the United States should arouse our best endeavors to push this procedure to the maximum.
To our ears, at the close of the twentieth century, this talk of the "unfit" and of "defectives" has a decidedly jarring ring; we are, after all, above such lethal nonsense. But are we? We know now that we all have at least five recessive genes but, according to Bowman,[53] when scientists map the human genome, they will unveil many more potentially harmful genes in each of us. Bowman states that "[p]sychoses, hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, susceptibility genes for communicable diseases, genes for various mental deficiencies,[[54]] aging genes, and other variations and disorders will be ascertained." Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically "unfit" and "defective" child? Our current acceptance of the wrongful birth tort would require the answer to this question in Michigan to be: yes.
We further note that it is but another short half step from the concept of preventing the birth of an "unfit" or "defective" child to proposing, for the benefit of the child's overburdened parents and of the society as a whole, that the existence of the child should not be allowed to continue. Again, this sounds preposterous, but is it? As described by Bowman:[55]
Daniel Callahan, the former President and Founder of the Hastings Center, the preeminent center for bioethics in the United States, has proposed age-based rationing of health care for elderly persons to alleviate escalating health care costs. Pain relief would be in order, but not life-saving measures, including nutrition. In short, aged individuals past their late seventies or early eighties should go quietly into the night in order that the generation to follow would have access to health carein their early years. [Emphasis supplied.]
*691 If the elderly have a duty to dieindeed, to be starved to deaththen why not the disabled child? After all, if that child never should have been born, then that child has no real right to go on living, thereby imposing the costs of the child's continued existence on the parents and society. This, we conclude, is the logical end of the slippery slope inherent in the application of the benefits rule through the wrongful birth tort.
(4) Conclusion
We conclude that this intermediate appellate court should not continue to recognize the wrongful birth tort without the slightest hint of approval from the Michigan Supreme Court or our Legislature. At least five states[56] have taken legislative action to prohibit "wrongful birth" suits while one state[57] has taken legislative action to permit such suits. If society is to recognize such a tort, it should do so through the action of a majority of the legislature, whose role it is to set social policy. We therefore reconsider our pre-1990 decisions establishing the wrongful birth tort and hold that, as a matter of law, it has no continued place in our jurisprudence.
We recognize that our decision to abolish a tort cause of action for "wrongful birth" marks a substantial change from the rule of law in force since the decision in Eisbrenner, supra, in 1981. In determining whether to give an opinion that has the effect of changing a rule of law complete retroactive effect, we should consider (1) the purpose served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice. Lincoln v. General Motors Corp., 231 Mich.App. 262, 267-268, 586 N.W.2d 241 (1998). While we believe our rejection of a tort cause of action for "wrongful birth" to be a much sounder rule of law than the previous recognition of a wrongful birth tort, we also recognize that the tort was recognized for a period of many years and that attempts to apply our decision to pending litigation might have a disruptive effect on the administration of justice. Accordingly, our holding is to apply to this case (because application of the holding to this case, which our panel was already considering, will not be disruptive to the administration of justice) and to bar any cause of action for wrongful birth in a complaint filed after the release of this opinion. See Parker v. Port Huron Hosp., 361 Mich. 1, 28, 105 N.W.2d 1 (1960) (applying a new rule of law in a civil case "to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion").[58]
*692 D. The Statute Of Limitations
Here, the Taylors' wrongful birth claim was essentially a claim of medical malpractice. Dorlin, supra at 836, 325 N.W.2d 600. A plaintiff in a medical malpractice action must bring the claim within two years of when the claim accrued, or within six months of when the plaintiff discovered or should have discovered the claim, whichever is later.[59] MCL 600.5805(4); MSA 27A.5805(4), M.C.L. § 600.5838a(2); MSA 27A.5838(1)(2); Solowy v. Oakwood Hosp. Corp., 454 Mich. 214, 219, 561 N.W.2d 843 (1997). Because it is undisputed that the Taylors' wrongful birth claim is based on medical malpractice, the date of the accrual of the claim is governed by M.C.L. § 600.5838a(1); MSA 27A.5838(1)(1); Dorlin, supra at 836, 325 N.W.2d 600. A medical malpractice claim accrues "at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." MCL 600.5838a(1); MSA 27A.5838(1)(1); Solowy, supra at 220, 561 N.W.2d 843. Here, the act or omission that formed the basis of the Taylors' claim was Kurapati's interpretation of the ultrasound on December 4, 1993. Thus, the Taylors had until December 4, 1995, to file their claim. By filing their initial complaint on March 26, 1996, the Taylors failed to file within the applicable limitation period and summary disposition was appropriate.
The Taylors maintain that a wrongful birth claim does not accrue until the birth of the child. It is true that a tort action generally accrues when all of the necessary elements of the cause of action have occurred and can be pleaded in a complaint. Luick v. Rademacher, 129 Mich.App. 803, 806, 342 N.W.2d 617 (1983). However, our Legislature created an exception to that general rule in the case of medical malpractice actions when it enacted M.C.L. § 600.5838a(1); MSA 27A.5838(1)(1). Again, under Michigan law, a medical malpractice claim accrues at the time of the act or omission that is the basis of the claim regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. MCL 600.5838a(1); MSA 27A.5838(1)(1) (emphasis supplied). Therefore, we find no merit in the Taylors' assertion that their claim accrued upon the birth of the child. The Taylors further argue that their wrongful birth claim accrued on the last date that Brandy Taylor could have obtained an abortion. However, the Taylors have offered no authority in support of their position. MCL 600.5838a(1); MSA 27A.5838(1)(1) is controlling with respect to the accrual date. Dorlin, supra at 836, 325 N.W.2d 600.
*693 III. Negligent Infliction Of Emotional Distress
The Taylors argue that the trial court erred in granting defendants' motion for summary disposition with respect to their claim of negligent infliction of emotional distress where they suffered severe emotional distress witnessing the birth of their child. We disagree. Defendants moved for summary disposition of the negligent infliction of emotional distress claim pursuant to MCR 2.116(C)(7), (8), and (10). The order granting summary disposition did not indicate under which subrule of MCR 2.116 the trial court granted defendants' motion. We conclude that summary disposition was appropriate under both MCR 2.116(C)(8) and (10).
A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Jackson v. Oliver, 204 Mich. App. 122, 125, 514 N.W.2d 195 (1994). All factual allegations in support of the claim must be accepted as true, as well as any reasonable inferences that can be drawn from the facts. Id. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim and may be granted when, except for the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment or partial judgment as a matter of law. Michigan Mut. Ins. Co. v. Dowell, 204 Mich.App. 81, 85, 514 N.W.2d 185 (1994). The court must consider the documentary evidence submitted by the parties and, giving the benefit of reasonable doubt to the nonmoving party, must determine whether a record might be developed that would leave open an issue with regard to which reasonable minds might differ. Id.
A plaintiff may recover for negligent infliction of emotional distress where (1) the injury threatened or inflicted on the third person is a serious one, of a nature to cause severe mental disturbance to the plaintiff, (2) the shock results in actual physical harm, (3) the plaintiff is a member of the third person's immediate family, and (4) the plaintiff is present at the time of the accident or suffers shock "fairly contemporaneous" with the accident. Wargelin, supra at 81, 385 N.W.2d 732. The Taylors' claim is fatally flawed where both the parents acknowledged that they did not see their child's disabilities at or immediately after her birth. Brandy Taylor's deposition testimony indicated that she did not know anything was wrong with Shelby Taylor and that the doctors swept the child out of the room before she had the chance to see her. Brian Taylor testified that he noticed something about Shelby Taylor's arm, but that the child was taken out of the room before he could notice more of the disabilities. The Taylors' physician was able to discuss the child's disabilities with the Taylors before they saw her. The undisputed facts of this case do not support a claim of negligent infliction of emotional distress. Cf. Wargelin, supra at 86-88, 385 N.W.2d 732. Thus, summary disposition was appropriate pursuant to MCR 2.116(C)(10). In addition, the Taylors failed to allege that the shock of Shelby Taylor's birth caused them actual physical harm. Therefore, summary disposition pursuant to MCR 2.116(C)(8) was also appropriate. Id.
Affirmed.
SMOLENSKI, J., concurred.
DOCTOROFF, P.J. (concurring in part and dissenting in part).
I concur with the majority's conclusion that plaintiffs' wrongful birth claim is barred by the statute of limitations and with the majority's resolution of plaintiffs' negligent infliction of emotional distress claim. However, I dissent from the majority opinion with respect to its purported abolition of the wrongful birth tort where this Court's recognition of that tort was *694 not challenged by the parties or decided by the trial court.
First, the majority's attempt to abolish the wrongful birth tort is in vain where its discussion with respect to whether this Court should continue to recognize that tort, and its purported abolition of the tort, is merely dictum with no precedential value. "[S]tatements concerning a principle of law not essential to determination of the case are obiter dictum and lack the force of an adjudication." Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 597-598, 374 N.W.2d 905 (1985). In the instant case, defendants moved for summary disposition on the ground that plaintiffs' wrongful birth claim was barred by the statute of limitations. Thus, with respect to the wrongful birth claim, the only issue before us was whether the wrongful birth claim was barred by the statute of limitations. A review of the complaint, the answers to the complaint, the affirmative defenses, the dispositive motions, the transcript of the summary disposition motion hearing, the claim of appeal, and the appellate briefs reveals that this Court's recognition of the wrongful birth tort was never challenged by the parties. The only determination essential to the narrow issue raised by the parties with respect to the wrongful birth claim was whether plaintiffs' complaint was filed within the applicable statute of limitations period. A discussion of the history of the wrongful birth tort and related torts, and a conclusion that we should no longer recognize wrongful birth claims, was not essential to the determination of this case and was, in my opinion, a waste of judicial time and resources where, as dicta, the discussion and conclusion are of no precedential value.
Moreover, the majority's conclusion that the wrongful birth tort should be abolished was made without the aid of briefing or argument by the parties. "It is well settled that issues neither briefed nor argued cannot be definitively decided, and that the Court's pronouncements, especially dicta, without briefing and argument, are not stare decisis." Quinton v. General Motors Corp., 453 Mich. 63, 74, 551 N.W.2d 677 (1996) (Levin, J). This is an appellate court that is intended to review issues raised by the parties, and it is not the job of this Court to manufacture issues to be decided. The majority does not limit its review to issues raised or considered below, but takes it upon itself to formulate an issue and then decide that issue when it has not been asked to do so. The majority's opinion is an exercise in futility, which should be avoided by this Court. Our caseload and workload are significant enough without judges manufacturing issues that are irrelevant to the issues raised and briefed by the parties. The material included in the majority opinion is best reserved for an article in a legal periodical, where a judge is free to write about issues of concern to the judge. An opinion that is written for the benefit of parties and lawyers is not the proper place for a judge to voice the judge's own views. This is unnecessary judicial activism, which is usually scorned by the majority. I would have decided plaintiffs' argument that their wrongful birth claim was barred by the statute of limitations on that narrow ground, alone. The consideration of whether this Court should continue to recognize wrongful birth claims should be left for a day when that issue is before us. Thus, because the issue was not raised, briefed, or argued by the parties below or on appeal, I cannot join in the majority opinion to the extent that it discusses whether this Court should continue to recognize a wrongful birth cause of action and concludes that it should not.
Nevertheless, I concur with the majority with respect to its conclusion that the trial court properly granted summary disposition of plaintiffs' wrongful birth and negligent infliction of emotional distress claims. I agree that plaintiffs' wrongful birth claim accrued when defendant Kurapati interpreted the ultrasound on December 4, 1993, and that, by failing to bring their *695 claim within two years of the date their claim accrued, plaintiffs failed to file their claim within the applicable statute of limitations period. MCL 600.5805(4); MSA 27A.5805(4), M.C.L. § 600.5838a(2); MSA 27A.5838(1)(2). Thus, I concur with the majority to the extent that it addresses the statute of limitations issue and concludes that summary disposition was proper on that basis pursuant to MCR 2.116(C)(7). I further concur with the majority's resolution of plaintiffs' negligent infliction of emotional distress claim. The undisputed facts did not support a claim of negligent infliction of emotional distress, and plaintiffs failed to allege that the shock of their daughter's birth caused them physical harm. Thus, summary disposition was appropriate pursuant to MCR 2.116(C)(8) and (10).
NOTES
[1] Shelby Taylor's cause of action was presumably for "wrongful life." Michigan does not recognize a cause of action for wrongful life, and the Taylors have not raised the issue on appeal. See Rouse v. Wesley, 196 Mich.App. 624, 627, 494 N.W.2d 7 (1992); Proffitt v. Bartolo, 162 Mich.App. 35, 58, 412 N.W.2d 232 (1987); Dorlin v. Providence Hosp., 118 Mich.App. 831, 835, 325 N.W.2d 600 (1982); Eisbrenner v. Stanley, 106 Mich.App. 357, 367, 308 N.W.2d 209 (1981).
[2] In late March 1996, in case number XX-XXXXXX NH, the Taylors filed a complaint against defendants for medical malpractice. In an order dated August 12, 1996, the Taylors' claim was dismissed without prejudice for failure to comply with the statutory notice of intent provisions. The order provided that "the statutory notice provision shall expire on August 19, 1996 and plaintiff may refile its complaint on August 20, 1996 and that the Statute of Limitations is tolled through August 19, 1996." We did not receive the record for case number XX-XXXXXX NH, and therefore we rely on the parties' briefs to supply the procedural background. That the complaint was initially dismissed is not at issue in this case.
[3] See Poet v. Traverse City Osteopathic Hosp., 433 Mich. 228, 445 N.W.2d 115 (1989) (suit based on alleged negligence in prenatal treatment resulting in birth of baby with permanent brain damage); May v. William Beaumont Hosp., 180 Mich.App. 728, 448 N.W.2d 497 (1989) (the defendant hospital found liable for injuries to baby due to malpractice in prenatal treatment); Soto v. Lapeer Co., 169 Mich.App. 518, 520, 426 N.W.2d 409 (1988) (suit alleging in part that death of two-month-old baby was due to negligent use of forceps during baby's delivery).
[4] See Proffitt, supra at 41, n. 2, 412 N.W.2d 232: "Both causes of action ["wrongful birth" and "wrongful life"] which we consider must also be distinguished from the situation where negligent injury to a normal fetus results in the birth of a child with birth defects."
[5] The phrase "terminate the pregnancy" is, of course, a euphemism; the plain English word is "abortion." Because we do not believe that the abortion cases control the issues in this matter and because the word "abortion" is so value-laden in our society, we have elected to use the euphemism except when discussing the abortion cases directly.
[6] See, e.g., DeGrella v. Elston, 858 S.W.2d 698 (Ky., 1993).
[7] See, e.g., In re Guardianship of Browning, 568 So. 2d 4 (Fla., 1990).
[8] See, e.g., Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 278, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990).
[9] MCL 700.496; MSA 27.5496 allows an adult to designate a "patient advocate" to generally make medical decisions on behalf of the adult in the event of incapacity. However, M.C.L. § 700.496(9)(e); MSA 27.5496(9)(e) provides:
A patient advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient's death.
[10] All fifty states have some form of advance directive statute. As noted in the preceding footnote, the Michigan statute allows an adult to, in writing, name a patient advocate.
[11] See Michigan Do-Not-Resuscitate Procedure Act, M.C.L. § 333.1051 et seq.; MSA 14.15(1051) et seq.
[12] See, e.g., In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).
[13] Michigan law does not allow a surrogate decisionmaker to direct the withdrawal of life-sustaining medical treatment from a conscious, but incapacitated, patient without clear and convincing evidence that "while competent, [the patient] made a statement of his desire to refuse life-sustaining medical treatment under these circumstances." Martin, supra at 233-234, 538 N.W.2d 399. Likewise, we consider it unlikely that the Michigan Supreme Court would allow a surrogate decisionmaker to withdraw life-sustaining treatment from a never-competent patient. "If we are to err ... we must err in preserving life." Id. at 208, 538 N.W.2d 399.
[14] See Cruzan, supra at 271, 110 S. Ct. 2841, citing In re Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).
[15] Jackson, Action for wrongful life, wrongful pregnancy, and wrongful birth in the United States and England, 17 Loy., L.A. Int'l & Comp. L.J. 535, 583 (1995).
[16] See, e.g., Cockrum v. Baumgartner, 99 Ill. App. 3d 271, 54 Ill. Dec. 751, 425 N.E.2d 968 (1981). See also Rouse, supra at 625, 627, 494 N.W.2d 7.
[17] See, e.g., Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971).
[18] See, e.g., Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989).
[19] See, e.g., Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986).
[20] The specific costs that the Troppis claimed were "(1) Mrs. Troppi's lost wages; (2) medical and hospital expenses; (3) the pain and anxiety of pregnancy and childbirth; and (4) the economic costs of rearing the eighth child." Troppi, supra at 244, 187 N.W.2d 511.
[21] The Court found that the defendant pharmacist's conduct, in negligently supplying a drug other than the drug requested, constituted a clear breach of duty, Troppi, supra at 245, 187 N.W.2d 511.
[22] The Court found that "[t]he possibility that she [Mrs. Troppi] might become pregnant was certainly a foreseeable consequence of the defendant's failure to fill a prescription for birth control pills; we, therefore, could not say that it was not a proximate cause of the birth of the child." Troppi, supra, at 245-246, 187 N.W.2d 511.
[23] The Court found:
The medical and hospital expenses of Mrs. Troppi's confinement and her loss of wages arose from the defendant's failure to fill the prescription properly. Pain and suffering, like that accompanying childbirth, have long been recognized as compensable injuries. [Troppi, supra at 246, 187 N.W.2d 511.]
[24] According to the Troppi panel, the trial court "declared that whatever damage plaintiffs suffered was more than offset by the benefit to them of having a healthy child." Troppi, supra at 244, 187 N.W.2d 511.
[25] The "same interest" rule is another formulation of the benefits rule, whereby if the defendant's tortious conduct conferred a benefit to the same interest that was harmed by his conduct, the dollar value of the benefit is to be subtracted from the dollar value of the injury in arriving at the damages properly awardable. Troppi, supra at 255, 187 N.W.2d 511, citing Burtraw v. Clark, 103 Mich. 383, 61 N.W. 552 (1894); 22 Am.Jur.2d, Damages, § 204, p. 283; McCormick, Damages, § 40, p. 146.
[26] 11 Pa. D. & C.2d 41, 45, 46 (1958).
[27] The Troppi panel cited no source for this conclusion.
[28] Again, the Troppi panel cited no source for this conclusion.
[29] In Green, as described by this Court in Rouse, supra at 628, 494 N.W.2d 7, the plaintiff wife requested that the defendant physician perform a tubal ligation immediately following the birth of her third child. The defendant failed to perform the surgery and, according to the plaintiffs, also failed to inform the plaintiffs that the surgery had not been performed. The plaintiffs consequently failed to take birth control precautions and a fourth child was born. The plaintiffs sued the defendant, seeking in part to recover the cost of raising the child. Id. The jury awarded the plaintiffs $95,000. Green, supra at 547, 265 N.W.2d 411. The Green panel affirmed, rejecting the defendant's argument that the award of such damages would be speculative, noting that the computation of the expense of raising a child, although difficult, should not operate to bar recovery. Id. at 547-548, 265 N.W.2d 411.
[30] See anno.: Recoverability of cost of raising normal, healthy child born as result of physician's negligence or breach of contract or warranty, 89 A.L.R. 4th 632, § 3, pp. 640-644 & 1998 Supp., 89 A.L.R. 4th 632, § 3, p. 13.
[31] Citing Morris v. Sanchez, 746 P.2d 184, 187-188 (Okla., 1987), and Cockrum v. Baumgartner, 95 Ill. 2d 193, 198-199, 69 Ill. Dec. 168, 447 N.E.2d 385 (1983).
[32] The phrase may have its origin in the New Testament (See Matthew, 26:24 (Holman Verse Reference Jewel Edition): "[I]t had been good for that man [Judas Iscariot] if he had not been born.") If so, the implicit comparison between Judas, the betrayer of Jesus, and the disabled is chilling.
[33] The Rouse panel used the term "wrongful pregnancy." Rouse, supra at 632, 494 N.W.2d 7.
[34] In a footnote, the Rouse panel stated," This holding would seem to undermine the basic premise in Troppi, which relies upon the benefits rule." Rouse, supra at 631, n. 3, 494 N.W.2d 7.
[35] While consideration of some of the rationale of "wrongful conception" cases is analytically crucial to our decision, the case at hand involves a claim for "wrongful birth," not wrongful conception. Thus, we do not address the issue whether wrongful conception claims, as distinct from wrongful birth claims and as limited by Rouse, supra, remain tenable.
[36] Jackson, supra at 536-537.
[37] However, that seems to have been a considerable overstatement. While the Proffitt panel cited anno.: Tort liability for wrongfully causing one to be born, 83 A.L.R. 3d 15 in support of its statement, that annotation in fact lists a number of cases in which courts in other jurisdictions have rejected theories of liability premised on damages supposedly suffered by the parents from the "wrongful birth" of a child or by a child from the child's supposedly "wrongful life." Id., § 3(b), pp. 36-40.
[38] In Harbeson, the Washington court appeared to adopt the benefits rule in wrongful birth cases by holding that the parents could recover for the medical expenses attributable to the child's "defective condition" and for the emotional injury caused by the birth of the "defective" child though the jury could also consider countervailing emotional benefits attributable to the birth of the child. Proffitt, supra at 45, 412 N.W.2d 232.
[39] The Court cited Theocritus: "`For the living there is hope, but for the dead there is none.'" Gleitman, supra at 30, 227 A.2d 689.
[40] See Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), recognizing a parents' cause of action for wrongful birth, partially based on a recognition that, under Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the mother's right to terminate the pregnancy during the first trimester was not subject to state interference.
[41] See Dorlin, supra at 835, 325 N.W.2d 600 ("The Eisbrenner Court did find that the parents had a cause of action and they could seek damages for both medical expenses and mental distress."); Strohmaier, supra at 119, 332 N.W.2d 432 ("In the Eisbrenner opinion, the panel held that, although the parents could seek damages for both medical expenses and mental distress, the child's claim did not constitute a valid cause of action."); Proffitt, supra at 46, 412 N.W.2d 232 ("[W]e conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court."); Rinard, supra at 290, 441 N.W.2d 441 ("A cause of action can be maintained in Michigan for failure to diagnose pregnancy."), Rouse, supra at 626-627, 494 N.W.2d 7 (citing Rinard, supra, and Proffitt, supra, to the effect that "[w]rongful birth is a tort action brought by parents of a child with a birth defect against a doctor or other person whose negligent failure to inform the parents of the risk of the birth defect deprived the parents of the opportunity to make an informed decision to avoid or terminate the pregnancy."); and Blair v. Hutzel Hosp., 217 Mich.App. 502, 508, 552 N.W.2d 507 (1996), rev'd 456 Mich. 877, 569 N.W.2d 167 (1997) (after discussing Eisbrenner, Proffitt, Rinard, and Rouse, holding that "[t]he trial court properly denied summary disposition of the wrongful birth claim because that is still a viable cause of action in this state.")
[42] We note that the only matter considered by the Blair panel of this Court was whether the trial court properly granted summary disposition in favor of the defendant hospital with regard to the wrongful birth claim brought by the plaintiff in that case. See Blair, supra at 217 Mich.App. 504-505, 552 N.W.2d 507. The decision of the Blair panel was to reverse the grant of summary disposition and remand the case for trial on the plaintiff's wrongful birth complaint. Id. at 512, 552 N.W.2d 507. However, the Supreme Court reversed that decision and reinstated the trial court's grant of summary disposition in favor of the defendant. Blair, supra at 456 Mich. 877, 569 N.W.2d 167. Thus, the Supreme Court reversed the decision of this Court in Blair in its entirety, although the Supreme Court did so without addressing the Blair panel's discussion of the continuing vitality of the wrongful birth cause of action in Michigan. Because the Supreme Court entirely reversed the Blair panel's decision, we conclude that under the plain language of MCR 7.215(H)(1), nothing in the Blair panel's opinion is binding precedent under that subrule. We observe that MCR 7.215(H)(1) establishes a bright-line test and that such a test cannot be maintained if every opinion is to be parsed into its smallest components.
[43] The concurrence in Gleitman, supra at 44, 227 A.2d 689, defined a "eugenic abortion" as one based on the probability or possibility that the fetus may be born in a mentally or physically abnormal condition. By contrast, the concurrence defined a "therapeutic abortion" as an induced interruption of a pregnancy, the continuance of which will jeopardize the life or health of the mother. Id.
[44] We also note the inherent proof problem in making a finding that an abortion would have occurred had the parents been informed of the child's potential disability. In this regard, Weymers v. Khera, 454 Mich. 639, 649, 563 N.W.2d 647 (1997), considered the "doctrine of lost opportunity," which allows for recovery when a defendant's negligence "possibly" (i.e. with a probability of fifty percent or less) caused the plaintiff's injury. The Court ultimately held that no cause of action exists for the loss of an opportunity to avoid physical harm less than death, id., in the process stating that it refused "to discard causation" in negligence actions of the type there presented, id. at 653, 563 N.W.2d 647. In wrongful birth actions, we note the difficulty in finding causation based on after-the-fact, possibly self-serving, testimony that the parents would have sought an abortion had they known of the child's potential disability.
[45] See Bowman, The road to eugenics, 3 U. Chic. L. Sch. Roundtable 491 (1996).
[46] Bowman goes on to amplify his description:
The delineation of the "fit" from the "unfit" is ancient. Ancient Greeks proposed to control mating among the guardian (upper) class to ensure that the offspring would produce the "best and the brightest." In Plato's Republic, Socrates explores the idea that "a life spent in the doctor's hands is not worth having," that medicine should only be practiced on those who have healthy constitutions and healthy habits; and "weak" parents should not be allowed to have "weak" children. The American Eugenics Movement in the 1920s targeted as "unfit" individuals with epilepsy, criminals, the crippled and deformed; persons who were mentally defective or who had low intelligence; patients with communicable diseases such as syphilis, tuberculosis, or leprosy; alcoholics and drug abusers; poor people; and Eastern European immigrants to the United States. The Nazis marked Jews, Gypsies, and other so-called non-Aryan peoples, individuals who were mentally defective, and persons with incurable or mental illnessesto name a few. In the heyday of eugenics, sterilization, infanticide, euthanasia, or a variety of "final solutions" were tools for the prevention or elimination of the "unfit." [Id. at 492.]
[47] See Lombardo, Medicine, eugenics and the Supreme Court: From coercive sterilization to reproductive freedom, 13 J. Contemp. Health L. & Pol'y 1-2 (1996).
[48] Id. at 2-3.
[49] Id. at 10-11.
[50] Id. at 11-12.
[51] Id. at 12.
[52] Lombardo notes that the Nazi program eventually claimed between 360,000 and 3,500,000 victims, commenting that "the numbers are elusive." Id.
[53] Bowman, supra at 492-493.
[54] Bowman notes:
Kay Jamison, Professor of Psychiatry at Johns Hopkins Medical School, who also serves on the National Advisory Committee for Human Genome Research, discovered an incidence of manic depressive illness among poets, composers, and other artists of from 30 to 50 percent. If we are ever able to prevent manic depressive illness by prenatal diagnosis and abortionor cure manic depressive illnessthere could be a detrimental effect on creativity. Samuel Coleridge Taylor, Emily Dickinson, T.S. Eliot, Victor Hugo, Samuel Johnson, Edna St. Vincent Millay, Ezra Pound, Edgar Allan Poe, Alfred Lord Tennyson, Walt Whitman, Hans Christian Anderson, Honore de Balzac, Charles Dickens, William Faulkner, Hector Berlioz, Handel, Gustav Mahler, Rachmaninoff, Rossini, Tchaikovsky, Irving Berlin, Cole Porter, Charles Parker, Paul Gaugin, Vincent van Gogh, Michelango, and Jackson Pollock could have been on an unfit hit list. [Id. at 514.]
[55] Id. at 503.
[56] Idaho (see Idaho Code 5-334); repealed by P.L. 1-1998, sec. 221 Minnesota (see Minn. Stat. Ann. 145.424); Missouri (see Mo. Ann. Stat. 188.130); Pennsylvania (see 42 Pa. Cons. Stat. Ann. 8305); and South Dakota (see S.D. Cod. Laws Ann. 21-55-2).
[57] Maine (see Me. Rev. Stat. Ann., tit. 24, § 2931 [2]).
[58] Contrary to our colleague's statement in his separate concurrence and dissent, our decision to abolish the tort of wrongful birth is not "merely dictum with no precedential value." Post at 694. Rather, we decide this case with two alternative holdings, neither of which may be considered dictum because both are equally decisive: (1) we affirm the trial court's grant of summary disposition in favor of defendants with regard to the wrongful birth claim because the tort of wrongful birth is abolished, and (2) we affirm the trial court's grant of summary disposition in favor of defendants with regard to the wrongful birth claim because the wrongful birth claim is barred by the statute of limitations. See Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 93 L. Ed. 1524 (1949) ("where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum"); see also Vaught v. Showa Denko KK, 107 F.3d 1137, 1144 (C.A.5, 1997). We note, in light of our colleague's concern about wasting judicial time and resources, that our decision to resolve this case with two alternative holdings may serve the goal of judicial economy. In the event that the Michigan Supreme Court should decide to review this case and decides that we erred with regard to one of our two central holdings, the Court will have the benefit of our analysis with regard to the other holding, thereby conserving judicial resources in that forum.
We acknowledge that the parties did not directly raise the issue whether the tort of wrongful birth should continue to be recognized in Michigan. However, "this Court may go beyond the issues raised on appeal and address issues that, in this Court's opinion, justice requires be considered and resolved." Frericks v. Highland Twp., 228 Mich.App. 575, 586, 579 N.W.2d 441 (1998). When a claim in a case is premised on an alleged tort, whether the tort theory underlying that claim should even be recognized as a matter of law is a basic and controlling issue in the case. Further, for the reasons we have discussed at length, recognition of a tort cause of action for wrongful birth is fundamentally unsound. We conclude that "justice requires," id., that we take this opportunity to consider the basic issue whether Michigan should recognize a cause of action for "wrongful birth."
As for the charge of "unnecessary judicial activism," post at 694, we welcome our colleague's apparent acceptance of the view that such activism is to be avoided and observe that the creation of the wrongful birth cause of action was, in the first instance, entirely a judicial act by an intermediate appellate court. We do not view the abolition of that cause of action, which has never been recognized by our Legislature or our Supreme Court, to be an example of judicial activism.
[59] The six-month period is not at issue here, where Brandy Taylor admitted that she suspected that the ultrasound was negligently interpreted as early as the summer of 1994.
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https://www.courtlistener.com/api/rest/v3/opinions/1310456/
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257 S.E.2d 797 (1979)
Frank COPPOLA
v.
COMMONWEALTH of Virginia.
Record No. 781741.
Supreme Court of Virginia.
August 30, 1979.
*799 Augustus Anninos, J. Gray Lawrence, Jr., Norfolk (Howell, Anninos, Daugherty & Brown, Norfolk, on brief), for appellant.
Alan Katz, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
*798 COCHRAN, Justice.
On September 26, 1978, Frank Coppola was convicted by a jury of capital murder during the commission of armed robbery in violation of Code § 18.2-31(d).[1] That same day, in the separate proceeding required by Code §§ 19.2-264.3 and -264.4, the jury heard evidence as to penalty and fixed Coppola's punishment at death, as authorized by Code § 18.2-10(a). After receiving the report of the probation officer, mandated by Code § 19.2-264.5, the trial court entered judgment upon the jury verdict.
*800 The automatic review of the death sentence imposed upon Coppola has been consolidated with the appeal of his conviction and given priority on the docket. Coppola asks that his conviction be reversed and that the case be remanded for a new trial on all issues because of alleged errors in the proceedings below, or in the alternative, that the death sentence be commuted to life imprisonment.
The evidence shows that in April, 1978, Coppola, his wife, Karen, Joseph Elliott Miltier, and Donna Mills drove to the home of Peyton and Muriel Hatchell in Newport News. The plan was for Coppola, who was disguised as a priest, to gain admittance to the house, and for Miltier to follow him into the residence for the purpose of robbing Mrs. Hatchell. The plan failed, however, when Mrs. Hatchell refused to permit Coppola to enter. Several days later, on April 22, the group decided to try another ruse to gain admittance to the Hatchell home. As directed by Coppola and Miltier, Donna Mills purchased roses which she delivered to Mrs. Hatchell at the front door. Mills was armed with a pistol given to her by Coppola. She and Mrs. Hatchell became involved in a struggle and fell down, and Coppola and Miltier then entered the house and tied up Mrs. Hatchell. In an effort to force Mrs. Hatchell to reveal where she had hidden money, Coppola struck Mrs. Hatchell in the face and repeatedly beat her head against the floor. There was evidence that Miltier also struck Mrs. Hatchell with his fist.
Hatchell returned from work during this time and was beaten in the head with a pistol by Miltier. Coppola, with socks on his hands, choked Hatchell and his wife. The robbers took $3,100 in cash from Hatchell and tied him up. They took Mrs. Hatchell's rings from her fingers and ransacked the premises, searching for more money. After Coppola, Miltier, and Mills fled from the scene of the crimes in one of Hatchell's automobiles, and rejoined Karen Coppola, Hatchell freed himself and called for help. By the time help arrived, Mrs. Hatchell had already died as the result of the blows to her head. Investigating officers found five of her front teeth scattered throughout the house. The medical evidence was that Mrs. Hatchell had died as a result of "blunt force injuries complicated by aspiration." She had vomited while unconscious and the discharge had regurgitated into her windpipe. Her head, face and body were bruised and lacerated.
Mills was subsequently arrested in connection with the offenses against the Hatchells. At first, she denied any involvement in the crimes but later, after having entered into a plea bargain with the Commonwealth under which the Commonwealth agreed to recommend that she receive life imprisonment for Mrs. Hatchell's murder, she gave detailed information about the crimes. She testified against Miltier whose trial ended less than two weeks before Coppola's trial began, and Miltier was found guilty of capital murder by a jury which fixed his punishment at life imprisonment. Mills was the chief prosecution witness against Coppola at his trial. Hatchell, who also testified, was unable to identify Coppola as one of the assailants.
Coppola has raised on brief and in oral argument various questions as to his conviction and his sentence, which we shall discuss under separate headings.
1. Pretrial Proceedings.
A. Change of venire.
Coppola filed a motion for a change of venue, which he supported by copies of news articles and transcripts of radio and television broadcasts to show that because of prejudicial media coverage he could not receive a fair and impartial trial in Newport News. The motion was modified to a motion for a change of venire, and, as modified, was denied. Coppola renewed the motion and alleged, in addition to the grounds previously asserted, that the extensive publicity given to the Miltier trial, in which Coppola's wife, Karen, had testified as a witness for the Commonwealth, made it impossible for Coppola to obtain a fair trial by a Newport News jury.
*801 A motion for a change of venire or venue is addressed to the sound discretion of the trial judge, and his action in overruling such a motion will not be reversed unless the record affirmatively shows that there has been an abuse of that discretion. Smith v. Commonwealth, 219 Va. 455, 461-62, 248 S.E.2d 135, 140 (1978), cert. denied, ___ U.S. ___, 99 S. Ct. 2419, 60 .Ed.2d 1074 (1979); Greenfield v. Commonwealth, 214 Va. 710, 716, 204 S.E.2d 414, 419 (1974); Foster v. Commonwealth, 209 Va. 297, 302-03, 163 S.E.2d 565, 569 (1968); Pannill v. Commonwealth, 185 Va. 244, 252, 38 S.E.2d 457, 461 (1946); Webb v. Commonwealth, 154 Va. 866, 871-72, 152 S.E. 366, 367-68 (1930). The law presumes that a defendant can receive a fair trial from the citizens of the county or city in which the offense was committed and to overcome this presumption the defendant must clearly show that there is such a widespread feeling of prejudice on the part of the citizenry as will be reasonably certain to prevent a fair and impartial trial. Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955). A court may refuse to summon a jury from another county until an ineffectual effort has been made to obtain an impartial jury from the county in which the trial is to take place. Pannill v. Commonwealth, supra, 185 Va. at 252, 38 S.E.2d at 461; Puryear v. Commonwealth, 83 Va. 51, 53, 1 S.E. 512, 514 (1887).
The mere existence of a preconceived notion as to the guilt or innocence of an accused is not sufficient to rebut the presumption of a prospective juror's impartiality, if the juror can lay aside his impression or opinion and render a verdict based upon the evidence. Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
Prospective jurors in the Coppola trial were examined on voir dire collectively by the court and individually by counsel. Only three veniremen reported that they had been influenced or prejudiced by the media coverage and they were struck for cause. All twelve of the jurors who served had been exposed to some pretrial publicity, but five stated that they were only casually or vaguely aware of any details of the crimes. Each juror stated that he or she had formed no opinion as to Coppola's guilt and could distinguish media reports from the evidence in the case. Hence, there is no evidence in the record of the voir dire examination of any widespread prejudice against Coppola which would prevent his receiving a fair and impartial trial, see Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), and we hold that there was no abuse of discretion by the trial court in denying his motion.
B. Exclusion of jurors.
On brief, Coppola argues that the trial court erred in striking for cause three veniremen, Ruth Lantz, Herman Henry, and Mary Raney, because of their opposition to capital punishment.
The exclusion of Ruth Lantz was based upon the following exchange:
Court: All right. My question is, do any of you have any conscientious scruples, religious or otherwise, against imposing the death penalty where it is justified by the law and the evidence?
* * * * * *
R. Lantz: Ruth Lantz. I'm against the death penalty forpunishment for a crime.
Court: All right. Now, the fact that you are against the death penalty ma'am, would this cause you toto refuse to impose the death penalty in any case?
R. Lantz: Yes, I believe it would.
The voir dire examination of Herman Henry produced the following questions and answers:
Mr. Robinson: Mr. Henry, at the conclusion of all the evidence, should the evidence justify it in your evaluation of the evidence and the law justify it, could you vote for the death penalty?
Henry: That will be a hard decision for me to do.
Court: The question is, sir, could you do that?
Henry: Death penalty, no, no sir.
*802 Robinson: Not under any circumstances, the death penalty; you could not vote for the death penalty?
Henry: I don't think so.
Robinson: Not under any circumstances?
Henry: No, sir.
On voir dire Mary Raney answered questions as follows:
Court: Do you have any conscientious scruples or other scruples against the imposition of the death penalty wherein it is justified by the law and the evidence?
Raney: I think that there are times when that is necessary. I am not so sure that I could vote for it, however.
Court: Let me put it this way. If, at the conclusion of this case, it appeared from the evidence and from the law that the penalty of death could be lawfully imposed, as well as other penalties, would you consider that penalty, along with your options of the other penalties?
Raney: I think I would find it very difficult to vote for that even if I felt it was justified.
* * * * * *
Raney: I don't think I could vote for that even if I felt that it was right. I don't think I could vote for it, for the death penalty.
* * * * * *
Robinson: Mrs. Raney, to try to clarify the issue that should the death penalty be a possible punishment, would youif you were on the jury, reject that consideration?
Raney: I think I would.
Robinson: Under no circumstances could you vote for it?
Raney: I don't think I could; even if I felt it was right, I don't think I could vote for it.
Robinson: Your feelings are about the death penalty, are such that you would automatically exclude it from your consideration?
Raney: I think I would have to say that I would.
Robinson: You use the phraseology, "I think," and sometimes we in the law business, do you feel that's a positive statement you're making that you would automatically exclude it?
Raney: Yes, I would automatically exclude it.
The Supreme Court has held that jurors may not constitutionally be excluded for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 1777, 20 L. Ed. 2d 776 (1968). We have construed this language to require, as a prerequisite to exclusion of a juror, an irrevocable commitment to vote against the death penalty, rather than a general objection. Smith v. Commonwealth, supra, 219 Va. at 464, 248 S.E.2d at 141; Lewis v. Commonwealth, 218 Va. 31, 35, 235 S.E.2d 320, 323 (1977). Whether such a commitment exists is an issue of fact to be resolved by the trial court, whose decision will not be disturbed on appeal unless we can say that the venireman's commitment against the death penalty was not "unmistakably clear". Smith v. Commonwealth, supra, 219 Va. at 465, 248 S.E.2d at 141.
We believe that the responses of the three veniremen whose exclusion is challenged by Coppola were sufficient to communicate an unmistakably clear commitment against the death penalty, and we hold that the trial court did not err in so finding.
II. Incidents of the Guilt Trial.
A. Testimony of Donna Mills.
Donna Mills was the only witness at Coppola's trial who described the preparation and execution of the plans to rob Mrs. Hatchell and who related the events which occurred after the crimes had been committed.
Mills testified that as the group proceeded to Newport News to commit the robbery, Coppola's wife, Karen, cautioned her not to mention anyone's name after she entered *803 the Hatchells' home. Mills further stated that at the motel room where the group met shortly before the crimes were committed Karen asked her whether she had "some makeup to put on Frank". Mills also testified that after the murder, when only she and Karen were together, "Karen said Frank asked her to buy him some new shoes". Coppola objected to the admission of these statements at trial and argues that they were inadmissible because of the provisions of Code § 19.2-271.2 which prohibit a wife from testifying against her husband in a criminal case without his consent.
Coppola relies upon dicta in McMillan v. Commonwealth, 188 Va. 429, 50 S.E.2d 428 (1948), that an extrajudicial statement made by one spouse "as such against the other is . . . inadmissible". Id. at 433, 50 S.E.2d at 430. But, in McMillan, three other cases were discussed, Allen v. Commonwealth, 171 Va. 499, 198 S.E. 894 (1938); State v. Kosanke, 23 Wash.2d 211, 160 P.2d 541 (1945), and State v. Reid, 178 N.C. 745, 101 S.E. 104 (1919), to the effect that where declarations of a wife are made at the request of the accused husband, or with his knowledge and consent, they are admissible. In such instances the extrajudicial statements are made by the wife as the husband's agent rather than as his spouse. We approve the rule that where the wife's extrajudicial statements are made with the actual or constructive knowledge and with the express or tacit consent of the husband, they are admissible in evidence against him.
Here, the first two statements related by Mills were made by Karen in the presence of Coppola and with his apparent knowledge and approval. While the third statement, that Coppola had asked his wife to purchase new shoes for him, was not made in Coppola's presence, Mills had previously testified that Coppola had told Karen, when all four conspirators were together, to "go get him another pair of shoes". So the subsequent statement by Karen merely repeated what Mills had already heard Coppola himself say. We hold that the trial court did not err in admitting the statements into evidence.
B. The hypothetical question.
Coppola called as an expert witness Dr. Robert Thrasher, a psychiatrist, who had observed Mills as she testified, for the purpose of answering a hypothetical question based upon a number of facts about Mills established during the trial. The question propounded was whether, assuming all the facts to be true, Mills had any personality disorder, and, if so, what were the characteristics of the personality disorder. The trial court pointed out that Coppola had adduced the testimony of two experts that Mills had an antisocial personality. Indeed, not only did Dr. J. C. Buchanan, a psychiatrist, and Dr. E. Maleski, a clinical psychologist, testify to this effect, but Dr. M. T. San Agustin, a physician, and Dr. J. C. Dimitris, a psychiatrist on the staff of Central State Hospital, also testified as defense witnesses that Mills was nervous and emotionally upset. The trial court asked what defense counsel expected to prove by the hypothetical question that had not already been shown. Counsel proffered that Dr. Thrasher would testify that "in his opinion, this lady, Donna Mills, cannot determine the truth, when she's testifying". The trial court refused to permit the hypothetical question to be asked, to which ruling Coppola objected.
It is well settled in Virginia that the credibility of witnesses and the weight to be given their testimony are questions exclusively for the jury. Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29 (1949); Johnson v. Commonwealth, 142 Va. 639, 640, 128 S.E. 456, 456 (1925). In any proper case, an expert witness may express his opinion upon matters not within the common knowledge or experience of the jury. Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978). However, expert testimony concerning matters of common knowledge or matters as to which the jury are as competent to form an opinion as the witness is inadmissible. Where the facts and circumstances shown in evidence are such that men of ordinary *804 intelligence are capable of comprehending them, forming an intelligent opinion about them, and drawing their own conclusions therefrom, the opinion of an expert based upon such facts and circumstances is inadmissible. Venable v. Stockner, 200 Va. 900, 904, 108 S.E.2d 380, 383 (1959); Strawderman v. Commonwealth, 200 Va. 855, 859, 108 S.E.2d 376, 379-80 (1959); Ramsey v. Commonwealth, 200 Va. 245, 249-52, 105 S.E.2d 155, 158-60 (1958).
The existence of a disorder in Mills's personality could have been the subject of a proper hypothetical question. However, this fact had already been established by the affirmative testimony of expert witnesses who had personally treated Mills. Hence, the hypothetical question was not designed to establish the existence of a personality disorder but was intended to elicit an opinion from Dr. Roberts concerning the veracity of Mills. From the manner in which the question was framed, relating specifically to Mills by name, and the concession made by Coppola's counsel as to the purpose of the question, it is clear that the expert witness was expected to testify that Mills's testimony could not be believed. We conclude that the trial court did not err in excluding the question as one peculiarly within the exclusive province of the jury.
III. The Sentence Proceeding.
A. Exclusion of Evidence.
1. Coppola complains of the trial court's exclusion of proffered testimony of Coppola's former wife, Alice Bridges, as to the adverse effect upon their two young sons of Coppola's arrest and prosecution. Under the applicable statute, Code § 19.2-264.4 B,[2] discretion is vested in the trial court to determine, subject to the rules of evidence governing admissibility, the evidence which may be adduced in mitigation of the offense.
It would be strange, indeed, if the children were not embarrassed and humiliated by the prosecution of their father for the heinous crime of capital murder. But we believe that evidence of such effect is irrelevant on the issue of mitigation. It is not analogous to any of the evidence specifically approved in the statute. The kind of evidence therein contemplated bears upon the record of the defendant and the atrociousness of his crime. Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, his commission of the crime, is admissible mitigating evidence for the jury to consider in determining whether the defendant will probably be a continuing serious threat to society, or whether his conduct in committing the murder was outrageously or wantonly vile, horrible or inhuman. But the effect of his incarceration upon relatives is not a mitigating circumstance for the jury to consider. We hold that there was no abuse of discretion by the trial court in excluding the evidence.
2. Coppola also argues that the trial court erred in refusing to admit into evidence the fact that Joseph E. Miltier had been convicted of the capital murder of Mrs. Hatchell and sentenced to life imprisonment. We disagree.
*805 This evidence was not admissible in mitigation of the offense under Code § 19.2-264.4, and the trial court did not abuse its discretion in refusing it as irrelevant. Under Code § 17-110.1 C our Court is required to consider and determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, but no such responsibility is imposed upon the jury in the trial court. The jury, in the sentencing phase of the trial, is required to consider evidence in mitigation of the offense relevant to the defendant's past record and the nature of his conduct in committing the crime. Evidence as to the result of another defendant's trial for the same crime is irrelevant to the determination by the jury of the appropriate punishment for the defendant whose sentence is being weighed.
B. Instructions.
Coppola contends that the trial court erred in granting Instructions 2, 3, and 4, which defined the terms "aggravated battery", "wantonly", and "vile", respectively. As we implied in Smith, supra, it is not imperative that the words used in the statute be defined in instructions, and we there construed "aggravated battery" to mean a battery which is more culpable than the minimum necessary to accomplish an act of murder. Id. 219 Va. at 478, 248 S.E.2d at 149.
The challenged instructions were not artfully drawn, but Coppola's counsel did not object to them as incorrect definitions. He objected only that defining the words of the statute would serve no purpose and inflame the jury. He cited no authority for this objection. Moreover, when the trial court offered to strike Instruction 4, broadly defining "vile", if the definition was incorrect, Coppola's counsel merely reiterated his objection that the definition was inflammatory. The objection on that ground is insufficient.
If the definitions were not incorrect, we believe that the trial court could properly give the instructions. The trial court retained discretion to determine the advisability of explicating for the jury certain legal terminology used in the statute. We cannot say that the trial court abused its discretion in deciding to assist the jury in this respect. Nor can we say that the definitions inflamed the jury. The challenged instructions defining the statutory terms "wantonly" and "aggravated battery" were represented to the trial court, without contradiction, as adhering very closely to the meanings of these words described in Black's Law Dictionary. But we do not pass here on the correctness of these definitions, either generally or as applied to the evidence in this case, because counsel did not raise that issue in the trial court, and we will not notice grounds that were not stated at a time when the trial court could consider them. Rule 5:21. The thrust of the objection was that no instruction defining the words was proper.
Coppola argues that the trial court erred in refusing his proffered Instruction D[3] because the statute, Code § 19.2-264.4 C, does not require that upon proof beyond a reasonable doubt of one of the two aggravating circumstances therein prescribed the jury must recommend the death sentence. But Instruction 1 given by the court followed the language of the statute without deviation. Consequently, neither the statute nor the instruction required the imposition of the death sentence upon proof of one of the aggravating factors. Moreover, the court gave another instruction that if, upon consideration of all the evidence, there existed a reasonable doubt as to any fact or conclusion the jury was required to find *806 before the death penalty could be imposed, the jury should recommend life imprisonment. We hold that the trial court did not err in refusing Instruction D.
C. Product of Passion or Other Arbitrary Factors.
Coppola reiterates his argument that the pretrial publicity prejudiced his trial. He says that this publicity, particularly that relating to his wife's testimony during the trial of Joseph Miltier, inflamed the jurors and caused the jury to impose the death sentence. We have heretofore in this opinion considered the assignments of error relating to pretrial publicity that was alleged to have prejudiced Coppola's trial and have found no error in the trial court's ruling. We find nothing in the record to substantiate Coppola's allegation that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.
D. Excessiveness.
Under Code § 17-110.1 C we are also charged with the responsibility of determining whether the sentence is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant".
While Coppola's brutal acts did not include rape, and were thus different from those revealed in Smith v. Commonwealth, supra, Waye v. Commonwealth, 219 Va. ___, 251 S.E.2d 202, cert. denied, ___ U.S. ___, 99 S. Ct. 2850, 61 L. Ed. 2d 292 (1979), and Mason v. Commonwealth, 219 Va. ___, 254 S.E.2d 116 (1979), they fully justified the jury's finding that his conduct was punishable by death under the provisions of Code § 19.2-264.2. His sentence is not disproportionate to the three death sentences affirmed by us in Stamper v. Commonwealth, ___ Va. ___, 257 S.E.2d 808 (this day decided), for triple murders committed during an armed robbery, or to the death sentence affirmed by us in Clark v. Commonwealth, ___ Va. ___, 257 S.E.2d 784 (this day decided), for murder for hire, where the death sentence of a codefendant was commuted by the trial court to life imprisonment.
Other jurisdictions have recently considered cases involving murder and armed robbery and have approved the death penalties therein imposed by juries. State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied, 433 U.S. 915, 97 S. Ct. 2988, 53 L. Ed. 2d 1101 (1977); Cooper v. State, 336 So. 2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 239 (1977); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied, 432 U.S. 911, 97 S. Ct. 2960, 53 L. Ed. 2d 1084 (1977); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976). Nevertheless, we believe that our consideration of similar cases should be limited generally to cases arising in Virginia under our revised death penalty statutes.
Except in the case of murder for hire, only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder under the provisions of Code § 18.2-31, as qualified by Code § 18.2-18.[4]Johnson v. Commonwealth, 220 Va. ___, 255 S.E.2d 525 (1979). In the present case, there is evidence that Coppola and Miltier jointly participated in the fatal beating of Mrs. Hatchell. There is also evidence that Miltier actively participated with Coppola in planning and committing the robbery during which the murder was perpetrated, and Donna Mills testified that Miltier believed that his blows *807 actually killed Mrs. Hatchell.[5] Since both Coppola and Miltier were convicted of the capital murder of Mrs. Hatchell, each was found by a jury to be an immediate perpetrator of that crime.
Coppola protests that his sentence is disproportionate to the sentences imposed in the cases bearing the greatest similarity to his case, namely, the sentences imposed upon his three confederates, Joseph Miltier, Donna Mills and Karen Coppola. Miltier was sentenced to life imprisonment. It was represented to us, and not contradicted, that Mills was sentenced to life imprisonment, and that Karen Coppola had not been sentenced when this appeal was argued. However, Mills and Karen Coppola cooperated with the Commonwealth. Mills testified against both Miltier and Coppola; Karen Coppola testified against Miltier. Their cooperation puts them in a different category from Miltier and Coppola and diminishes the similarity of the cases. Mills had entered into a plea bargain with the Commonwealth pursuant to which the Commonwealth had recommended to the trial court that she receive a sentence of life imprisonment on the capital murder charge.
Although Miltier may have believed that he delivered the final death blow to Mrs. Hatchell, most of his attention was directed to her husband, and Coppola dealt primarily with her. Only Coppola, with bloody socks on his hands, choked Mrs. Hatchell in Hatchell's presence. It was Coppola who told Hatchell that he would cut off one of her breasts if Mrs. Hatchell did not reveal where the money was hidden. Coppola was the one who ordered Mills to place a towel over Hatchell's head to prevent him from seeing what was being done. Miltier also struck Mrs. Hatchell, but Coppola returned several times to the room where she was held captive and, angry that he had not found any money, repeatedly beat her head against the floor. When Mills found and delivered a metal box to Coppola, he gave her the keys to one of the Hatchell's cars and ordered her to leave the house and get into the vehicle. The evidence leads to the conclusion that Coppola was not only a joint murderer of Mrs. Hatchell but that he was also the leader in organizing and directing the group to commit the armed robbery. His conduct towards Mrs. Hatchell, however, culminating in her death, appears from Mills's testimony to have been more violent and vicious than that of Miltier, and thus distinguishable.
Moreover, we do not believe that a codefendant is necessarily entitled to commutation of a death sentence because an equally culpable confederate, on substantially the same evidence, has been sentenced to life imprisonment. In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the Georgia death penalty statutes, similar to our own, requiring a bifurcated proceeding, were approved. The Supreme Court recognized that some degree of discretion inheres in our criminal justice process, noting particularly that the trial jury "may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict". Id. at 199, 96 S.Ct. at 2937.
A jury's decision not to recommend the death sentence where the evidence would support such a sentence does not change the applicable statewide standard.
"Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does *808 not create a substantial risk of arbitrariness or caprice." Id. at 203, 96 S.Ct. at 2939.
The Supreme Court approved the principle pronounced in Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829, 832 (1975) that under the similarity standard it would be assumed that no death sentence will be affirmed unless in similar cases throughout Georgia the death penalty has been imposed generally. Gregg, 428 U.S. at 205, 96 S. Ct. 2909.
We construe Gregg to permit a death sentence against one defendant to be upheld when a sentence of life imprisonment, or less, has been imposed upon a codefendant, provided the death sentence is in accord with the general statewide standard. A jury may decide to impose a death sentence, or life imprisonment, or a lesser punishment for a lesser included offense, or to acquit altogether. Accordingly, comparisons between the penalties imposed upon codefendants may be unproductive. A determination of proportionality of punishment requires only that a defendant's death sentence not be incommensurate with his conduct, measured by other jury decisions, on a statewide basis, involving similar conduct. If juries generally in this jurisdiction impose the death sentence for crimes comparable with Coppola's, then Coppola's death sentence is not excessive or disproportionate, although Miltier's punishment was fixed at life imprisonment. See Stamper v. Commonwealth, 220 Va. ___, 257 S.E.2d 808 (1979), (this day decided).
After reviewing the records, and considering the crime and the defendant, we hold that the atrociousness of Coppola's conduct exceeded that of Miltier, and that the sentence of death is not excessive or disproportionate to death sentences generally imposed by Virginia juries in horrifying crimes of a similar nature.
For the reasons assigned, we hold that there was no reversible error in the rulings of the trial court, and that the sentence of death was not excessive or disproportionate. Accordingly, we will affirm the judgment entered upon the jury verdict finding Coppola guilty of capital murder, and the sentences of death imposed by the trial court pursuant to the jury's recommendation.
Affirmed.
NOTES
[1] Code § 18.2-31. Capital murder defined: punishment.
The following offenses shall constitute capital murder, punishable as a Class 1 felony:
* * * * * *
(d) The willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon;
* * * * * *
[2] Code § 19.2-264.4 B provides as follows:
"B. In cases of trial by jury, evidence may be presented as to any matter which the court deems relevant to sentence, except that reports under the provisions of § 19.2-299, or under any Rule of Court, shall not be admitted into evidence.
"Evidence which may be admissible, subject to the rules of evidence governing admissibility, may include the circumstances surrounding the offense, the history and background of the defendant, and any other facts in mitigation of the offense. Facts in mitigation may include, but shall not be limited to, the following: (i) The defendant has no significant history of prior criminal activity, or (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance or (iii) the victim was a participant in the defendant's conduct or consented to the act, or (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired; or (v) the age of the defendant at the time of the commission of the capital offense."
[3] D
"The Court instructs the jury that it is your function to determine from the evidence and the instructions of the Court, whether the defendant will be sentenced to death or to life imprisonment, and, in that connection, you should not arbitrarily impose the death penalty upon the defendant even though you should find beyond a reasonable doubt those conditions without which the death penalty cannot be imposed. Even if you find those conditions, beyond a reasonable doubt in accordance with other instructions of this Court, it is your duty to consider a sentence of life imprisonment."
[4] Code § 18.2-18. How principals in the second degree and accessories before the fact punished.In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; provided, however, that except in the case of a killing for hire under the provisions of § 18.2-31(b) an accessory before the fact or principal in the second degree to a capital murder shall be indicted, tried, convicted and punished as though the offense were murder in the first degree.
[5] We have reviewed the record of Miltier's trial, Miltier v. Commonwealth, Record No. 790063, in which Donna Mills and Karen Coppola testified as witnesses for the Commonwealth. Mills testified that it was Miltier who conceived the plan to purchase flowers and deliver them to Mrs. Hatchell in order to gain entrance to the residence; that she saw Coppola hit Mrs. Hatchell with his fists and beat her head on the floor, and that Miltier hit her with his fist "but not like Frank did". The next morning, when Mills and Miltier read of Mrs. Hatchell's death Miltier said, "How do you think I feel? I know I'm the one that killed her". Miltier told Mills that "he hit her with all his might in the head".
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273 S.C. 509 (1979)
257 S.E.2d 719
G. T. SCOTT, Individually, Trustee or Nominee, Respondent,
v.
Royce CARTER, Greenville County Planning Commission, Steve Day as Greenville County Zoning Administrator, and Ed Gregory as Greenville County Codes Administrator, Robert T. Ashmore, E.A. Peddycord, John Burgess and W.S. Farmer, Jr., Individually and as members of the Class representing all property owners in Buxton Subdivision, Garden Terrace Community, Crestwood Drive Community, and State Park Road Community, Manly Drive, Dreamland Way and Hillandale Circle, Defendants, of whom Robert T. Ashmore, E.A. Peddycord, John Burgess and W.S. Farmer, Jr., Individually and as members of the Class representing all property owners in Buxton Subdivision, Garden Terrace Community, Crestwood Drive Community, and State Park Road Community, Manly Drive, Dreamland Way and Hillandale Circle, are Appellants.
21029
Supreme Court of South Carolina.
August 15, 1979.
*510 Rex Carter, of Carter, Philpot, Johnson & Smith, Greenville, for appellants.
Paul J. Foster, Jr., Greenville, for respondent.
August 15, 1979.
Per Curiam:
The action out of which this appeal arises was tried before the Honorable Frank Eppes, Circuit Judge, resulting in his order directing the administrative authorities of Greenville County to issue to the petitioner a building permit. The administrative *511 authorities have not appealed and are apparently ready to comply. The appeal is prosecuted by property owners adjacent to, or near, the land on which the petitioner proposes to build an apartment complex.
The essence of the appeal, as taken from appellants' brief, is the contention that the judge erred (1) in holding that the petitioner had a right to the issuance of a building permit and zoning certificate prior to a complete review of his application by the appropriate county authorities, and (2) in holding that the authorities were without authority to defer action on the application. These questions are amply discussed and properly disposed of in the order of the lower court, which shall be printed as follows:
ORDER OF JUDGE EPPES
This is a zoning matter. It came on to be heard pursuant to verified Petition and Rule to Show Cause issued March 31, 1978, served and filed the same date. The Petitioner in substance alleges that the administrative authorities of Greenville County are, without just cause, delaying the issuance of a zoning certificate and building permit for an apartment project on Crestwood Drive, Greenville County, South Carolina. He then seeks relief in two forms: one an Order restraining the authorities from any further delay in issuance of the documents, and the other, an Order requiring the issuance of the documents. In due time, the County authorities responded by Answer denying any delay, and further alleging that three remaining items were needed prior to the issuance of the documents, they being: (1) A completed satisfactory traffic study; (2) A completed satisfactory drainage study; and (3) A right-of-way to cross over a sewer line of Western Carolina Regional Sewer Authority. Prior to the hearing a number of surrounding landowners, individually and as a class, moved to be made parties to the action and answered, alleging basically a detrimental result to their land, if the apartment project was allowed to go forward.
*512 The hearing was held at 10:00 A.M. on Monday, April 10, 1978. Present were the four (4) named parties in the original action together with their counsel; also present were two (2) members of the class of intervenors together with their counsel, and further, David Austin, a witness from First Citizens Bank and Trust Company. At the outset, the Petitioner, through counsel, made an opening statement to the Court and then stated he did not oppose the intervention. The intervention of additional parties to an action is largely in the discretion of the Court. Robinson v. South Carolina Highway Department, 241 S.C. 137, 127 S.E. (2d) 286 (1962). I find that it is proper to allow the intervention and so rule. I further find that the intervenors are individuals and classes of landowners and members of Subdivisions adjacent to and near the location of the proposed apartment project.
The County then produced the three named Defendants who testified and from their testimony, I find that the application for a permit had been properly made on March 21, 1978, by Petitioner; that immediately thereafter, the Zoning Administrator referred the material out to among others, the Planning Commission. I find that on or about March 24, 1978, there was a Memorandum issued by the Greenville County Administrator which caused the three (3) Defendants to stop any further action until the entire question of zoning and rezoning of the area had been heard. I find that the Zoning Administrator normally processes an application and issues a certificate in ten (10) days; that there now remain according to the County Defendants four (4) things before the documents can be issued: (1) a completed satisfactory traffic study; (2) a completed satisfactory drainage study; (3) a right-of-way over the Western Carolina Regional Sewer Authority sewer; and (4) to remove the impediment caused by the County Administrators Memorandum stopping action. I further find from their testimony that the property in question is zoned RM, and *513 that that zoning classification includes an apartment project such as is presently in issue.
Thereafter, the Petitioner testified and also David Austin, Vice President of First Citizens Bank and Trust Company. I find from their testimony that First Citizens Bank and Trust Company has a valid contract to sell the property to G.T. Scott, Petitioner, and he, in turn, has a valid contract to purchase the property. I find that the property in question is thirteen (13) acres, more or less, and located on Crestwood Drive, and being noted on tax maps as 441-1-1, 441-1-1.1 and 445-1-3. The project is an apartment project known as Crestwood. I find that the efforts of G.T. Scott, as to this property, reach back to February, 1976, at which time he initially contracted for the property. I find that he has expended considerable moneys in furtherance of the project, to-wit: $68,000.00 to the architects for the designing phase; $2,500.00 for the down payment on the contract, and $9,000.00 for the funding processing fee for the project. The Plaintiff has expended a total of $79,500.00 as of the date of this hearing and has spent many months of his personal time pursuing the project as reflected herein. It appears, and I so find that the Plaintiff was relying upon the Zoning integrity as espoused by the County of Greenville, State of South Carolina, and to deny the Plaintiff a zoning certificate and/or building permit without objectionable grounds, which have not been shown as of the date of this hearing, would make a mockery of the zoning laws of the County of Greenville, State of South Carolina and denies this Plaintiff equal justice under the law.
The traffic survey has been completed and was even introduced into evidence. Some question was raised as to Crestwood Drive and ability to handle traffic and I find that the road is a 36-foot right-of-way, two lane State maintained road, and that an adjacent two lane road is handling 7,000 cars per day. The highest estimate of traffic on Crestwood Drive after the project completion is 1900 cars per day.
*514 Another question was raised as to the drainage plan being approved and I find that the plan has been in the possession of the County since March 21, 1978, and that even to the date of the hearing, there had been no objection raised as to the propriety of the drainage plan, and I find that it should have been reviewed within ten (10) days of the date of submission and that the County has had ample opportunity to review the plans prior to the hearing, and failing to object at the hearing, loses the right to.
As to the right-of-way over a sewer line, I find that the Petitioner has already contracted with and received letter approval from the sewer authority to go ahead with construction, and that any delay due to this would be without merit.
The Greenville County Zoning Ordinance adopted May 19, 1970, states in Paragraph 6:14, as follows:
Section 6:14 (formerly Section 6:15)
APARTMENT DEVELOPMENT
Plans for an apartment development shall be submitted to the Greenville County Planning Commission staff for approval. The plans should include the following data and any other reasonable information the Planning Commission staff may require in its investigation of the plans.
(A) The location and size of the site;
(B) Density of land use proposed for various parts of the site;
(C) The location and size of any roads within the apartment complex;
(D) The location of all parking;
(E) The location of all street lights within the complex;
(F) The location, size and type of recreation provided;
(G) The height of each structure in the development;
(H) Plan showing complete drainage of the entire site;
*515 In addition to the above information, the following will be required.
(A) A copy of covenants, grants, or easements or other restrictions proposed to be imposed upon the use of land, buildings, and structures including proposed easements or grants for public utilities.
(B) A schedule showing the proposed times for constructing the development.
I find no reference in the above section to a need for a traffic study or a need for a right-of-way over a sewer line. In any event, the Petitioner has duly submitted an application concerning the above, and I find that more than enough time has elapsed for the County to object to the issuance of the permit or certificate.
As to the stay issued by the County Administrator, I find that he is an arm of the Greenville County Council and its subcommittees. Section 9.9 of the same Zoning Ordinance reads, in part:
It is further the intent of this Ordinance that the duties of the County Council in connection with this Ordinance shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this Ordinance. Under this Ordinance, the County Council shall have only the duty of considering and adopting or rejecting proposed amendments or the repeal of this Ordinance, as provided by law.
I find no legal basis for the intrusion by County Council into the zoning certificate and building permit process. Indeed the above excerpt specifically speaks to the contrary. I therefore find the directive of the Administrator to be null and of no effect, as it relates to Petitioner's application for the documents. The other portions of the Memorandum remain unaffected by this ruling.
Two (2) landowners of surrounding land testified and indicated their opposition was based in substance on a devaluation *516 of their property if the project were to go forward. They also raised other issues, also irrelevant. I find that while the claims may be true, they have no bearing on the issuance of a building permit or zoning certificate. Thus, the Petitioner has duly applied for a zoning certificate and building permit, the County has had more than ample time to process same, and yet there is no substantial objection even at the hearing date, other than a further need to study material which should have been studied and resolved long ago. I find that the delay is to the detriment of the Petitioner, without just cause and prompted largely, if not exclusively, by the unjustified intrusion of the Greenville County Council. Petitioner is therefore entitled to relief. It is, therefore,
ORDERED, ADJUDGED AND DECREED:
(1) That the Greenville County Planning Commission, the Greenville County Zoning Administrator, and the Greenville County Codes Administrator be and they are hereby required to cease any further delay in the issuance of the zoning certificate and building permit for the subject property and
(2) Further, they are hereby Ordered to immediately issue a zoning certificate and building permit for the subject property.
IT IS SO ORDERED.
Additionally, the position is taken that the lower court erred in refusing to admit in evidence certain exhibits offered by counsel for the appellants. The inclusion of the exhibits would have made no difference in the result.
It is argued that the court erred in ordering that the answer of the administrative authorities (not submitted to the lower court) be included in the transcript. We are of the opinion that the lower court erred in directing that the answer, served after the order of the lower court was filed, be made a part of the record, and we have accordingly disregarded the same.
*517 The lower court order, as printed herein, is made the directive of this court.
Affirmed.
NESS, J., dissents.
GREGORY, J., dismisses.
NESS, Justice (dissenting):
I dissent, concluding the trial court erred in ordering the Greenville County zoning authorities to issue a building permit to respondent.
On March 20, 1978, the Greenville County Council commenced proceedings to rezone the subject property so as to prohibit multifamily dwellings. The following day, respondent Scott, with notice of the proposed rezoning, applied for a permit to construct a rent subsidized apartment complex on the property. At the time of application, respondent was not the owner of the property but had a contract to purchase it with a number of "out clauses." One of the clauses provided he was not obligated to purchase until he obtained a firm commitment from the Department of Housing and Urban Development for project mortgage insurance. When respondent applied for the building permit, he had not yet acted to obtain a firm commitment from HUD.
On March 24, 1978, the Greenville County Administrator, acting at the request of county council, directed that no permit be issued pending the outcome of the rezoning study. The testimony reveals that due to the complexity of the project, review of respondent's application had not been completed in several particulars by the time respondent instituted this action.
Respondent had failed to present to the county authorities sufficient proof that the sewer authority would permit a road to be built across its right of way, as shown by the plans. The Greenville County Planning Commission had requested the County engineer to evaluate the respondent's proposed *518 drainage plan, and the engineer's study was incomplete. Finally, a traffic study requested by the Planning Commission had not been reviewed by the zoning administrator.
At the conclusion of all the testimony, respondent's attorney requested the court to order the county officials to rule on the permit within a reasonable time. The trial court, however, disregarded that request and ordered the immediate issuance of the permit, without granting the officials time to complete their review of the proposed complex.
The sole issue presented on appeal is whether the trial court erred in ordering the immediate issuance of the permit prior to the county authorities completing their study. The majority, relying on the fact that the administrative officials have not appealed, violently assume that compliance is forthcoming and disregard the exceptions raised by appellants, property owners in the vicinity of the proposed apartment project.
Section 6:14 of the Zoning Ordinance for Greenville County permits the construction of apartment houses provided they meet the following requirements:
Plans for an apartment development shall be submitted to the Greenville County Planning Commission staff for approval. The plans should include the following data and any other reasonable information the Planning Commission staff may require in its investigation of the plans.
(A) The location and size of the site.
(B) Density of land use proposed for various parts of the site.
(C) The location and size of any road within the apartment complex.
(D) The location of all parking.
(E) The location of all street lights within the complex.
(F) The location, size, and type of recreation provided.
(G) The height of each structure in the development.
(H) Plan showing complete drainage of the entire site.
*519 In addition to the above information, the following will be required.
(A) A copy of covenants, grants, easements, or other restrictions proposed to be imposed upon the use of land, buildings, and structures including proposed easements or grants for public utilities.
(B) A schedule showing the proposed times for constructing the development.
Subsection (H) clearly requires that the proposed drainage plan be submitted to the Planning Commission "for approval." At the time of the hearing before the trial court, the drainage plan had not been approved, the traffic impact study was incomplete, and permission to construct a proposed road had not been obtained from the sewer authority. As approval of the drainage plan is specifically required by ordinance, I believe the commission was correct in refusing to issue a permit pending review of these items. In Rogers v. Mayor & Aldermen of Atlanta, 110 Ga. App. 114, 137 S.E. (2d) 668 (1964), the Court noted the importance of a traffic impact study to the issuance of a permit to construct an apartment complex in a residential area. "The fact that a traffic hazard or congestion might result from the location of (the project) has been held a valid ground for denying a permit." 137 S.E. (2d) at 672. Also see Galfas v. Ailor, 81 Ga. App. 13, 57 S.E. (2d) 834 (1950).
The trial court's reliance on the fact that respondent has incurred substantial expense in preparing this project is misplaced. Such action by a property owner does not create vested rights superior to the interest of the public in the valid exercise of the police power. Douglass v. City Council of Greenville, 92 S.C. 374, 383, 75 S.E. 687 (1912); Willis v. Town of Woodruff et al., 200 S.C. 266, 20 S.E. (2d) 699 (1940).
Moreover, this Court held in Whitfield v. Seabrook, 259 S.C. 66, 190 S.E. (2d) 743 (1972), that vested rights result only from good faith actions. In Whitfield, the Charleston *520 County Council on August 3, 1971, approved a zoning ordinance to be effective August 15, 1971. On August 4, 1971, the plaintiff applied for a permit to construct an apartment building in the area. Although a permit was granted, the plaintiff was informed that construction must commence prior to August 15th. The county revoked the permit when the plaintiff failed to commence construction by that date. In the ensuing lawsuit, the plaintiff claimed he had vested rights in the permit because he had commenced negotiations for the purchase of the property, had prepared detailed plans and specifications, and had expended monies for the purchase of materials, all prior to the adoption of the new zoning ordinance.
This Court concluded the expenditures for plans and materials could not have been made in reliance upon the building permit as they were made prior to its issuance on August 4, 1971, and that any expenditures after the permit was issued were made with knowledge of the impending zoning change and therefore could not create a vested right. We held that where the plaintiff had knowledge of the proposed zoning ordinance, he did not act in good faith in expending money in connection with the project. Similarly, here, vested rights could not have accrued in the respondent when he had notice of the proposed zoning change at the time he applied for a building permit.
As this equitable matter was heard before the trial judge alone, sitting without a jury, his factual findings are not binding upon this Court. We have jurisdiction to find facts in accordance with our views of the preponderance of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E. (2d) 773 (1976). In my opinion, the evidence in this case is insufficient to show any wilful delay by the responsible county authorities. The respondent, upon whom the burden of proof rested in the trial court, simply failed to prove that the Planning Commission or the zoning administrator unreasonably failed or refused to act on the *521 application. There is absolutely no evidence that the county engineer and the traffic engineer had even been informed of the proposed rezoning study. For this reason, the factual finding of the lower court to the effect that the delay was occasioned by the instruction of the county council is without evidentiary support.
Additionally, respondent argues that he did "introduce into evidence a letter from the Western Carolina Regional Sewer Authority which indicated that a right of way would be granted ." (Respondent's Brief, p. 17). This letter, at page 129 of the transcript deals primarily with the acceptance of waste water from the units. The question of constructing a road over a sewer line is discussed, but the discussion is only to the effect that the architect or engineer involved with the project should consider the problem and make plans for the protection of the pipe if the road was developed. The letter in no way constitutes an unconditional grant of a right to construct a road over the right of way.
I would hold that the lower court erred in finding that the consideration of the respondent's application for a building permit was delayed by the action of the county council. Rather, the evidence reveals that the respondent had not met the requirements of the Greenville County Zoning Ordinance and was not entitled to a building permit.
I would reverse since there was pending at the time of the application an ordinance of which the respondent had notice which would alter the zoning so as to prohibit apartment complexes. The respondent clearly has not acquired any vested right sufficient to defeat the police power of the county in protecting the public welfare of its citizens.
GREGORY, Justice (dismissing):
In my view the issue presented by this appeal has been rendered moot by events occurring subsequent to the filing of the order of the lower court.
*522 This matter came before the lower court on a rule to show cause issued March 31, 1978 pursuant to the verified petition of respondent Scott. In his petition Scott alleged that the Greenville County zoning authorities refused without justification to issue him a zoning certificate and a building permit. The zoning authorities filed a return to the rule to show cause in which they alleged that they had not had sufficient time to complete their review of Scott's applications.
The lower court permitted a group of private citizens to intervene answer Scott's petition and file a cross-petition against the zoning authorities.
The rule to show cause was heard on April 10, 1978 and the subject order of the lower court was filed on April 13, 1978. The intervening defendants served and filed a notice of intention to appeal on April 14, 1978. An Order of Supersedeas was issued by a member of this Court on April 17, 1978, and was continued by Order of the full Court dated May 15, 1978.
The zoning authorities did not appeal from the order of the lower court. On May 4, 1978, however, the zoning authorities filed an answer to the cross-petition of the intervening defendants, stating:
... [T]he Plaintiff-Respondent (Scott) has ... complied with all requirements of the Greenville County Zoning Ordinance and applicable building codes, and that these Defendants (zoning authorities) would therefore have issued such certificate and permit in this case except for the order of Supersedeas which was issued by this Honorable Court on April 17, 1978.
The majority opinion would affirm the order of the lower court finding that further delay was unjustified and requiring the zoning authorities to issue the necessary documents to Scott immediately.
The dissenting opinion of Justice Ness would reverse the order of the lower court and, in effect, remand the case to *523 the zoning authorities to complete their review of the proposed complex. As noted above, however, the zoning authorities have already completed their review and have determined that Scott is in full compliance with all requirements of the Greenville County Zoning Ordinance and applicable building codes.
Thus, whether we affirm or reverse the order of the lower court the same result will follow the Greenville County zoning authorities will issue the necessary documents to Scott.
Since a review of this case on its merits will not affect the outcome, I would dismiss the appeal on the ground the issue is moot.
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785 S.W.2d 834 (1990)
Bill GASS, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 09-88-314 CR, 09-88-315 CR.
Court of Appeals of Texas, Beaumont.
January 10, 1990.
*835 Gary W. Bunyard, Mark Morefield & Associates, Liberty, for appellant.
*836 Jerry E. Andress, First Asst. Dist. Atty., Liberty, for State.
OPINION
BROOKSHIRE, Justice.
The Appellant was charged with two offenses which occurred on separate occasions. One was indecency with a child; the second was aggravated sexual assault of a child. On the Appellant's motions the two cases were consolidated. The jury returned verdicts of guilty on each charge and assessed ten years confinement for the offense of indecency with a child and thirty-five years for the sexual assault. The complainant-victim was the granddaughter of Appellant. She was eight years old at the time of the offenses.
The Appellant in his brief recounts that the first offense took place in the upstairs bedroom of Appellant's home around June 15, 1986 when he exposed himself to his granddaughter, touched her genitals, and penetrated the genitalia of the victim with his genitals. About a month later a second offense was committed during which he again exposed himself to the same victim and asked her to place her hand upon his penis. This later event was witnessed by another granddaughter of the Appellant.
The second granddaughter reported the matter to an aunt. Upon an initial confrontation the Appellant refused to talk about the incidents. The next day, however, he admitted his guilt and apologized to the children and all parties concerned. In his brief the Appellant states that he had had problems with alcohol and had been drinking during both transgressions. He signed voluntary statements concerning each charged offense and began receiving counseling for his problems, including pedophilia.
The "Extraneous Offenses" Issue
The Appellant urges several points of error, the first one being that the trial court erred in allowing the State to introduce evidence of "extraneous offenses" during the guilt or innocence phase of the trial without producing a proper predicate.
The victim testified to other incidents of sexual abuse. The record reflects that the Appellant failed to specifically object initially at trial that no predicate had been laid for admission of the extraneous offense. The Appellant's argument, which he classified as a basic objection, was that he did not intend to cross-examine or impeach the victim as to the events that she had touched upon or testified about excepting only the allegation of penetration. Appellant took the position at trial that there was no necessity for the State to attempt to prove intent, motive, scheme or similar matters. The objection at trial, we conclude, does not comport with the error complained of on appeal. The point of error presented on appeal must comport with the objection raised at trial in order to preserve error. Paster v. State, 701 S.W.2d 843 (Tex.Crim.App.1985) cert. den'd 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 348 (1986), Buxton v. State, 699 S.W.2d 212 (Tex.Crim. App.1985) cert. den'd 476 U.S. 1189, 106 S. Ct. 2929, 91 L. Ed. 2d 556 (1986). This point we deem does not present anything for review.
The Exception to the Extraneous Offenses Rule When Small Children are Involved
Nevertheless, an important exception exists to the general rules governing extraneous offenses when those offenses involve sexual abuse or offenses against children of tender age. The victim was very young. Smith v. State, 719 S.W.2d 402 (Tex.App. Houston [1st Dist.] 1986, no pet.). Precedents have recognized an exception to the general rule which exception permits the admission of similar sexual offenses that occurred between the victim-complainant and the accused to shed light and reveal the circumstances surrounding the act which was indicted or charged against the accused. The exception also shows the unnatural propensities or disposition of the *837 accused. Another reason for such exception is to make the young child's testimony more plausible in light of the relationship of the parties. See Battles v. State, 140 S.W. 783 (Tex.Crim.App.1911). Johns v. State, 155 Tex. Crim. 503, 236 S.W.2d 820 (1951), stated that evidence of similar acts between the victim and the accused are admissible. A public policy has been established to protect very young children from sexual abuse.
The indictment charges Appellant with intentionally and knowingly causing the hand of S.B., a child younger than 14 years of age, to contact the defendant's penis. Also, the Grand Jurors alleged that Gass intentionally and knowingly, with the intent to arouse and gratify the sexual desire of said defendant, exposed his genitals to S.B. The second indictment alleged that Gass intentionally and knowingly caused a penetration; yet again as a latter part of Count 1 and in Count 2 of the second indictment, the Grand Jurors charged that Gass acted intentionally and knowingly. Furthermore, he acted intentionally and knowingly with an intent to arouse and gratify his sexual desire. Hence, unquestionably, in every situation the issue of "intentionally and knowingly" was a material, contested issue in the case. A defense was intoxication which allegedly diminished or destroyed the necessary intent or scienter. Hence, we think that the extraneous offenses fall within well established exceptions to the general rule. The extraneous offenses tended to show the context in which the principal criminal act occurred, to prove scienter, intent or guilty knowledge, to prove state of mind and to refute or rebut a defensive theory. See Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App. 1972); Wiggins v. State, 778 S.W.2d 877 (Tex.App.Dallas 1989, pet. ref'd).
Since the "intentionally and knowingly" was a material, contested issue the next inquiry is whether the extraneous offenses were relevant to the material issue of "intentionally and knowingly". The relevancy is determined from the doctrine of chances. This doctrine of chances has been defined as an instinctive recognition of those logical, deducible processes which eliminates or lessens the element of a possible innocent intent by simply multiplying occurrences arriving at the same result until the reasonable mind perceives that an innocent intent cannot explain away all of the offenses. The reasonable human mind applies an instinctive and logically deducible process of reasoning to this conclusion: that an unusual and abnormal element such as the lack of intent or innocent intent might conceivably be present in one instance or occurrence; but that the more frequent similar instances occur and like offenses take place with similar results, then the reasonable mind ascertains the necessary relevancy of guilty intent. We think the reasonable trial judge ruled correctly. See Garza v. State, 715 S.W.2d 642 (Tex.Crim.App. 1986). Hence, his rulings were proper and could not be considered to any degree as an abuse of discretion. Thus the trial court's rulings and decisions will not be disallowed on appeal. Templin v. State, 711 S.W.2d 30 (Tex.Crim.App.1986). Also, it must be borne in mind that the State has the burden to prove its case beyond a reasonable doubt to obtain a conviction. And the State has the right to discharge this duty and burden with approved advocacy and permitted zeal.
The test for admissibility has changed. The plain language of Rule 403 shifts the focus somewhat from the test enunciated in Williams v. State, 662 S.W.2d 344 (Tex. Crim.App.1983) and its progeny. The approach under the present Rule 403 is to admit relevant evidence unless the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice to the defendant.
We must first determine if the extraneous offense is relevant and, then, if its probative value is not substantially outweighed by unfair prejudice. TEX.R. CRIM.EVID. 403. This analysis is for the trial judge in the first instance and, absent a clear abuse of discretion, will not be disturbed on appeal. Templin v. State, *838 supra. See also Pleasant v. State, 755 S.W.2d 204 (Tex.App.Houston [14th Dist.] 1988, no pet.); Cole v. State, 735 S.W.2d 686 (Tex.App.Amarillo 1987, pet. granted). Point of error one is overruled.
The Lack of an Efficacious Objection At the Punishment Phase
Next Appellant complains the trial court erred in allowing the State to introduce into evidence certain allegedly inadmissible "extraneous offenses" against the accused during the punishment phase of the trial. Procedurally, the State at the punishment phase simply reoffered the evidence that had been admitted during the guilt phase of the trial. The trial court inquired of Appellant's counsel whether there were any objections to the entire reoffer. The response was, in substance, that the objections that had been previously made were renewed. No specific objection was voiced. The trial court stated that the court did not recall what they were. In the state of this record, we deem that there is nothing for appellate review; an objection must be timely made and the objection must state with specificity the grounds upon which the objection rests. A general objection is equivalent to no objection at all. McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App.1984). The objection must be reasonably specific and must be reasonably accurate so as to give fair notice to the trial court and express an intelligible basis upon which the trial judge can make an informed ruling. Carlos v. State, 705 S.W.2d 359 (Tex.App.Beaumont 1986, pet. ref'd). Simply put, the trial judge was not given fair notice; the trial court had no intelligible basis upon which to make an informed, correct ruling. Two is overruled.
Point of error three avers that the trial court erred in admitting certain allegedly "remote extraneous offenses" during the punishment phase. One J.B., step-son of Appellant, was called as a reputation witness. This witness said that the Appellant's reputation for being a peaceful and law-abiding citizen was bad. J.B. was the State's witness. On cross-examination J.B. was asked if he had made a statement that he would do anything he had to do to see the Appellant put in prison. J.B. admitted that he had made such a statement, but denied that he would commit perjury. Then there was an attempt made to impeach J.B.'s testimony by eliciting information that the motive for so testifying was based on financial difficulties between J.B. and his own mother and step-father. There was a suggestion that there was an ongoing family feud involving ill-feelings involving financial matters. On redirect examination J.B. testified that he was motivated to testify truthfully and a basis of his testimony was the fact that he himself had been sexually abused on several occasions in the past when he was a child and lived in the home of the Appellant. The trial judge, we think correctly, ruled that the door had been opened to this evidence. The prosecution was rebutting the defense's attempted impeachment. No error was committed. See TEX. R.CRIM.EVID. 612(b). Three is overruled.
The Criminal Evidence Rule 405(a) Question
Point of error four argues that certain witnesses testified as to their personal opinions of the Appellant as opposed to their opinion of his reputation in the community in which he lived. The State proffered two witnesses for the purpose of testifying as to the character of the Appellant. These witnesses were questioned concerning their qualifications to give evidence on the relevant subject matters out of the presence of the jury. Each of the witnesses later on in the presence of the jury testified that in their opinions Appellant's reputation for being a peaceful and law-abiding citizen was bad.
TEX.R.CRIM.EVID. 405(a) provides in substance that evidence of character or trait of character of a person is admissible proof in certain cases. This proof may be made by testimony as to the accused's reputation *839 or by testimony in the form of an opinion. The rule took effect September 1, 1986. Rule 405(a) in part provides that in order for a witness to be competent concerning the character or trait of character of an accused, that witness must have been substantially familiar with the reputation of the accused. We think one of the witnesses who had known the Appellant for fifteen years or more was qualified under Rule 405(a). The other witness had known the Appellant since he (the witness) was six years of age and had lived in the Appellant's home until age seventeen. No error is demonstrated.
Appellant's next point of error advances and argues that the exclusion of certain defense testimony created error. The excluded defense testimony was said to be relevant to the Appellant's psychiatric state of mind and prognosis. This testimony was proffered during the punishment phase. This point of error was multifarious. Admonitions and cautions have been pronounced on several occasions that multifarious points of error simply fail to present anything for review. Brown v. State, 657 S.W.2d 117 (Tex.Crim.App. 1983); Brooks v. State, 642 S.W.2d 791 (Tex.Crim. App.1982).
Moreover, we think the Appellant under this duplicitous or multifarious point of error did not preserve or present the necessary evidence making the point eligible for appellate review. One caseworker, a witness, testified that she had not discussed Appellant's sex problems with him and that the treatment given by her was not for Appellant's sex problems, if any. This witness was a nurse who testified that she was involved in certain alcohol treatment programs. The nurse was neither a psychologist nor a psychiatrist nor a medical doctor. We perceive the trial court properly sustained the objection leveled by the State. Dunnington v. State, 740 S.W.2d 896 (Tex.App.El Paso 1987, pet. ref'd).
As to the excluded testimony of the other witness, the record reflects that the second witness worked in the field of psychotherapy. The Appellant was permitted to introduce testimony that he was participating in a program designed for sex offenders. Some of the evidence was presented before the jury. We determine point of error five lacks merit and the same is overruled.
The sixth point of error maintains that the indictment should have been dismissed simply because prosecution under TEX.PENAL CODE ANN. sec. 22.021 (Vernon 1989) is unconstitutional. We disagree. The Appellant's main attack is that the State of Texas has no legitimate interest nor rational basis for prescribing two penalties for the same offense. Appellant avers that it was improper to grant to the district attorney absolute discretion in seeking whatever conviction the district attorney selects. Appellant argues that such a grant of power is both arbitrary and unconstitutional. Hence, this prosecution should be dismissed. The reasonable, rational distinction in the legislation is based on age; the distinction is constitutional because of the very young, impressionable age of the victim.
A further statement in Appellant's brief is that prosecuting the Appellant under TEX.PENAL CODE ANN. sec. 22.021 (Vernon 1989) violates his due process rights under TEX.CONST. art. I, sec. 13. Furthermore, the Appellant says his due process rights under the Fifth Amendment and the Fourteenth Amendment to the United States Constitution and TEX. CONST. art. I, sec. 19 have been violated. The record fails to demonstrate that a motion that these rights were violated was presented to the trial court.
The Supreme Court in State v. Corpus Christi People's Baptist Church, 683 S.W.2d 692 (Tex.1984) wrote that each sovereign state of the Union has a right and a duty to protect its minor children. Classifications based on age in a statute governing offenses, involving deviant sexual intercourse with a child of very young age, furthers the State's legitimate, reasonable interest and concern in protecting minor *840 children of tender age. We hold the State's interest bears a fair and substantial relationship to the objects that the legislature had sought to accomplish and protect. We hold there was no violation of accused's equal protection rights or his due process rights. See and compare Wallace v. State, 688 S.W.2d 568 (Tex.App.Beaumont 1984, pet. ref'd).
After considering the Appellant's points of error, we overrule each one. The judgment and sentence of the trial court is affirmed.
AFFIRMED.
BURGESS, Justice, concurring and dissenting.
I concur in the affirmance of the guilt portion of the trial. While I agree that the extraneous offense between appellant and the victim was admissible, I disagree there remains an exception to the extraneous offense rule to show the un-natural propensities or disposition of the accused. Boutwell v. State, 719 S.W.2d 164 (Tex.Crim. App.1985).
I dissent to the affirmance of the punishment phase. I do not believe the extraneous offense between appellant and his step-son was admissible. In the first place, testimony concerning reputation must not be based solely upon personal knowledge of misconduct, but also how other persons perceive appellant. Wagner v. State, 687 S.W.2d 303 (Tex.Crim.App.1984). Therefore, I do not believe the door was opened in the attempted impeachment of the step-son. Even if it was, the rules regarding extraneous offenses still apply. This is to say there must be the balancing test between relevancy and prejudice. The prejudice of evidence of a similar sexual offense substantially outweighs the relevance of a twenty-three-year-old incident.
There was an additional error in the punishment phase. Two other reputation witnesses were allowed to testify. The testimony was their opinion of appellant not what his reputation was in the community. Neither witness indicated they had discussed appellant's reputation with other members of the community. Thus, their testimony was not admissible. See Hernandez v. State, 767 S.W.2d 902 (Tex.App. Corpus Christi 1989, pet. granted); see also Green v. State, 679 S.W.2d 516 (Tex. Crim.App.1984). Because of these errors, I would remand for a new trial on punishment. TEX.R.APP.P. 81(b). In view of the majority's total affirmance, I respectfully dissent.
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257 S.E.2d 671 (1979)
Harland Clayton PHILLIPS
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY.
No. 7818SC1030.
Court of Appeals of North Carolina.
September 18, 1979.
*672 J. W. Clontz, High Point, for plaintiff-appellant.
Johnson, Patterson, Dilthey & Clay by Grady S. Patterson, Jr., Raleigh, for defendant-appellee.
*673 HARRY C. MARTIN, Judge.
Did the trial court commit reversible error either in denying plaintiff's motion for summary judgment, in granting Universal's motion for summary judgment, or in denying plaintiff's motion to amend his complaint? We answer this question in the negative and therefore affirm.
In discussing the standard for summary judgment as fixed by Rule 56(c) of the North Carolina Rules of Civil Procedure, the North Carolina Supreme Court has succinctly stated: "Rule 56 is for the disposition of cases where there is no genuine issue of fact and its purpose is to eliminate formal trials where only questions of law are involved." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). In reviewing the criteria for the grant of Universal's motion for summary judgment, we find that the court was not in error.
The deposition of plaintiff and certain exhibits established that Universal was prompt in providing the information which plaintiff requested, contrary to his allegation that his efforts to find out why his premium had increased had been ignored.
Furthermore, the insurance policy was not false in its notation that Uninsured Motorist Coverage had been waived. Plaintiff's letter of 2 September 1977 to Universal was clearly a separate written rejection of Uninsured Motorist Coverage. ". . . I expressly waived this coverage and I don't want it now!"
Finally, no genuine issue of material fact was presented as to the FS-4 statement. The question was whether Universal sent the notice of termination to the Department of Motor Vehicles deliberately, with total and reckless disregard for plaintiff's rights, or whether the notice was sent because of a clerical error. The affidavit of Universal's regional sales manager maintained that the FS-4 statement was simply a clerical error. And, when asked if plaintiff had any evidence upon which to base his "statement that these things you have complained of, about the company, were harassments rather than errors on the part of someone working for the company?" plaintiff responded, in his deposition, "No."
In addition, plaintiff totally failed to produce any evidence of damages. To the contrary, by his own admissions, he sustained no loss.
To be entitled to compensatory damages plaintiff must show that the damages claimed are the natural and probable result of the acts complained of; he must also show the amount of loss with reasonable certainty. Norwood v. Carter, 242 N.C. 152, 87 S.E.2d 2 (1955). "`However, where actual pecuniary damages are sought, there must be evidence of their existence and extent, and some data from which they may be computed.'" Id. at 156, 87 S.E.2d at 5. Implicit within this principle of law is the fact that plaintiff must have suffered some loss, no matter how minimal. In this case, plaintiff admitted in his deposition that he had sustained no monetary damages whatsoever. In response to questions concerning his monetary loss and compensatory damages, plaintiff answered that his only monetary loss had been a thirty-dollar fee for filing his lawsuit. He further admitted that he had sustained no loss to his motorcycle. It had neither been involved in an accident nor damaged in any way. There were absolutely no items of damage the plaintiff could point to. In other words, plaintiff claimed $4,000 in compensatory damages for losses that did not exist.
Plaintiff also claimed punitive damages of $40,000 in his original complaint. Punitive damages are awarded above and beyond compensatory damages in proper instances. Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). Punitive damages may not be awarded where plaintiff is not entitled to recover any compensatory damages. Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). It follows that because plaintiff sustained no actual compensatory damages, he is not entitled to punitive damages.
Plaintiff's argument that the court erred in denying his motion for leave to file an amended complaint is without merit. Since plaintiff's proposed amended complaint essentially *674 asked for $100,000 punitive damages instead of $40,000 demanded originally, it was not prejudicial for the court to disallow the amendment asking for $100,000 punitive damages when it had dismissed the original request for $40,000.
The orders and judgment of the trial court are
Affirmed.
MORRIS, C. J., and PARKER, J., concur.
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80 S.E.2d 442 (1954)
STATE
v.
LOVELESS.
No. 10617.
Supreme Court of Appeals of West Virginia.
Submitted January 19, 1954.
Decided March 9, 1954.
*443 Capehart, Miller & Capehart, Welch, for plaintiff in error.
John G. Fox, Atty. Gen., Robert E. Magnuson, Asst. Atty. Gen., for defendant in error.
BROWNING, Judge.
Melvin Loveless was indicted at the May, 1953 Term of the Circuit Court of Logan *444 County on two counts: Murder, and accessory before the fact of murder. Subsequently, on June 8, 1953, at the same term, a special grand jury met and indicted Loveless as an accessory before the fact of murder. The case was set for trial on June 15, 1953, upon a plea of not guilty, and on that day a written motion for a continuance was filed, assigning as grounds: (1) The hostile attitude of the court at that time due to the fact that at a previous trial of another involved in the murder, a witness, Beatty, in whose home the offense was committed, assaulted one of the attorneys for the defense; (2) that said Beatty would be a witness at the trial and should have time to cool off; (3) that newspaper articles had been highly prejudicial to Loveless; (4) that trial was set for one week after the return of the June 8 indictment, which did not allow a reasonable time in which to secure the presence of witnesses; and (5) counsel had had no opportunity to consult or talk to the persons theretofore tried or who had pleaded guilty to the same offense. The motion then set out that there had been no other continuance on behalf of Loveless, and recited several newspaper articles which were alleged to be highly prejudicial and inflammatory.
The motion for a continuance was overruled, the case proceeded to trial, and a verdict of guilty, without recommendation, was returned by the jury. Judgment was entered on the verdict, sentencing the defendant to be executed, to which this Court granted a writ of error and supersedeas on September 1, 1953.
Numerous errors have been assigned as grounds for reversal, but in the briefs and argument, counsel have apparently abandoned all except the following: (1) The court erred in overruling defendant's motion to quash the indictment; (2) the court erred in overruling defendant's motion for a continuance; (3) the court erred in giving to the jury State's Instruction No. 2; (4) there is a fatal variance between the indictment and the evidence introduced by the State; (5) the verdict of the jury required the imposition of a heavier penalty upon the defendant as an accessory before the fact than was imposed upon the principals; and (6) the court erred in not properly instructing the jury as to the effect of its verdict should it find the defendant guilty of murder in the first degree.
The defendant relies upon the court's charge to the grand jury as reported in the press to sustain the first assignment, but this record does not disclose that such a motion was made to the trial court, nor was the point assigned as error in the motion for a new trial. The question can not be raised for the first time in this Court, inasmuch as an accused waives secondary defects in an indictment when neither demurrer nor motion to quash is interposed. However, he does not thereby waive primary defects therein, that is, he does not waive the objection that the facts stated do not constitute an offense, but that point is not urged by counsel, and an examination of the indictment in this case shows that it clearly meets the requirements of the Constitution that the defendant be advised therein of the character and nature of the accusation against him.
On the morning of defendant's trial, his counsel submitted to the court a written motion for a continuance. A discussion of this motion and assignment of error as to the court's ruling thereon requires a more detailed recitation of the facts. The crime for which the defendant was convicted was committed on the morning of April 29, 1953, and at the regular term of the Logan County Circuit Court, which convened on May 12, 1953, Albert K. Puckett, Douglas Eugene Sherman, James R. Jones and Charles Edward Ford were indicted as principals, and the defendant was indicted both as principal and accessory before the fact to the murder. A sixth man, Davis Jefferson Williams, apparently also was indicted by the regular grand jury, but whether as a principal or an accessory is not clear from this record, he having been committed to an institution, and has not yet been arraigned. On the 15th day of May, trials were set for those indicted for the Reed murder, the date of defendant's trial being fixed for May 28, subsequent to all the others. *445 Thereafter, and prior to the 28th, Jones and Ford were tried jointly by a jury and convicted of murder in the first degree with a recommendation of imprisonment, and Puckett and Sherman subsequently pleaded guilty to murder in the first degree, and all four were sentenced to a term of life in the penitentiary. In view of alleged contradictory statements made by the four men, whose cases had already been disposed of, the prosecuting attorney requested the court to convene a special grand jury for the purpose of re-indicting Loveless. Such a special grand jury was called for June 8, 1953, and an indictment was returned against the defendant similar to the previous one, but different in that an additional person was named as being a principal in the murder. The written motion recites, in support of the defendant's contention that a hostile atmosphere existed against him, an altercation that occurred at the trial of two of the defendant's alleged accomplices during the same term of court between Nelson Beatty, in whose apartment the murder took place, and Ira P. Hager, an attorney of Logan, and of defense counsel in that case. The motion states that Hager was assaulted by Beatty during the trial, and that when Hager rushed into the courtroom to report the altercation that there was a stampede of spectators in the courtroom, and officers were required to draw their revolvers to restore order. The principal reliance for a continuance, however, is based upon several newspaper articles which had appeared in the Logan Banner, a daily newspaper with general circulation in Logan County; The Charleston Gazette, likewise a daily newspaper with a large circulation in that county; and the Bluefield Daily Telegraph, which it was alleged had a small circulation in certain sections of the county. Shortly before the date of defendant's trial, an article of May 28 in the Logan Banner gave considerable details of the opening of the trial on that day of Ford and Jones. Reference is made to the fact that "four other men implicated in the holdup-murder will follow today's trial. They are Melvin Loveless, Charleston numbers operator, who is reported to be the instigator of the crime, * * *." The article related in some detail the opening statement to the jury by the prosecuting attorney in which the defendant Loveless was depicted as the leader of the group of men charged with the offense. Mr. D. Boone Dawson, also of counsel for the defense in that case, was quoted as telling the jury that: "* * * Loveless had been planning the robbery for sometime and that he was familiar with Beatty's habits. He added that Loveless contacted Puckett and Williams in Martinsville, Virginia, and then asked Ford and Jones to join in the proposed robbery. He said the two young men on trial today got into the thing before they knew what they were getting into and that when things turned out as they did there was nothing for them to do but to tell the truth."
An article from the Charleston Gazette of June 9, under an associated press heading, referring to the re-indictment of the defendant, said: "* * * Six men, including Loveless, were rounded up within a few days of the slaying. Codefendants of Loveless, identified by Mayor John T. Copenhaver of Charleston as a numbers racketeer, said he organized the robbery in the belief that Beatty had $45,000 in the apartment. * * *"
An article from the Logan Banner, under date of June 8, and under a headline which stated: "Special Grand Jury Convenes Murder Indictment Is Sought By State.", quoted excerpts from the judge's charge to the jury:
"`Some have been tried,' the judge said, referring to five other men who were indicted by the regular session of the grand jury in connection with the Reed case, `and some have pleaded."
"`It is imperative that these cases be completed this term of court.' Judge Chambers added. `I have called this special grand jury in order to offer the man a speedy trial. I believe that a man should have a trial as soon as possible.'"
The article further states that the judge told the jurors that if the prosecuting attorney *446 had other cases to present they should consider them and remain in session as long as it was necessary to complete the work that was to be done. An article of similar import was quoted from the Bluefield Daily Telegraph.
The prosecuting attorney produced seven witnesses, residents of different sections of Logan County, who orally testified that they had neither heard nor observed anything to indicate that the public generally was inflamed or prejudiced against the defendant to the extent that he could not get a fair trial. At the end of this testimony, the defendant, by counsel, orally asked the court to consider one additional ground in support of the written motion for a continuance. Counsel informed the court that deputy sheriffs were stationed at the two entrances to the courtroom, and that they were searching "or pet (sic) down each of the men spectators and witnesses who come in, and search the pocketbooks of the women spectators, and this is done in view of the assembled jurors, and indicates to some degree the state of tension and uneasiness which surrounds this trial." The court stated upon the record that the altercation between Beatty and Hager was a personal one with reference to some remark Hager had made during argument of the former case, and that, although some commotion was created in the courtroom when Hager announced in the presence of the crowd that he had been assaulted, shortly thereafter the courtroom was settled and the trial proceeded. The court further stated that it did not order the searching of spectators as they entered the courtroom, but that it had instructed the sheriff to keep the aisles and halls clear so that the trial could be carried on in an orderly manner. The judge said that he assumed that the reason the sheriff was searching the people as they entered the courtroom was because the court had received a letter "from some `crack pot' containing a warning or threat, not against the defendant at bar, but against the Court or officials of the court, if anybody, advising him not to try the Loveless case on Monday, saying any other day would be O.K." The court said further "that is perhaps the reason the sheriff is taking the security measure to see that the Court, counsel, witnesses or anybody are not shot in the court room. The Court feels there is no danger." The motion for a continuance was overruled.
Counsel for defendant rely upon the case of Delaney v. U. S., 1 Cir., 1952, 199 F.2d 107, 113, in support of their contention that it was reversible error not to grant a continuance upon the showing made. In that case the Circuit Court of Appeals of the 1st Circuit reversed the conviction of a former collector of internal revenue who was indicted and tried upon charges that he had received payment to influence his decision and action regarding the collection of income taxes, and for making false certificates of the discharge of tax liens, upon the ground that the defendant had made a proper showing for a continuance. In the Delaney case, subsequent to the indictment, and prior to the trial, a congressional investigating committee conducted public hearings concerning defendant's activities. These hearings received nation-wide publicity. The court in setting aside the conviction and awarding a new trial said: "This is not a case of pre-trial publicity of damaging material, tending to indicate the guilt of the defendant, dug up by the initiative and private enterprise of newspapers. Here the United States, through its legislative department, by means of an open committee hearing held shortly before the trial of a pending indictment, caused and stimulated this massive pre-trial publicity, on a nationwide scale. * * *" No decision of this Court can be found involving the precise ground for a continuance offered in this case, although the question has been dealt with often upon a motion for change of venue. The defendant did not ask for a change of venue, stating in the motion that he had no reason to believe that he could not get a fair trial in Logan County at the succeeding term of the court, but that for the reasons hereinbefore stated, he could not get such a trial at the time the case was to be heard.
The defendant relies upon information contained in newspaper articles and the oral *447 statement regarding the searching of courtroom spectators to sustain his motion for a continuance, and also relies upon statements alleged to have been made by the court, subsequently quoted in newspaper articles for purposes other than a continuance. There is no further showing in the record as to what transpired upon the prior days of the term of court when the cases of the four alleged accomplices were disposed of. The statement attributed to the Circuit Judge by the Logan Banner article of June 8, heretofore quoted, wherein he was alleged to have stated that it was imperative that the cases arising out of the murder of Sarah Reed be completed at that term, and that he was calling a special grand jury to offer the man a speedy trial, as he believed that a man should have a trial as soon as possible, can not be considered upon defendant's Assignment of Error No. 1, but only upon the question of whether or not a sufficient showing had been made for a continuance.
On June 8, when the special grand jury was convened and instructed by the court, there was no reason for the defendant or his counsel to be present, and the court's charge to the jury, if thereafter reduced to writing, is not a part of this record. It is presumed that if the statements attributed to the court were made to the special grand jury at that time, that the venire of petit jurors then in attendance, and from which a panel was later selected to try the defendant, was excluded from the courtroom and did not hear the remarks attributed to the court. It is not necessary to speculate upon the view that this Court might take upon this assignment of error if the record disclosed that the alleged statements of the court to the special grand jury were made in the presence of the venire of petit jurors. The record is silent upon that matter. Furthermore, the record does not disclose the interrogation of the panel of petit jurors upon their voir dire. Again, we can only presume that a panel of qualified jurors was selected, and that counsel for the defendant had an opportunity at that time to inquire as to what effect, if any, the newspaper articles and prior proceedings involving the other alleged accomplices of the defendant, had upon the prospective jurors.
"It is a well settled rule, and one already stated previously in this title, that a motion for a continuance is addressed to the sound, but not arbitrary, discretion of the court under all the circumstances of the case, and that the appellate court will not reverse a judgment or decree because of the action of the lower court on such motion, unless the action is plainly erroneous. Abuse of discretion and prejudice to the complaining party are essential to reversal. But the appellate court will review and reverse the action of an inferior court, if, in the exercise of its discretion, it has harshly or unjustly refused a continuance, especially where there is nothing in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade and not to prepare for it." 4 M.J., Continuances, § 50. State v. Lucas, 129 W.Va. 324, 40 S.E.2d 817, and State v. Whitecotton, 101 W.Va. 492, 133 S.E. 106. Also, in State v. Alie, 82 W.Va. 601, 96 S.E. 1011, 1013, this Court said: "* * * A motion for a continuance is always addressed to the sound discretion of the court. Of course, this discretion is one not to be abused; but, before this court will reverse a judgment because of the refusal to grant a continuance it must affirmatively appear that the party seeking it was injured thereby. * * *" The defendant has not shown by this record that the trial court abused its discretion in denying the motion for a continuance, and, therefore, its ruling upon that point will not be disturbed.
In the giving of State's Instruction No. 2 by the court, the jury was not erroneously instructed. The instruction reads as follows:
"The Court instructs the jury that an accessory before the fact is one who is absent at the time of the actual perpetration of the crime, but who procures, counsels, commands, incites or abets another to commit the crime.
*448 "And, you are further instructed that the accessory need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which, in the ordinary course of things, was the natural or probable consequence of the crime that he procured, advised or commanded, although such consequence may not have been intended by him."
This instruction clearly and properly defines an accessory before the fact. The defendant objects to the instruction principally because of its use of the word "abet" contending that the word indicates that the defendant was present at the commission of the alleged crime, and, therefore, was a principal. The word is defined in Black's Law Dictionary, Third Edition, as follows: "To encourage, incite, or set another on to commit a crime. This word is always applied to aiding the commission of a crime. To abet another to commit a murder is to command, procure, or counsel him to commit it, * * *."
The defendant contends that there is a fatal variance between the indictment and the evidence introduced by the State to sustain it because each of the principals who testified at the trial denied that he fired the shot which caused the death of Sarah Reed, and no one testified as to who fired such shot. The evidence shows that Sarah Reed fired one shot through a latched screen door, and that thereafter approximately eleven shots were fired by the four members named as principals in this indictment, and it is not denied by the principals that several shots were fired by them. The defendant does not contend that there was not sufficient evidence offered by the State to support the verdict, and there is no assignment of error upon that point. There was sufficient evidence presented by the State from which the jury could have believed, beyond all reasonable doubt, that, pursuant to a plan conceived by the defendant, he and the other five men traveled to Logan on the night of the crime for the express purpose of burglarizing the Beatty apartment; that the party stopped a short distance from Logan and the defendant, using one of the two cars in which they were traveling, made a reconnaissance to ascertain if all was clear at the scene of the subsequent crime, and upon returning, reported such to be; that the defendant remained at that place while the other five members of the group proceeded to the Beatty apartment where the robbery took place, and Mrs. Reed was killed; and that these five men returned to the place where the defendant waited, and all traveling in two cars returned to the Loveless Hotel in Charleston where the fruits of the robbery, amounting to six hundred dollars, were distributed between the six persons.
While it is true that there can be no accessory to a crime not committed by a principal, as this Court held in State v. Lilly, 47 W.Va. 496, 35 S.E. 837, this evidence clearly, and beyond all reasonable doubt, establishes that one of the four principals fired the shot which killed Sarah Reed, and, inasmuch as her murder occurred during the commission of and resulting from the robbery, the principal participants were equally guilty of murder in the first degree, and the evidence fully supported the charge against the defendant of being an accessory before the fact of murder. The State having proved that the death of the deceased resulted from a shot fired by one of the principals, it was immaterial which of the four actually fired the fatal shot.
There is no merit to the contention that the verdict of the jury mandatorily required the imposition of a more severe penalty upon the defendant as an accessory than was imposed upon the actual perpetrators of the homicide. It is true that four of the alleged accomplices of the crime, whose cases were disposed of prior to that of the defendant, received sentences of life imprisonment, while the defendant was sentenced to be executed.
Syllabus Point 3 in People v. McArdle, 295 Ill.App. 149, 14 N.E.2d 683, relied upon by the defendant to sustain his position upon this assignment of error, reads as follows: *449 "An accessory before the fact can be indicted and convicted as a principal but penalty assessed against such accessory can in no event be greater than punishment that could be inflicted upon principal." That case has no application to the present one, inasmuch as the principals could have been punished by execution. The test is not whether the principals received a more severe penalty than the accessory, but whether or not the former could, under the law, have received a penalty equal to that imposed upon the accessory.
Chapter 61, Article 11, Section 6 of the West Virginia Code, provides for the punishment of an accessory before the fact as follows: "In the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree * * *."
Upon his final assignment of error, the defendant maintains that it was the mandatory duty of the court to instruct the jury that, unless they recommended in their verdict that the accused should be confined in the penitentiary, in the event it found him guilty of murder in the first degree, it would be mandatory upon the court to impose a sentence of death. It is not contended by the defendant that the court erred in instructing the jury upon the evidence adduced that it could return only one of two verdicts, murder in the first degree or not guilty.
Chapter 61, Article 2, Section 2 of the Code, provides: "Murder of the first degree shall be punished with death, except as provided in article three, chapter sixty-two of this Code." Chapter 62, Article 3, Section 15, to which reference is made, provides for the verdict and sentencing in a murder case as follows: "If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he is guilty of murder of the first or second degree. If they find him guilty of murder of the first degree, they may, in their discretion, further find that he be punished by confinement in the penitentiary. If such further finding be not added to their verdict, the accused shall be punished with death, but, if added, he shall be punished by confinement in the penitentiary during his life. If the accused plead guilty of murder of the first degree, sentence of death or confinement in the penitentiary for life shall be pronounced upon him by the court, as may seem right, in the same manner and with like effect as if he had been found guilty by the verdict of a jury."
At common law there were no degrees of murder, and all murder was punishable by death. It is only by statute that murder has been divided, as it has in this State into murder in the first degree and murder in the second degree. In State v. Cobbs, 40 W.Va. 718, 22 S.E. 310, Syl. Pt. 1, this Court held that: "It is not error for a court to omit to instruct a jury that it may punish murder in the first degree with either death or confinement in the penitentiary, unless asked to do so." The opinion in that case was written by Judge Brannon, and the Cobbs case was affirmed on this point in State v. Beatty, 51 W.Va. 232, 41 S.E. 434, in an opinion written by Judge Poffenbarger. However, in State v. Chaney, 117 W.Va. 605, 186 S.E. 607, the rulings in the Cobbs and Beatty cases were specifically overruled. The only syllabus point of the opinion is as follows: "It is the duty of the trial court, in prosecutions for murder, to inform the jury, without request, of their authority under Code, 1931, 62-3-15, to determine whether the accused, if found guilty of murder in the first degree, shall be punished by death or confinement in the penitentiary for life. The rulings in State v. Cobbs, 40 W.Va. 718, 22 S.E. 310, and State v. Beatty, 51 W.Va. 232, 41 S.E. 434, in so far as they may be in conflict with this decision, are overruled." The decision in the Chaney case was reaffirmed in State v. Goins, 120 W.Va. 605, 199 S.E. 873, 875, in which a conviction of murder in the first degree, without a recommendation that the defendant be punished by confinement in the penitentiary, was set aside, and the Court in its opinion said: "Concerning the assignment of the failure of the trial court to instruct the jury that it was its duty to find, *450 in the event of a verdict of guilty of murder in the first degree, whether the accused should be hanged or sentenced to the penitentiary for life, there can be no question but that this constitutes reversible error. Without suggestion or request, this is the trial court's duty. This Court, in State v. Chaney, 117 W.Va. 605, 186 S.E. 607, emphatically so held. It does not appear from the record before us in this case that the trial court had its attention directed to this duty, but that fact does not correct the error."
The attorney general, on behalf of the State, contends that the trial court did properly instruct the jury in accordance with the decisions in the Chaney and Goins cases in the giving of State's Instruction No. 1 which is as follows:
"The Court instructs the jury that murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate and premeditated killing, or killing in the commission of, or in the attempt to commit arson, rape, robbery, or burglary, is murder in the first degree.
"The Court further instructs the jury that murder in the first degree is punishable by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict."
This instruction follows the statute heretofore quoted, but only in a general way. The instruction that is usually given in homicide cases where, under the indictment a verdict of murder in the first degree may be returned, is set forth in Lee, The Criminal Trial in the Virginias, Second Edition, Section 1342, which reads in part as follows: "* * * If you should find the defendant guilty of murder in the first degree you may, in your discretion, further find that he be punished by confinement in the penitentiary, and if such finding be not added to your verdict the judgment rendered thereon by the Court would be that the prisoner be punished with death, and if such finding is added, the judgment rendered thereon by the Court would be that he be confined in the penitentiary during his life. * * *" This instruction, or one similar to it, following the provisions of the statute, is certainly sufficient. The principal issue confronting this Court in reviewing this case is to determine whether State's Instruction No. 1 sufficiently informed the jury concerning the effect of the verdict they should return if they found the defendant guilty of murder in the first degree, inasmuch as it finds no reversible error elsewhere in this record.
The verdict of the jury reads as follows: "We, the jury, agree and find the defendant Melvin Loveless guilty of Accessory before the fact to Murder in the first degree as charged in the within indictment." The jury by their verdict found neither that the defendant should be punished by death nor by confinement in the penitentiary. It is quite true, under the provisions of Code, 62-3-15, with no further finding added to such a verdict, that the punishment shall be death. However, the jury are the triers of the facts, and there is no presumption that they are familiar with the law. The law applicable to the case must come from the trial court in the form of instructions. It may be that counsel for the State and defendant in their arguments to the jury explained in detail the effect of their returning the verdict which they did, and the manner by which they could have returned a verdict which would have resulted in life imprisonment for the defendant. The arguments of counsel are not contained in this record, and, even if they were, and if they did show such explanation it would be of no consequence, inasmuch as the jury looks not to counsel for guidance as to the law of the case, but to the trial court. They may disregard all that is said by counsel in argument, but they are not at liberty to disregard the law of the case as outlined to them in the court's instructions. If the jury had responded to State's Instruction No. 1 telling them that "murder in the first degree is punishable by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict", it would have been necessary for them to add to the verdict a further provision that the defendant *451 be punished either by death or confinement in the penitentiary. This jury was not instructed that if they found the defendant guilty of murder in the first degree and remained silent thereafter that by virtue of the law of this State it became the mandatory duty of the trial court to sentence the defendant to death by electrocution. Under the provisions of Code, 61-2-15, the penalty for rape, upon a verdict of a jury without recommendation for mercy, does not impose upon the trial court the mandatory duty of sentencing the prisoner to death, but in such case discretion is vested in it, not the jury, as to which of the two penalties, life imprisonment or death, shall be imposed. The exact opposite is true upon a verdict of murder in the first degree. If the effect of the jury's verdict is to require the court to impose the death penalty, then the jury should be so informed. We are of the opinion that State's Instruction No. 1 did not inform the jury with sufficient clarity as to the legal significance of such a verdict as it later returned. If it could be said that the trial court discharged the duty imposed upon it by the decisions in the Chaney and Goins cases, supra, by the giving of this instruction, then the verdict is still not responsive for its fixes the penalty at neither death nor life imprisonment, as the incomplete and misleading instruction informed them they were required to do. The verdict can be validated only by invoking the pertinent provisions of Code, 62-3-15, the import of which was never revealed to the jury by any instruction that was given by the court. A verdict whose solemnity requires the taking of the life of a human being should not be predicated upon presumption or probability that such a result was contemplated by the jury which returned it.
It is the mandatory duty of a trial court when a case is submitted to a jury, in which a verdict of murder in the first degree may be returned, to instruct the jury that in the event such a verdict is returned that they may further find that the accused be punished by confinement in the penitentiary, in which case the defendant will be sentenced to life imprisonment, and that in the absence of such finding, a sentence of death must be pronounced by the court. It was reversible error for the trial court in this case not to give to the jury, without request, such an instruction.
The judgment of the Circuit Court of Logan County is reversed, the verdict of the jury set aside, and the case remanded for a new trial.
Reversed and remanded.
RILEY, Judge (concurring).
After consideration of the record in this case and the opinion of the Court I am prompted to write this separate memorandum recording my concurrence in the holding of the Court in reversing the judgment of the Circuit Court of Logan County, setting aside the verdict of the jury, and granting the defendant a new trial. Specifically, I concur in all three points of the syllabus, but I do not agree with the position taken in the opinion of the Court that the trial court did not abuse the sound discretion, which is vested in every trial court in this State, in refusing to grant the defendant a continuance. As the well written opinion of the Court sets forth in detail many of the facts upon which this concurrence is based, it will be necessary to restate them in this note only in a rather general way.
With the greatest of deference to the members of this Court, who have joined in the opinion of the Court and to the able and experienced Judge of the Circuit Court of Logan County, I feel it my duty to state that the conditions under which the defendant Loveless was tried, and the spirit of hostility, which evidently pervaded the courtroom of the Circuit Court of Logan County before and during the trial, resulted in the defendant being tried for a crime, which involved his very life, under conditions and in circumstances which render it very difficult for this Court to determine whether the deefndant had, or could have had, a fair and impartial trial, such as is consonant with our American system of justice. At least in a case such as this we dare not hazard a surmise or a guess. This Court should ever be on guard to prevent *452 the trial of a defendant in a criminal case, especially a case involving a crime such as this which is revolting to the minds of respectable citizens, where there is an atmosphere of hostility against the defendant, or where the trial is not conducted with the greatest quietness and decorum.
The record in this case discloses that the Honorable John T. Copenhaver, Mayor of the City of Charleston, a city many miles distant from the place of the trial, had designated the defendant prior to the trial as a "racketeer", which designation was carried in newspapers of general circulation in Logan County, namely, The Charleston Gazette and The Bluefield Daily Telegraph, and articles prejudicial to the defendant also had appeared in The Logan Banner, a newspaper published in Logan County, and widely circulated in that county. Of these articles the one most prejudicial to the defendant was published by The Logan Banner on June 8, 1953, about one week prior to the date upon which the defendant was to be tried. In this article under the headline "Special Grand Jury Convenes Murder Indictment Is Sought By State", the Judge of the Circuit Court of Logan County is quoted as charging the grand jury: "Some have been tried (referring to the five other defendants who were indicted at the regular session of the grand jury in connection with the Reed case) and some have pleaded. It is imperative that this case be completed this term of court. I have called this special grand jury in order to offer the man [Loveless] a speedy trial."
Under Article I of the Amendments to the Constitution of the United States (the First Amendment) and West Virginia Constitution, Article III, Section 7, the provisions of the United States and the State Constitutions, which provide for freedom of the speech and press, the above-mentioned newspapers had the constitutional right, and because of the general interest which their readers would have in the trial of this case, they had a moral right to print all the news, including the interview with the Mayor of the City of Charleston, and the charge of the Judge of the Circuit Court of Logan County. This Court, of course, should not be concerned with the propriety of Mayor Copenhaver's statement to the newspapers, but the interview having been given, the newspapers certainly had the right to publish it, notwithstanding such publication would, in view of the wide circulation of the newspapers involved, be dangerously apt to create prejudice in the minds of potential jurors against the defendant Loveless. Loveless was being tried in Logan County for being an accessory before the fact to an alleged ruthless, unconscionable and cold-blooded murder of a woman in connection with an alleged robbery. The question before the Circuit Court and the jury of Logan County was whether he was guilty of that crime, and that crime only. That he may have been a notorious racketeer, having been engaged in unlawful activities in the City of Charleston, had no connection with the crime with which he was charged, and his designation as such racketeer was, in my opinion, prejudicial to defendant receiving a fair and impartial trial.
That a spirit of hostility and high-strung human emotions prevailed in the courtroom at the time the defendant was tried clearly appears from the record. At the trial of the other defendants an altercation occurred between one Beatty, at whose apartment Mrs. Reed was killed, and a prominent member of the Logan County bar, which, the motion for a continuance discloses, resulted in peace officers drawing their guns, and at the trial of this defendant deputy sheriffs stood at every door of the courtroom, and in the presence of the Judge and of the very jury which tried and convicted this defendant, searched every person, witnesses, attorneys and spectators alike, who entered the courtroom.
I do not by this memorandum intend to criticize or condemn the motives which the Sheriff of Logan County had in authorizing the activities of his deputies. He evidently believed he was doing his sworn duty in protecting the life of the Circuit Judge, who was the recipient of a threatening letter in connection with the Loveless trial. I do, *453 however, think that the searching of persons by deputy sheriffs in the circumstances portrayed by this record was dangerously apt to impress the jury that Loveless was a dangerous criminal, whose friends might resort to violence against the constituted authorities in order to free him. I simply say that such actions on the part of constituted authorities, though prompted by the highest motives, have no place in any courtroom, where the rights, liberties, and even the life of a defendant are concerned. Whether a search should have been made of those entering the courtroom on the day of the trial is not for me or this Court to say, but, if such search was required, it could have been made outside the doors of the courtroom and outside the presence of the jury.
That the defendant Loveless, as the trial court stated in its charge to the grand jury, was entitled to a speedy trial, cannot be gainsaid. In this regard I can do no better than to quote from the opinion of this Court in the case of State v. Jones, 84 W.Va. 85, 99 S.E. 271, 273, wherein the Court speaking through the Honorable Charles Wesley Lynch, a former eminent member of this Court, said: "* * * Embedded in the common law of the land is the principle of a fair and impartial trial alike in civil and criminal cases. To the extent reasonably avoidable no innocent person should be permitted to suffer the stigma and punishment incident to an offense of the commission of which he is not guilty, is an equally familiar and often-reiterated legal principle. The duty to accord speedy trials is founded in the sane reason and sound law, constitutional and statutory. But speed ought not to be permitted to work injustice, and, lest it should do so, the provisions therefor, as we have seen, are qualified in the Constitution by the significant phrase, `without unreasonable delay,' and in the statute by the like phrase, `unless good cause be shown for a continuance'."
I am well aware that the principle that a motion for a continuance is addressed to the sound discretion of the trial court in all the circumstances of the case is well settled in this jurisdiction, but "the discretion of trial courts with regard to continuances must be exercised with due regard to the constitutional guarantee of a fair and impartial trial to one accused of a crime, and the right to call for evidence in his favor." 4 M.J., Continuances, Section 2. This sound discretion, with all deference, I say has been abused.
Judge LOVINS has authorized me to say that he joins in this concurrence.
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210 Ga. 488 (1954)
80 S.E.2d 817
VICKERS
v.
VICKERS et al.
18482.
Supreme Court of Georgia.
Argued February 8, 1954.
Decided March 8, 1954.
Rehearing Denied March 23, 1954.
*489 E. Way Highsmith, J. H. Highsmith, J. D. Blalock, Highsmith & Highsmith, for plaintiff in error.
Bennett, Pedrick & Bennett, Larry E. Pedrick, E. Kontz Bennett, Barrie Jones, contra.
CANDLER, Justice.
James Ira Vickers was killed on April 22, 1952, when an automobile he was driving collided with a truck which was then being operated by an employee of Brunswick Pulp & Paper Company, a corporation. The deceased was survived by his widow and their minor child; also by seven other children, the issue of a former marriage, two of whom were minors at the time of his death. His widow sued Brunswick Pulp & Paper Company for $175,000, alleging in her complaint that her husband was 56 years old at the time he was killed; that his death resulted from a negligent act for which the defendant was liable; and that the full value of his life was the amount sued for. Brunswick Pulp & Paper Company afterwards paid $38,700 in settlement of the suit, and from the amount so paid Mrs. Vickers received $25,000. She took the position that the adult children of the deceased were not entitled to any part of the amount received by her and refused to pay them any part of it. This litigation arose when James Vickers, an adult son of the deceased, sued Mrs. Vickers for his pro rata part of the amount received by her in consequence of the wrongful death of his father. His petition, which was afterwards amended, alleges his right to have and receive a stated part of the amount received by Mrs. Vickers; and it also alleges mismanagement and waste of the funds received by her, and prays for certain injunctive relief, discovery, a receiver, and a judgment for his pro rata part of the amount received by Mrs. Vickers. With respect to the amount received, it is alleged in his petition that Mrs. Vickers, as widow of the deceased, is entitled to one-fifth of the net amount paid by the tortfeasor, and that the eight children of the *490 deceased are entitled to the remaining four-fifths, share and share alike. The six other children of the deceased by his former wife intervened, and the minor child of Mrs. Vickers was also made a party. The intervenors made, by their petition, substantially the same allegations which James Vickers had made in his petition, and likewise prayed for similar relief. By stipulation, the parties agreed for a named person to take possession of and hold the fund in controversy until the rights of the parties could be finally determined in this litigation, except it was agreed that Mrs. Vickers should retain $500 for certain personal uses, but the amount retained by her was to be properly accounted for when the rights of the parties were finally determined. On the trial it was shown, without dispute, that the deceased was survived by his widow and eight children, three of whom were minors at the time of his death; and that Mrs. Vickers received the net sum of $25,000 in settlement of the litigation which she had instituted against Brunswick Pulp & Paper Company for the wrongful death of her husband. By direction, the jury found that Mrs. Vickers, as widow of the deceased, was entitled to one-fifth of the recovery or $5,000, and that the eight children of the deceased were entitled to the remaining four-fifths, share and share alike, or $2,500 each. There is a proper exception as to this.
Here, as shown by our statement of the case, Mrs. Vickers, as widow, sued Brunswick Pulp & Paper Company, which had in consequence of a negligent act killed her husband. She sought to recover a sum amounting to the full value of his life without deduction for necessary or other personal expense which it would have been necessary for him to have incurred had he lived. The tortfeasor, in settlement of the litigation, paid $38,700, of which the widow received the net sum of $25,000. To whom did the money belong? A determination of this question should and will settle all material issues submitted by the record.
Prior to 1924, and under an act which the legislature passed in 1887 (Ga. L. 1887, p. 43) amending prior acts, money recovered from a tortfeasor for the wrongful death of a husband and father belonged to his widow and his surviving child or children. It did not become a part of the decedent's estate, it was not subject to any debt or liability of the deceased husband and parent *491 and it was held by the widow subject to the law of descents, just as if it were personal property descending to the widow and children of the deceased. These provisions of the amending act of 1887 were included in the Code of 1910 as §§ 4424 and 4425; and this court, in construing them and the acts from which they were codified, held unanimously in Coleman v. Hyer, 113 Ga. 420 (38 S.E. 962), that the words "child" or "children" did not embrace an adult child or adult children of the deceased, but included only a dependent minor child or dependent minor children of the deceased. See also Griffith v. Griffith, 128 Ga. 371 (57 S.E. 698); Beale v. Georgia Ry. & Power Co., 150 Ga. 774 (105 S.E. 447), and the cases there cited.
In 1924, the legislature amended the act of 1887 and the acts which it had amended (Ga. L. 1924, p. 60). The whole act now appears in the Code of 1933 as Title 105-13, but the question submitted for decision in the instant case relates only to Code §§ 105-1302, 105-1304, 105-1305, and 105-1308. These sections of the Code, being parts of the act of 1924 and the various acts amended thereby, should undoubtedly be considered and construed together. City of Elberton v. Thornton, 138 Ga. 776 (76 S.E. 62, Ann. Cas. 1913E, 994); Bloodworth v. Jones, 191 Ga. 193 (11 S.E.2d 658). The pertinent sections of the Code which we have enumerated provide: "A widow, or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent, the full value of the life of the decedent, as shown by the evidence." § 105-1302. "In the event of a recovery by the widow, she shall hold the amount recovered subject to the law of descents, as if it were personal property descending to the widow and children from the deceased." § 105-1304. "No recovery had under the provisions of section 105-1302 shall be subject to any debt or liability of any character of the deceased husband or parent." § 105-1305. "The full value of the life of the decedent, as shown by the evidence, is the full value of the life of the decedent without deduction for necessary or other personal expenses of the decedent had he lived." § 105-1308. After passage and approval of the amending act of 1924, this court, with two Justices dissenting, decided Peeler v. Central of Ga. Ry. Co., 163 Ga. 784 (137 S.E. 24), and by headnote 2 held: "It was the purpose of the *492 General Assembly in the passage of this act [the amending act of 1924] to exclude dependency as a prerequisite essential to a child's right to recover for the homicide of a parent; and the provision of the act entitling a child, whether minor or sui juris, to recover damages for the homicide of its parent, properly construed, makes the question whether the child is dependent upon such parent in any respect wholly immaterial." We have carefully examined the decision in Peeler's case, and while it is not a binding precedent, nevertheless, we think it undoubtedly follows the statute and is for that reason a sound statement of the law; and since the facts in that case are in all material respects similar to those in this case, the ruling there made will be followed in the instant case. We therefore hold in the case at bar that the money which the tortfeasor paid to the widow in settlement of the demand declared upon did not become a part of the decedent's estate; that it was not subject to any debt or liability of any character of the deceased; that it belonged to the widow and the children of the deceased, whether they be minors or sui juris, and whether they were dependent upon the deceased or not; and that it was distributable among and to them according to the rules of descent as fixed by Code § 113-903, which in this case is one-fifth to the widow and the remaining four-fifths, share and share alike, to the eight children of the deceased. Having reached this conclusion and since this is the controlling question in the case, we do not think it is at all necessary to deal with other collateral questions posed by the record. Accordingly, we find no reversible error.
Judgment affirmed. All the Justices concur.
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210 Ga. 361 (1954)
80 S.E.2d 316
LIVELY et al.
v.
GRINSTEAD, Supervisor.
18473.
Supreme Court of Georgia.
Argued January 13, 1954.
Decided February 9, 1954.
*363 Frank Grizzard, Frank A. Bowers, John L. Respess, Jr., Margaret Hopkins, Guy Tyler, Edward E. Dorsey, D. B. Phillips, Davis & Stringer, Johnson & Johnson, for plaintiffs in error.
Eugene Cook, Attorney-General, Hugh C. Carney, Hamilton B. Stephens, Assistant Attorneys-General, contra.
SUTTON, Justice.
"Intervenors in an equity suit take the case as they find it, and cannot establish equities in their own behalf by intervention where the original petition in the case in which they intervene does not allege an equitable cause of action." Smith v. Manning, 155 Ga. 209 (4) (116 S.E. 813). Nor will constitutional questions be passed upon unless their determination is necessary to a disposition of the case. Sumter County v. Allen, *364 193 Ga. 171, 173 (17 S.E.2d 567); Harper v. Davis, 197 Ga. 762, 765 (30 S.E.2d 481); Powers v. Wren, 198 Ga. 316 (3) (31 S.E.2d 713); Hutchins v. Candler, 209 Ga. 415, 416 (73 S.E.2d 191); Aiken v. Richardson, 209 Ga. 837 (4) (76 S.E.2d 393); and citations. Therefore, the question arises as to whether the petitioners have exhausted their statutory remedy.
Section 2 of the act of 1951 (Ga. L. 1951, p. 565; Code, Ann. Supp., § 92A-602) provides for a hearing upon the request of any person aggrieved by acts of the director, and that "any order or act of the Director, under the provisions of this act, shall be subject to review by the superior court in the county of the residence of the complaining party in a proper proceeding."
Equity by writ of injunction will restrain any act which is illegal or contrary to equity and good conscience and for which no adequate remedy at law is provided. Code § 37-102; Chadwick v. Dolinoff, 207 Ga. 702 (2) (64 S.E.2d 76); Waycross Military Assn. v. Hiers, 209 Ga. 812 (5) (76 S.E.2d 486). But where all the relief sought can be obtained in the manner provided by law, a suit in equity for injunction will not lie. Scarbrough v. Cook, 208 Ga. 697 (1) (69 S.E.2d 201).
Applying the above-stated principles of law to the pleadings under consideration, the allegations of the petition as amended, which neither made any reference to a request for a hearing nor to any appeal to the superior court, failed to state a cause of action for the injunctive relief that was sought, and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.
Judgment affirmed. All the Justices concur.
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150 Ga. App. 119 (1979)
257 S.E.2d 11
CARTER
v.
THE STATE.
57699.
Court of Appeals of Georgia.
Argued April 10, 1979.
Decided May 8, 1979.
Rehearing Denied May 29, 1979.
Reinhardt, Whitley, Simpson & Rogers, Glenn Whitley, for appellant.
Thomas H. Pittman, District Attorney, Thomas D. Watry, Assistant District Attorney, for appellee.
BANKE, Presiding Judge.
The appellant was convicted of aggravated assault. He appeals the denial of his motion for new trial, citing as error various rulings, charges, and failures to charge by the trial court. The sufficiency of the evidence is not at issue. The appellant shot the unarmed victim during an argument. Held:
1. In the first enumeration, error is alleged in the court's refusal to require the state to produce police reports and summaries after proper notice to produce pursuant to Code Ann. § 38-801 (g). The trial court viewed the material in camera, and denied the motion. The same issue was involved in Barker v. State, 144 Ga. App. 339 (241 SE2d 11) (1977). Reports and summaries made by police investigators are not the types of "books, writings or other documents or tangible things" subject to a "notice to produce." Natson v. State, 242 Ga. 618 (250 SE2d 420) (1978). This enumeration of error is without merit.
2. The trial court was in error in refusing to allow the victim to answer the question put by the appellant's counsel, "Have you hired an attorney to sue Mr. Carter?" The question was proper and the answer relevant. See Code Ann. §§ 38-1705, 38-1712. This court has held a similar ruling to be reversible error where the evidence was "very conflicting." Lloyd v. State, 40 Ga. App. 230 (149 S.E. 174) (1929). However, there was little conflict in the evidence in this case. The defendant admitted shooting the victim, both to police and at trial. Although the defendant claimed at trial that he had acted in self-defense, there was no actual conflict as to what transpired; and we have ruled in Division 4, infra, that the evidence did not even require a charge on self-defense. Therefore, we hold the refusal to allow the question to be non-prejudicial on the facts of this case.
3. The appellant complains that the court erred in allowing the state to question one of its witnesses repeatedly regarding a statement made by the appellant immediately after the shooting, although the witness initially could not recall the statement. We find no abuse *120 of discretion.
4. The appellant contends that the trial court erred in failing to give his requested charge on self-defense. The court gave no instruction at all on this issue, although it did charge on justification in general. See Code Ann. § 26-901. We have carefully reviewed the evidence and have determined that it does not raise any issue as to self-defense or justification. The appellant and the victim got into an argument in the appellant's furniture store. The appellant ordered the victim to leave; and as she was in the process of complying with this order, insults were exchanged. The appellant testified that the victim called him a "lying bastard," that her companion had his hand in his pocket, and that he feared for his life. The only person armed was the appellant.
Under these circumstances a charge on justification by defense of self or property was not required. Accord, Hale v. State, 135 Ga. App. 625 (218 SE2d 643) (1975). This enumeration of error is without merit.
5. Other enumerations concerning the charge and the denial of the appellant's motion for a new trial have been carefully considered and found to be without merit. The charge, considered as a whole was full, complete, and fair. See Walls v. State, 148 Ga. App. 112 (251 SE2d 103) (1978).
Judgment affirmed. Underwood and Carley, JJ., concur.
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80 S.E.2d 670 (1954)
239 N.C. 604
STATE
v.
SPENCER.
No. 220.
Supreme Court of North Carolina.
March 17, 1954.
*672 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Doffermyre & Stewart, Dunn, for defendant, appellant.
PARKER, Justice.
The defendant assigns as error the consolidation for trial of the two bills of indictment. This Court said in State v. Combs, 200 N.C. 671, 158 S.E. 252, 254: "The court is expressly authorized, by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others." G.S.N.C. § 15-152.
The three defendants were charged with participating in the same crime as principals. The State relied upon the same set of facts at the same place and time as against each defendant. The consolidation was proper. It prevented two trials involving the same facts. State v. Davis, 214 N C. 787, 1 S.E.2d 104 (consolidation for trial of three warrantseach warrant issued *673 against one defendantcharging each defendant as a principal with the unlawful possession and transportation of intoxicating liquor); State v. Jackson (State v. Blackwell) 226 N.C. 760, 40 S.E.2d 417 (consolidation for trial of three separate indictments against three defendants relating to one felonious assault).
The appellant in his brief in respect to the above assignment of error cites only an excerpt from State v. Norton, 222 N.C. 418, 23 S.E.2d 301, which deals with the lower court's charge to the jury. In that case this Court held the consolidation for trial of the two indictments had statutory authority. G.S.N.C. § 15-152.
The defendant's second assignment of error, based on his exception No. 2, is to the trial court's segregation of his witnesses. Each defendant moved that the State's witnesses be segregated during the trial. The court allowed the motion. The solicitor for the State then moved that the defendants' witnesses be segregated. The defendants objected. Their counsel stated to the court, we do not know at this time whether we will have any witnesses or not; we might rely upon the weakness of the State's case; at this time, we do not know who our witnesses will be; we have only two under subpoena; we feel that it would be prejudicial to be forced to have any prospective witnesses called and sworn in the presence of the jury, until the State has rested. The court said it would not permit any witnesses to testify in the case who were present in court after the evidence began, and directed the defendants to call their witnesses and have them sworn. Whereupon several were swornone of whom was Annie Lee Hodges. Each defendant objected and excepted.
The defendant in his brief combined his second assignment of error with his ninth assignment of error, based on his exception No. 17. His exception No. 17 is based on these facts. One afternoon during the trial immediately after the judge had left the courtroom, and while the jury was in the jury box, Annie Lee Hodges came into the bar, and in a loud tone of voice said to Mr. Doffermyre, one of the defendant's counsel, "I told Mr. Hooks (solicitor for the State) I don't know anything about this case. If you put me on the stand, you will be sorry." The next day when court convened counsel for defendant, in the absence of the jury, brought this to the attention of the judge by the testimony of the Clerk of the Court. Then Mr. Doffermyre stated to the judge that he had never seen Annie Lee Hodges before. Whereupon the defendants, and each of them, moved that a juror be withdrawn and a mistrial ordered.
The judge then ordered the jury to be brought into the courtroom. The judge inquired if any of the jury heard what Annie Lee Hodges said to Mr. Doffermyre. One juror replied he heard a girl he did not know, inquire of Mr. Doffermyre why she was sworn as a witness, and say "you had better not put me on the stand," and that was all he heard.
Another juror by the name of Tudor replied he heard the same thing, and heard her say she told Mr. Hooks she knew nothing about the trial, and didn't know why she was called. The judge then asked Tudor did he consider that would affect his consideration of the case. Tudor replied it might have some bearing on it; of course, I haven't heard all the evidence. The judge said that is not evidence. Tudor replied, I realize that. The judge: do you consider that would prejudice you in any way against either of the defendants? Tudor: well, I can't help from feeling it would have some bearing; if there was some doubt in my mind, that would add to it. The juror Tudor then stated in response to questions by the judge that he could sit in the jury box, and hear the evidence in the case and the charge of the court, and return a verdict uninfluenced by anything he had heard, except the evidence and the charge. The judge then stated: "Gentlemen, the Court holds the juror is impartial." The court denied the motion to withdraw a juror, and order a new trial. The defendants, and each of them, excepted.
The defendant contends that the manner in which his witnesses were segregated, the *674 words of Annie Lee Hodges before the jury, and the judge's interrogations of the jurors as to the language of Annie Lee Hodges were highly prejudicial. And further that the other ten members of the jury were not given an opportunity to say whether they heard the remarks of Annie Lee Hodges, and if so, were they influenced thereby.
This jurisdiction, and the great majority of jurisdictions, follow the early English rule that the segregation, separation, exclusion of witnesses, or "putting witnesses under the rule," as the procedure is variously termed, is a matter not of right, but of discretion on the part of the trial judge. The exercise of such discretion is not reviewable, except in cases of abuse of his discretion. State v. J. H. Hodge, 142 N.C. 676, 55 S.E. 791; State v. Lowry, 170 N.C. 730, 87 S.E. 62; Lee v. Thornton, 174 N.C. 288, 93 S.E. 788; 53 Am.Jur., Trial, Sec. 31. The State moved "to put the defendants' witnesses under the rule" only after the court had granted a similar motion of the defendants to exclude the State's witnesses. No abuse of the trial judge's discretion appears.
The evidence in the Record does not bear out the defendant's contention that the other ten members of the jury were not given an opportunity by the court to say whether they heard the remarks of Annie Lee Hodges, and if so, were they influenced by them. The judge asked the jury twice, if any of them had heard the words of Annie Lee Hodges. Only two said they had. The other ten could have spoken up in response to the two questions, if they had heard her remarks.
The juror Tudor stated to the court that he could hear the evidence and the charge of the court, and return a verdict uninfluenced by anything he had heard except the evidence and the charge. That suffices to support the court's finding that Tudor was impartial or indifferent. State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523; State v. Foster, 172 N.C. 960, 90 S.E. 785; State v. English, 164 N.C. 497, 80 S.E. 72; State v. Banner, 149 N.C. 519, 63 S.E. 84.
G.S.N.C. § 9-14 provides that the judge "shall decide all questions as to the competency of jurors", and his rulings thereon are not subject to review on appeal, unless accompanied by some imputed error of law. The ruling in respect of the impartiality of the juror Tudor presents no reviewable question of law. State v. DeGraffenreid, supra; State v. Bailey, 179 N.C. 724, 102 S.E. 406; State v. Bohanon, 142 N.C. 695, 55 S.E. 797.
According to the Record only one other juror spoke up. He stated he heard a girl he didn't know inquire of Mr. Doffermyre why she was sworn as a witness, and say he had better not put her on the stand. It would seem that the hearing of such remark was not prejudicial. Upon the evidence in the Record sufficient facts were not shown to withdraw a juror, and order a mistrial in this capital case. State v. Crocker, 239 N.C. 446, 80 S.E.2d 243; State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924; State v. Hart, 226 N.C. 200, 37 S.E.2d 487; State v. Hawkins, 214 N.C. 326, 199 S.E. 284; State v. Plyler, 153 N.C. 630, 69 S.E. 269; State v. Boggan, 133 N.C. 761, 46 S.E. 111; State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31; State v. Brittain, 89 N.C. 481. See also State v. Burton, 172 N.C. 939, 90 S.E. 561 (trial for second degree murder; remark to jury by officer having them in charge that the judge would keep them until Sunday, though authorized by judge, held not reversible error); State v. Jackson, 112 N.C. 851, 17 S.E. 149 (indictment for larceny; before jury impaneled, but in their presence, a bystander remarked in open court that the defendant's wife said she would not come because she would only help get her husband in jail. This Court said "this can be no ground for exception.").
The defendant's assignments of errors Nos. Two and Nine are overruled.
The defendant's tenth assignment of error is to the refusal of the court *675 to grant his motion for judgment of nonsuit made at the close of the evidence. The State offered evidence tending to show that the defendant Bobby Spencer had had an altercation with the deceased; that he and his two codefendants left the cafe, and returned together in about 30 minutes; that the defendant John Spencer was armed with a pistol; that the three defendants entered the cafe together and gathered around Thurman McNeill at the piccolo; and that the defendants Bobby Spencer and Lacy Murchison were physically and violently aiding and abetting the defendant John Spencer in the murder of Thurman McNeill. It is thoroughly established law in North Carolina that without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. State v. Jarrell, 141 N.C. 722, 53 S.E. 127; State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Donnell, 202 N.C. 782, 164 S.E. 352; State v. Gosnell, 208 N.C. 401, 181 S.E. 323; State v. Brooks, 228 N.C. 68, 44 S.E.2d 482; State v. Church, 231 N.C. 39, 55 S.E.2d 792. The court was correct in overruling the motion for judgment of nonsuit.
The defendant assigns as error the court's definition of malice in its charge. In defining malice the court used the same words that Stacy, C. J., did in defining malice in State v. Benson, 183 N.C. 795, 111 S.E. 869words that have been cited by us many times since with approval. This assignment of error is without merit.
The defendant assigns as error that the court charged the jury "you may convict all, or you may acquit all, or you may convict one or more and acquit the others, or you may acquit one or more, and convict one or more, etc." The contention being that the court charged the jury that the State contended that the three defendants entered into a conspiracy to murder Thurman McNeill, and that in the execution of the conspiracy all three defendants gathered around the deceased and Lacy Murchison and Bobby Spencer aided and abetted John Spencer in murdering Thurman McNeill, and that "any instruction other than all defendants must either be found guilty or all not guilty was error." The defendant cites one authority in his brief in support of his argument: State v. Brown, 204 N.C. 392, 168 S.E. 532, which case does not support his contention.
The court in addition to charging in respect to a conspiracy, also charged the jury correctly and at length as to the principle of law that when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. The defendants were not on trial for conspiracy: they were on trial for murder. The court's charge in respect to a conspiracy in this case is free from reversible error. State v. Donnell, supra. Without regard to any previous confederation or design when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. To illustrate: if the jury had found beyond a reasonable doubt that John Spencer was guilty of the murder of Thurman McNeill, and if the jury had had a reasonable doubt that Lacy Murchison and Bobby Spencer were guilty of aiding and abetting John Spencer in the murder of Thurman McNeill, it would have been their duty under those circumstances to convict John Spencer and acquit Lacy Murchison and Bobby Spencer. This assignment of error is overruled. See State v. Ford, 175 N.C. 797, at page 804, 95 S.E. 154.
We have examined the defendant's other assignments of error, and find them without merit.
The case was fairly and ably tried by the experienced judge below, and we find it free from error. The last words spoken by the judge to the jury in his charge were that the jurors were to banish from their minds as completely as if it had never taken place what Annie Lee Hodges said to Mr. Doffermyre, and that their verdict was to be based solely upon the evidence they had heard and the charge of the court. The *676 defendant must abide by the verdict and judgment imposed thereon. From the evidence in the Record it would seem that the jury could have returned a verdict for the capital charge.
No error.
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257 S.E.2d 471 (1979)
42 N.C. App. 582
Gerald P. WILLIS, Administrator of the Estate of David S. Willis, Deceased
v.
DUKE POWER COMPANY, a corporation.
No. 7826SC535.
Court of Appeals of North Carolina.
August 21, 1979.
*473 Cansler, Lockhart, Parker & Young by Thomas Ashe Lockhart, Joe C. Young, and John M. Burtis, Charlotte, for plaintiff-appellant.
William I. Ward, W. Edward Poe, Jr., and Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and Irvin W. Hankins, III, Charlotte, for defendant-appellee.
MORRIS, Chief Judge.
The threshold question for decision on this appeal is whether the action abated upon the death of Elizabeth Shelton Willis, mother of decedent, after commencement of the action but pending trial. The trial court, by granting defendant's motion for summary judgment "based on the grounds stated in the motion", held that it did. We do not agree.
Resolution of this question of first impression in this State requires consideration of the former wrongful death statute, cases interpreting that statute, and the new wrongful death statute.
No right of action for wrongful death existed at common law, and it has oft been said that it was cheaper to kill than to injure. By "The Fatal Accidents Act", 1846, 9 & 10 Victoria, c. 93, §§ 1-6, commonly known as Lord Campbell's Act, a right of action for wrongful death was brought into being. Section 1 of that statute provided:
"Whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued should be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."
This basic portion of Lord Campbell's Act has now been adopted by every State. There are differences among the States in the method of measuring damages and distributing recovery. The basic portion of Lord Campbell's Act was adopted in North Carolina in 1868-69 and remains in almost identical verbiage in present G.S. 28A-18-2(a). (The 1969 Legislature rewrote G.S. 28-174, the damages section of the wrongful death statute, and the 1973 Legislature combined G.S. 28-173 and G.S. 28-174 into one statute designated as G.S. 28A-18-2.)
Prior to the 1969 amendment, the statute (G.S. 28-173 provided that the amount recovered in such an action would not be applied as an asset of the estate to the payment of debts of the decedent, except for burial expenses of the deceased and reasonable hospital and medical expenses not exceeding $500, "but shall be disposed of as provided in the Intestate Succession Act." G.S. 28-174 provided for the recovery of "such damages as are a fair and just compensation for the pecuniary injury resulting from such death." That language remained unchanged from 1869 to 1969. The Court construed the language to mean that the jury was required to determine the amount of money decedent would have *474 earned during the period the jury should find he would have lived, determine and deduct his ordinary living expenses, and then ascertain the present net worth of the accumulation of those net earnings. The resulting figure represented the pecuniary value of the life of the decedent to his estate. See Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952). The statute made no provision for punitive damages, nor did it allow for nominal damages if there was no pecuniary loss. Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793 (1958).
Under the former statute, it is very clear that the action did not abate upon the failure or absence of next of kin prior to judgment. See Note, Wrongful Death Damages in North Carolina, 44 N.C.L.Rev. 402, at 425. In Warner v. Railroad Co., 94 N.C. 250 (1886), the trial court had indicated that plaintiff's complaint was defective because it failed to allege in a wrongful death action that decedent left surviving him next of kin and refused to allow plaintiff to amend. Plaintiff submitted to a nonsuit and appealed. In addressing this question, the Court noted that the statute required that damages were not simply to be "distributed", but "disposed of", (id. at 257) and that it appeared that the purpose of the statute was to give the right of action for the recovery of damages for wrongful death without regard to who might become beneficiaries, excluding, of course, creditors and legatees. The Court regarded this view as strengthened by the fact that the North Carolina statute was different from the majority of statutes in the United States in that the statutes in most states provided for a designated beneficiary or beneficiaries usually wife and children and the measure of damages generally was made to depend on who was designated to receive the proceeds of the action. The Court in holding it unnecessary to allege the survival of next of kin, said:
"We are unable to see anything in the terms or purpose of the statute, that warrants such interpretation of it as would exclude the University from taking the damages recovered in the absence of next-of-kin. The statute, (The Code, Sec. 1498), in broad and comprehensive terms, gives the action; Sec. 1499, prescribes in terms quite as comprehensive, that the damages recoverable shall be such `as are a fair and just compensation for the pecuniary injury resulting from such death,' and Sec. 1500 prescribes that such damages shall not be applied as assets in the payment of debts or legacies, `but shall be disposed of as provided in this chapter, for the distribution of personal property, `in case of intestacy.' It is observable that the damages are not simply to be disposed of as provided in this chapter for the distribution of personal property, but as `in case of intestacy.' These latter words are significant, as tending to show a definite purpose, to make a complete disposition in any case, of the damages.' As we have seen, in case of intestacy, the personal property of the intestate is to be distributed, first, to the widow and children, or the legal representative of such child or children as may be dead; if there be none, the representative of children; then to the succeeding next-of-kin generally, and if the classes thus entitled, do not claim it in the way and within the time prescribed, it is just as certainly to be disposed of to the University.
It is said that the purpose of actions like this, is to provide for the widow and children of the intestate, and this is no doubt true, but it is likewise just as true and certain the provision is plain that their further purpose is to provide for the next succeeding next-of-kin, who, in many cases, have very little natural claim upon the intestate. The purpose of such actions reaches certainly beyond the claim of those who are first entitled to the benefit of the labor and efforts of the intestate. It seems to have been part of the purpose of the statute giving the action and disposing of the damages recoverable in it, to give the latter to the University in case of the possible absence of next-of-kin. It has for a long period been the settled policy of the State, to dispose of unclaimed property in the hands of executors and administrators, to *475 the University, and a like disposition is made of damages in actions like the present.
So, that in any case, the statute directs a disposition of the damages that may be recovered from the defendant in this action. It cannot, therefore, concern it to inquire who shall be entitled to take benefit of the same. It has no right or interest in that respect. Hence, it was not only not necessary, but it would have been improper, to allege in the complaint that there were next-of-kin of the intestate. Any issue raised in such respect, would have been beside the case, immaterial and improper." 94 N.C. at 259-60.
See also Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335 (1944); McCoy v. R.R., 229 N.C. 57, 47 S.E.2d 532 (1948); Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947); Abernethy v. Utica Mutual Insurance Company, 373 F.2d 565 (4th Cir. 1967).
The Court also noted that in some states, though not uniformly so held, where the statutes designated the persons to take, it might be quite in order to require an allegation in the complaint of the existence of such persons, "because, in the absence of persons to take, the action would not lie." 94 N.C. at 260.
And in Neill v. Wilson, 146 N.C. 242, 59 S.E. 674 (1907), the Court said that the wrongful death statute gave clear indication of the intent of the Legislature to impress upon the right of action for wrongful death "the character of property as a part of the intestate's estate, and that, for the purpose of devolution and transfer, the rights of the claimants should be fixed and determined as of the time when the intestate died." Id. at 245, 59 S.E. at 675.
A case strikingly similar in pertinent aspects to the one before us in the leading case of Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S. Ct. 452, 81 L. Ed. 685 (1937). There the Court was construing the portion of the Merchant Marine Act of 1920 (46 U.S.C.A. § 688) which provides (by reference to provisions of Federal Employer's Liability Act, 45 U.S.C. § 51) in event of the death of a seaman, for an action for the benefit of "the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee." The seaman died unmarried, leaving surviving him his mother and several brothers. Thus the mother was the sole beneficiary of the statutory cause of action. She was appointed administratrix of her son's estate and, as administratrix, filed claim for damages. Pending determination of the suit, the mother died, and a brother of the deceased seaman was appointed to succeed her as administrator. The District Court dismissed the action on the ground that at the death of the mother, liability abated. The Court of Appeals affirmed. The Supreme Court granted certiorari and reversed. Mr. Justice Cardozo, writing the opinion for the Court, noted that the action is for the wrong to the beneficiaries and is confined to their pecuniary loss by his death and said:
"Viewing the cause of action as one to compensate a mother for the pecuniary loss caused to her by the negligent killing of her son, we think the mother's death does not abate the suit, but that the administrator may continue it, for the recovery of her loss up to the moment of her death, though not for anything thereafter, the damages when collected to be paid to her estate. Such is the rule in many of the state courts in which like statutes are in force. It is the rule in New York, in Pennsylvania, in New Jersey, in Oklahoma, in Georgia, in Kentucky, in North Carolina, and under statutes somewhat different in Connecticut and Massachusetts. . . .
When we remember that under the death statutes an independent cause of action is created in favor of the beneficiaries for their pecuniary damages, the conclusion is not difficult that the cause of action once accrued is not divested or extinguished by the death of one or more of the beneficiaries thereafter, but survives, like a cause of action for injury to a property right or interest, to the extent that the estate of the deceased beneficiary *476 is proved to be impaired. To that extent, if no farther, a new property right or interest, or one analogous thereto, has been brought into being through legislative action. True, there are decisions under the death statutes of some states that teach a different doctrine, refusing to permit a recovery by the administrator after the beneficiary has died, though the ruling has been made at times with scant discussion of the problem.
. . . . .
Death statutes have their roots in dissatisfaction with the archaisms of the law which have been traced to their origin in the course of this opinion. It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied." 300 U.S. at 347-51, 57 S.Ct. at 455, 81 L.Ed. at 688-90.
Although our wrongful death act was amended drastically in some respects in 1969, there was absolutely no change in the basic portions allowing the action and providing for the disposition of the recovery. The statute, now G.S. 28A-18-2(a), in language identical to the former statute, provides that the action shall be brought by the personal representative or collector of the decedent; that the amount recovered is not an asset of the estate for the payment of debts and legacies except for burial expenses and the $500 limitation on hospital and medical expenses; that the recovery "shall be disposed of as provided in the Intestate Succession Act." We find nothing in the amended statute which would, in any way, indicate any intent on the part of the Legislature that a wrongful death action should abate upon the death of the primary beneficiary pending determination of the action. We are aware that some states do hold that an action abates. Indeed, there are a few states which so provide by statute, and at least one which, by statute specifically provides that the action shall not abate upon death of the "person wronged". Tenn. 20-602. Our research discloses that in states which use the loss to the estate as the measure of damages, there is no abatement, because the existence of beneficiaries is not a requisite to the bringing of the action. In those states where the damages are measured by loss to the beneficiaries, the action abates only when the beneficiary who dies during the pendency of the action is the only surviving beneficiary who can qualify under the statute to receive the compensation for the wrongful death. See Note, Wrongful Death Damages in North Carolina, supra; Annot., 13 A.L.R. 225 (1921); Annot., 34 A.L.R. 1247 (1925); Annot., 59 A.L.R. 760 (1929); Annot., 43 A.L.R. 2d 1291 (1955). The cases cited by defendant are cases from jurisdictions having entirely different statutory provisions with respect to those entitled to the recovery. Our conclusion that the General Assembly did not intend that the action abate in the circumstances of the case before us is bolstered by the fact that the new statute provides that the damages recoverable for wrongful death shall include "nominal damages when the jury so finds" G.S. 28A-18-2(b)(6); this, in spite of and in addition to the provisions that damages shall include "the present monetary value of the decedent to the persons entitled to receive the damages recovered, . . ." G.S. 28A-18-2(b)(4). The intimation that there shall not be an abatement is, we think, quite clear in the statute, and there is nothing which indicates that the court's interpretation of the former statute should not be just as applicable to the present statute.
For the reasons set out, the court erred in granting the motion for summary judgment on the grounds that the action had abated. The action shall be continued by the administrator for the recovery of damages measured by the loss to decedent's mother up to the time of her death, in accordance with the provisions of G.S. 28A-18-2(b).
We turn now to the question of whether the court erred in granting the motion for summary judgment on the ground that defendant, as a matter of law, was not negligent, or on the ground that plaintiff's intestate was contributorily negligent as a matter of law.
*477 In determining whether a movant is entitled to summary judgment under G.S. 1A-1, Rule 56, we must first determine whether there is no genuine issue of material fact and then whether movant is entitled to judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972), and cases there cited. Summary judgment is a rather drastic remedy and one to be granted cautiously. This is particularly true in actions alleging negligence as a basis for recovery. In Gladstein v. South Square Assoc., 39 N.C.App. 171, 173-74, 249 S.E.2d 827, 828-29 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979), we said:
"Nevertheless, it has often been said by the courts of this and many other jurisdictions that only in exceptional cases involving the question of negligence or reasonable care will summary judgment be an appropriate procedure to resolve the controversy. (Citations omitted.) The propriety of summary judgment does not always revolve around the elusive distinction between questions of fact and law. Although there may be no question of fact, when the facts are such that reasonable men could differ on the issue of negligence courts have generally considered summary judgment improper. (Citations omitted.) Judge Parker for this Court explained:
`This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party's injuries.' Robinson v. McMahan, 11 N.C.App. 275 at 280, 181 S.E.2d 147 at 150; see also Edwards v. Means, supra [36 N.C.App. 122, 243 S.E.2d 161].
The jury has generally been recognized as being uniquely competent to apply the reasonable man standard. See generally Prosser, Torts § 37 at 207 (4th Ed. 1971). Because of the peculiarly elusive nature of the term `negligence', the jury generally should pass on the reasonableness of conduct in light of all the circumstances of the case. This is so even though in this State `[w]hat is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist.' McNair v. Boyette, 282 N.C. 230, 236, 192 S.E. 457, 461 (1972)."
Applying these principles to the facts of the case before us as contained in depositions, affidavits, and interrogatories, in addition to the sworn pleadings and admissions, we cannot agree that the court properly entered summary judgment based on the ground that defendant, as a matter of law, was not negligent.
Less than a year before the death of plaintiff's intestate, and on 28 October 1972, Nelson L. Hale, Jr., died as the result of electrocution which occurred on the same premises. There, too, the decedent had been engaged in painting the house trim. The plaintiff's intestate there had been the owner of the house, and he was using an aluminum extension ladder. In maneuvering the ladder, Hale brought it into contact with the defendant's uninsulated wires at the same place on the premises. We think what we said in that case, Hale v. Power Co., 40 N.C.App. 202, 204-05, 252 S.E.2d 265, 267-68 (1979), is just as applicable here as it was there.
"Our courts have repeatedly stated that a supplier of electricity owes the highest degree of care. See Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385 (1931), and cases cited therein. This is not because there exists a varying standard of duty for determining negligence, but because of the `very dangerous nature of electricity and the serious and often fatal consequences of negligent default in its control and use.' Turner v. Southern Power Co., 154 N.C. 131, 136, 69 S.E. 767, 769 (1910). `The danger is great, and care and watchfulness must be commensurate to it.' Haynes v. Raleigh Gas Co., 114 N.C. 203, 211, 19 S.E. 344, 346 (1894). `The standard is always the *478 rule of the prudent man,' so what reasonable care is `varies . . . in the presence of different conditions.' Small v. Southern Public Utilities Co., supra, 200 N.C. at 722, 158 S.E. at 386.
We cannot agree with defendant's argument that the `prudent man' rule has been supplanted by the requirements of the National Electrical Safety Code, adopted in 1963 as Rule R8-26 of the North Carolina Utilities Commission. Even assuming that defendant complied with the Code, we cannot say that such compliance would make defendant free of negligence as a matter of law. Taking the evidence for the moment in the light most favorable to the defendant, the record shows that the wires here were 7200 volt distribution lines (a much higher voltage than that of the house service lines, which in this case carried 122 and 240 volts) which passed the east side of the Hale house 3' 10" from the side of the house, and 22' 7" above the ground, clearances which complied with the National Electrical Safety Code. The distribution line was uninsulated, also in compliance with the Code. The house was Tudor style and had two stucco and wood gables, the lowest 18' and the highest 24' 8".
On these facts there is a genuine issue of material fact relating to defendant's duty to insulate the high voltage wires maintained in such close proximity to a house which would obviously need maintenance, such as paint. In Williams v. Carolina Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979), our Supreme Court noted the rule in this jurisdiction with regard to the duty to insulate wires:
`That the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, is only reasonable. Therefore, the law does not compel companies to insulate . . . their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure, that is, where they may be reasonably expected to go.' (cite omitted)
Moreover, we cannot say that the alleged negligence of defendant could not have been the (sic) proximate cause of Hale's injury. As noted in Williams, supra at 403, 250 S.E.2d 255, `it is only in exceptional cases, in which reasonable minds cannot differ as to foreseeability of injury, that a court should decide proximate cause as a matter of law. "[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case."` The factual occurrences of this case do not present such an exceptional case, and it is for a jury to determine whether defendant did all it was required to do under the circumstances."
We must now consider whether the court erred in allowing defendant's motion for summary judgment on the ground that plaintiff's intestate was contributorily negligent as a matter of law. Again we must disagree with the trial court.
We are certainly aware of the rule, which is well settled in this State, that a person has a legal duty to avoid contact with an electrical wire of which he is aware and which he knows may be very dangerous. Alford v. Washington, 244 N.C. 132, 92 S.E.2d 788 (1956). "That does not mean, however, that a person is guilty of contributory negligence as a matter of law if he contacts a known electrical wire regardless of the circumstances and regardless of any precautions he may have taken to avoid the mishap." Williams v. Power & Light Co., 296 N.C. 400, 404, 250 S.E.2d 255, 258 (1979).
In the cases on which defendant relies, Floyd v. Nash, 268 N.C. 547, 151 S.E.2d 1 (1966); Lambert v. Duke Power Co., 32 N.C.App. 169, 231 S.E.2d 31 (1977), cert. denied, 292 N.C. 265, 233 S.E.2d 392 (1977); Bogle v. Duke Power Co., 27 N.C.App. 318, 219 S.E.2d 308 (1975), cert. denied, 289 N.C. 296, 222 S.E.2d 695 (1976), plaintiff's intestate had been explicitly warned about the specific wire which subsequently killed him. The evidence before the court in the case before us leaves to conjecture whether the *479 plaintiff's intestate knew the location of the uninsulated high voltage wire or could have seen it even if he knew of its location.
Charles F. Edwards, Jr., by deposition, testified that he met David Willis (plaintiff's intestate) and James S. Thompson at the Tranquil Avenue house on 4 October 1973 for the purpose of showing them what painting needed to be done on the house. Mrs. Baylis, the owner of the house, had shown Mr. Edwards what she wanted done some week prior to this date, and she was around that day. She met them in the front yard and walked around the house with them. At that time, nothing was said about wires. They walked around the east side of the house, where the accident occurred, but Edwards did not notice any wires. Willis and Thompson started working. Between 10:00 and 10:30 Edwards returned to the Baylis house with additional equipment for Willis and Thompson. At that time they were on the west side of the house. As he was leaving, Mrs. Baylis stopped him and said, "Charlie, there are some wires back there, back of the house, that if you touch them you could get electrocuted", gesturing with her arms toward the rear of the house. He told her the painters needed to hear it, so they walked over to where they were, and she repeated it but did not motion to the rear of the house. She was very casual about it. He noticed some telephone wires going to the middle of the back of the house and thought they were the wires about which she was talking. "At no time prior to the death of David Willis did I notice the wires on the east side of the house . . . Prior to David Willis's death, I did not know that the wires that were lying along the east side of the Baylis's house were not insulated. I did not notice the wires at all, as a matter of fact. They were almost hidden . . . It was difficult to see them because they have a lot of cane and shrubbery and it's very dark so any wire would be difficult to see around that area on the east side. It's very dark, therefore, making it difficult to see any wire on the east side . . . concerning my observations the day after the accident when the wires had been put back up, they were extremely, extremely difficult to see at that time. I was amazed that Tommy, who had been painting and who had almost finished the east side, had not been killed because they were extremely difficult to see. Unless you were really looking for them, you could not you would not notice them. You would not have noticed them." The growth on the east side of the house was thick and at least 15' high. "When I looked up to see the top of the greenery, I did not see any wires at all that I noticed."
James Thompson testified that he did not hear any conversation between Mrs. Baylis and Edwards about the wires; that about mid-afternoon Mrs. Baylis came out with a friend. He was working on the east side of the house. She said there were some live wires in the back of the house and to be careful and to tell David. "I told David. I told him that Mrs. Baylis had said there were some live wires and that we should be careful. There were some drop wires that led to the back that came into the house for the appliances and telephone and whatever. I assumed those were the ones because we were right there beside them and he said okay, he'd watch it. When Mrs. Baylis told me and when I went back to tell him to be careful, I did not see the wires that ran along the easterly edge of the property. Later in the afternoon, when I was beside them sitting on the roof, I noticed them over to my side." Mrs. Baylis never pointed to the particular wires. Thompson did not think David heard Mrs. Baylis because he was in the back of the house on the roof and was around the corner where Thompson was sitting on the roof. She was out of sight of David and the radio was playing loudly. David never painted on the east side. David came over for them to decide whether to stop for the day. They decided to try to finish. David knew how to move the ladder and Thompson had never done it. He helped David stand it up and David began to move the ladder when it was in an upright position. A couple of seconds later, Thompson heard the noise. David had moved four or five steps with the ladder.
*480 With respect to whether the lines were easily seen, Mrs. Baylis testified: "I have a problem seeing the wires. To me, the trees obscured the lines and when you are that close to the house in a seven foot area with the overhanging bamboo, you have a very crowded feeling." She said her husband had worked on that side of the house and had no problem with seeing the wires. She said when she told Edwards to be careful of the wires she indicated the east side of the house. She did not mention Hales's death because she thought the situation had been corrected. She said she cautioned the boys three or four times. At the time she talked to Thompson on the east side of the house, David was in the back of the house "ten to twenty feet, well maybe more than that, away". She believed her voice was loud enough for him to hear it.
Her husband testified, as did others, that the wires were not obstructed by the shrubbery.
Evidence of the people who were at the scene at various times during the day does not lead to the inescapable conclusion that plaintiff's intestate knew the location of the wires, knew that they carried the voltage that they did, could have seen the wires from his location on the ground, or, as a matter of fact, negligently moved the ladder.
Even if there were no contradictions in the evidence, and there are, we think "reasonable men could differ on the issue of negligence." Gladstein v. South Square Assoc., supra. It follows that the trial court erroneously entered summary judgment for defendant based on plaintiff's intestate's contributory negligence as a matter of law.
For the reasons stated in this opinion, the judgment of the trial court must be
Reversed.
CLARK and ARNOLD, JJ., concur.
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649 So. 2d 418 (1995)
STATE of Louisiana
v.
Alvin CLARK.
No. 94-K-2715.
Supreme Court of Louisiana.
February 9, 1995.
Denied.
MARCUS, J., not on panel.
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769 So. 2d 434 (2000)
Byron K. McKNIGHT, Appellant,
v.
STATE of Florida, Appellee.
No. 2D00-3248.
District Court of Appeal of Florida, Second District.
September 20, 2000.
PER CURIAM.
Byron K. McKnight appeals the trial court's order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. McKnight contends that he was not awarded the proper amount of credit for jail time served prior to his sentencing.
McKnight asserts that he should be entitled to additional credit for jail time because he voluntarily canceled his bond on one charge while he was serving jail time on other unbonded charges. Any decision on whether additional credit is appropriate would require an evidentiary hearing concerning the circumstances surrounding this alleged cancellation. Had McKnight's 3.800 motion been a sworn motion, we could have simply remanded this case with instructions to treat this motion as one filed under Florida Rule of Criminal Procedure 3.850 and to conduct an evidentiary hearing pursuant to rule 3.850(d). However, McKnight's 3.800 motion was unsworn. Therefore, we affirm without prejudice to McKnight to file a properly sworn motion pursuant to Florida Rule of Criminal Procedure 3.850.
PARKER, A.C.J., and CASANUEVA and SALCINES, JJ., Concur.
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167 Cal.App.4th 37 (2008)
JALEH WILKINSON, Plaintiff and Appellant,
v.
GARRETT JASON ZELEN, Defendant and Respondent.
No. B200074.
Court of Appeals of California, Second District, Division Five.
September 25, 2008.
*39 Procopio, Cory, Hargreaves & Savitch, Anthony J. Dain; Law Offices of Eric R. Larson and Eric R. Larson for Plaintiff and Appellant.
Pollard Mavredakis Cranert Crawford & Stevens and Joyce L. Mavredakis for Defendant and Respondent.
OPINION
KRIEGLER, J.
Wiley v. County of San Diego (1998) 19 Cal.4th 532 [79 Cal.Rptr.2d 672, 966 P.2d 983] (Wiley) held that factual innocence is an *40 element of a legal malpractice action stemming from representation in an underlying criminal trial. Later, Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 [108 Cal.Rptr.2d 471, 25 P.3d 670] (Coscia) held that the legal malpractice plaintiff must obtain postconviction exoneration in the underlying case in order to establish the element of factual innocence required by Wiley. Addressing an issue left open in Sangha v. LaBarbera (2006) 146 Cal.App.4th 79 [52 Cal.Rptr.3d 640] (Sangha), we now hold that a legal malpractice plaintiff must prove factual innocence and exoneration as to all transactionally related offenses comprising the basis for the underlying criminal proceeding in order to maintain a malpractice action.
Plaintiff and appellant Jaleh Wilkinson was convicted by jury of one felony and two misdemeanors while represented by defendant and respondent Garrett Jason Zelen and the Law Offices of Garrett J. Zelen (Zelen). The judgment was affirmed on direct appeal by the California Supreme Court, but an order to show cause returnable in the trial court was issued by the Court of Appeal on Wilkinson's petition for writ of habeas corpus, which alleged that Zelen provided incompetent representation at trial. The prosecution did not oppose the habeas corpus petition, which was granted, and conviction on all three counts was vacated. Pursuant to a plea bargain, Wilkinson then entered no contest pleas to two misdemeanors.
Wilkinson filed the instant action for legal malpractice and breach of contract against Zelen.[1] The trial court sustained Zelen's demurrer to the operative first amended complaint (FAC) without leave to amend, on the basis that Wilkinson could not plead she was factually innocent and she was not exonerated by postconviction relief, as required by Coscia and Wiley. We hold the demurrer was properly sustained without leave to amend.
Allegations of the FAC
Wilkinson alleged she retained Zelen to represent her in a criminal action, in which she was convicted by jury in October 2000 of all chargesfelony battery on a custodial officer (Pen. Code, § 243.1), misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)) and failing to stop at the scene of an accident (Veh. Code, § 20002, subd. (a)). Wilkinson was immediately remanded to custody following the verdict and ultimately sentenced to 180 days in county jail, where she suffered severe beatings by other inmates. The convictions were due to the incompetence of Zelen in preparing and assessing the case, attempting to reach a settlement with the prosecutor, and failing to communicate settlement offers. As a result of the conviction, *41 Wilkinson was terminated from employment with a bank and her petition for naturalization, which had been previously approved, was subsequently denied and revoked.
Wilkinson filed a direct appeal and a petition for writ of habeas corpus in the Court of Appeal. The Court of Appeal found a prima facie case for relief based on incompetence of trial counsel and ordered further proceedings in the superior court, where the court exonerated Wilkinson of all charges on which she was convicted. The FAC alleged that Wilkinson is factually innocent of all charges of which she was convicted.
Zelen's Demurrer and Wilkinson's Opposition
Zelen demurred to the FAC on the ground Wilkinson failed to allege factual innocence[2] and could not make such an allegation because of a lack of substantial evidence. Wilkinson filed an opposition to the demurrer, arguing that she did specifically allege factual innocence. She contended her convictions were reversed as a result of the habeas corpus petition alleging incompetence of counsel, the felony conviction was the gravamen of the malpractice action, and that charge was dismissed and she entered a plea to a violation of Penal Code section 148. Wilkinson also argued she can demonstrate actual innocence of the two charges to which she plead no contest.
In connection with the demurrer, Zelen and Wilkinson both filed requests for judicial notice of various records from the underlying criminal action against Wilkinson, her appeal, and proceedings on her petition for writ of habeas corpus.[3] The judicially noticed records reveal the following.
On Wilkinson's direct appeal from her criminal convictions, the Court of Appeal held that the punishment provision of Penal Code section 243.1 violated the constitutional guarantee of equal protection of the law, with one justice dissenting. The Court of Appeal also held that Wilkinson was entitled to an evidentiary hearing regarding the admissibility of polygraph evidence. On the habeas corpus petition, the Court of Appeal concluded Wilkinson had alleged a prima facie case for relief based on ineffective assistance of counsel and issued an order to show cause returnable in the trial court.
The California Supreme Court granted the Attorney General's petition for review on Wilkinson's direct appeal. No petition for review was filed as to *42 Wilkinson's habeas corpus petition. The Supreme Court reversed the judgment of the Court of Appeal, holding that the punishment provision of Penal Code section 243.1 does not violate equal protection, and Wilkinson was not entitled to an evidentiary hearing on the admissibility of her proffered polygraph evidence in view of Evidence Code section 351.1. (People v. Wilkinson (2004) 33 Cal.4th 821 [16 Cal.Rptr.3d 420, 94 P.3d 551].) The Supreme Court expressed no opinion on the habeas corpus claim as it was not within the scope of the grant of review. (Id. at pp. 829, fn. 1, 852.)
The habeas corpus petition was then addressed in the trial court pursuant to the Court of Appeal's order to show cause. The prosecution did not file a return to the order to show cause. The prosecutor orally stated she did not oppose relief and was interested in disposing of the case through a negotiated settlement with Wilkinson. With no opposition, the trial court granted Wilkinson's habeas corpus petition, finding the allegations in the petition were "sufficiently made out." The convictions on all three counts the felony and two misdemeanorswere vacated. As part of a negotiated case settlement, Wilkinson entered no contest pleas to the original Vehicle Code section 23152, subdivision (a) charge, as well as an added misdemeanor violation of Penal Code section 148, subdivision (a)(1). The two remaining countsthe felony violation of Penal Code section 243.1 and misdemeanor violation of Vehicle Code section 20002, subdivision (a)were dismissed on the People's motion.
Probation was granted on the two misdemeanor counts. The trial court immediately found Wilkinson had successfully completed probation, which was ordered terminated. The convictions were ordered "expunged" under Penal Code section 1203.4.
Ruling on the Demurrer and Judgment
The trial court sustained Zelen's demurrer without leave to amend. The court indicated Wilkinson had not been found innocent of all charges relating to the action. The court rejected the argument that the felony charge of battery on a custodial officer could be separated from the misdemeanor charges, as all charges arose from the same incident. The court was of the view Wilkinson failed to show she was factually innocent of all the charges and that she had been exonerated. Judgment was entered in favor of Zelen. Wilkinson filed a timely notice of appeal.
DISCUSSION
(1) Wilkinson argues the trial court erred in sustaining the demurrer to the first amended complaint. She reasons that the postconviction relief, based on ineffective assistance of counsel at trial, satisfies the pleading requirement *43 that a legal malpractice action stemming from a criminal case cannot be pursued without proof of actual innocence. Wilkinson contends her legal malpractice action is not barred by her no contest pleas to two misdemeanors. She also contends that she should be allowed leave to amend if the order sustaining the demurrer is affirmed. We hold the demurrer was properly sustained, as the judicially noticed court records demonstrate that Wilkinson cannot establish factual innocence or exoneration, and leave to amend was properly denied.
Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (Ibid.; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317] (Aubry).) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. (Zelig, supra, 27 Cal.4th at p. 1126.) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. (Ibid.)" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 [62 Cal.Rptr.3d 614, 161 P.3d 1168].) In ruling on a demurrer, the court may "`take judicial notice of a party's earlier pleadings and positions as well as established facts from both the same case and other cases. . . .' [Citations.]" (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491 [49 Cal.Rptr.3d 227].)
Supreme Court Description of the Facts in the Underlying Action
As noted above, the California Supreme Court granted review of the decision of the Court of Appeal on Wilkinson's direct appeal. The following is the Supreme Court's summary of the facts from Wilkinson's criminal trial.
"At trial, the prosecution presented evidence that, in the early morning hours of February 27, 1999, a motorist observed defendant driving erratically on a street in the City of Santa Monica. Defendant's vehicle crossed over the center divider, struck a parked car, and continued down the street, swerving between lanes. Defendant eventually stopped her car at a curb and placed her head on the front passenger seat. After the motorist telephoned the police, officers responded and tapped on the window of defendant's parked car, *44 whereupon defendant looked at one of the officers and drove off. The police gave chase for three blocks before defendant stopped. Defendant, who smelled strongly of alcohol and exhibited slurred speech, indicated she had consumed some drinks but not many. She could not complete a field sobriety test and did not respond when told she was required to submit to a blood or breath test for alcohol.
"Officers transported defendant to the police station. She was belligerent during booking and resisted a patsearch. At one point, defendant grabbed a custodial officer's arm with both hands, causing a visible welt. When taken to a holding cell, defendant charged at an officer and yelled, kicked, and banged at the door. After the police reminded defendant that she would have to submit to a blood or breath test, defendant covered her ears, stated `I can't hear you,' and began running around inside the cell. An officer testified defendant appeared to be under the influence of alcohol but not of drugs.
"Defendant testified in her own defense as follows. On the night in question, defendant, a bank vice-president, went to a bar, where she met a man who offered to buy her a drink. She accepted and eventually consumed two glasses of wine. The man invited defendant to dinner, and they agreed to meet at a Santa Monica restaurant. At the restaurant, defendant consumed three alcoholic beverages over the course of three hours while she waited for the man, but he never arrived. She left her drink several times to use the restroom and to smoke a cigarette outside. She eventually left the restaurant, driving away without feeling any signs of intoxication. The next thing she remembered was waking up in jail, with no recollection of her encounter with the officers. After her release from custody, defendant filed a police complaint alleging she had been drugged.
"A toxicologist, testifying on behalf of the defense, expressed the opinion that on the night in question defendant was under the influence of alcohol and gamma hydroxy butyrate (hereafter GHB), commonly known as a `date rape' drug, basing his opinion on a review of the police report and a videotape of defendant's conduct in the holding cell. GHB depresses the nervous system, exaggerates the effects of alcohol, and may cause drowsiness and memory loss. Depending upon a person's personality, the drug may make a person more emotional and combative. The toxicologist also suggested that if defendant was not under the influence of GHB, she must have been visibly drunk when she left the restaurant in order for her to exhibit the effects of intoxication so long after her last drink. A City of Concord police officer, testifying for the defense as a drug recognition expert, stated that defendant's symptoms appeared much more severe than what would be expected of someone who had consumed five alcoholic drinks over the course of several hours. [¶] . . . [¶]
*45 "The jury convicted defendant as charged, and the trial court placed defendant on formal probation for three years." (People v. Wilkinson, supra, 33 Cal.4th at pp. 828-829.)
The Requirement of Factual Innocence
(2) Factual innocence is an element of a legal malpractice cause of action stemming from representation in a criminal action. "The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433]; Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621 [33 Cal.Rptr.2d 276].) In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence. (Wiley v. County of San Diego, supra, 19 Cal.4th at p. 545.)" (Coscia, supra, 25 Cal.4th at pp. 1199-1200.) "If the defendant has in fact committed a crime, the remedy of a new trial or other relief is sufficient reparation in light of the countervailing public policies and considering the purpose and function of constitutional guaranties." (Wiley, supra, 19 Cal.4th at p. 543.)
(3) The court in Wiley explained that safeguards built into the criminal law systemincluding proof beyond a reasonable doubt, the exclusionary rule, and the availability of postconviction reliefdistinguish malpractice actions relating to criminal defendants from those involving parties to civil litigation, where a simple "but-for" test of causation is sufficient. "In the criminal malpractice context, by contrast, a defendant's own criminal act remains the ultimate source of his predicament irrespective of counsel's subsequent negligence. Any harm suffered is not `only because of' attorney error but principally due to the client's antecedent criminality." (Wiley, supra, 19 Cal.4th at p. 540.)
As a result, postconviction relief is often sufficient to afford a criminal defendant what he or she otherwise would have received if competent representation had been provided, including "dismissal of the charges, a reduced sentence, [or] an advantageous plea bargain. . . . If the defendant has in fact committed a crime, the remedy of a new trial or other relief is sufficient reparation in light of the countervailing public policies and considering the purpose and function of constitutional guaranties." (Wiley, supra, 19 Cal.4th at p. 543.)
*46 Wilkinson cannot allege factual innocence under Wiley. To the contrary, she entered no contest pleas to two misdemeanors in order to compromise the charges which resulted in her conviction by jury, a result inconsistent with factual innocence in that "defendant has in fact committed a crime . . . ." (Wiley, supra, 19 Cal.4th at p. 543.) Moreover, Wilkinson obtained the type of postconviction relief envisioned by Wiley as sufficient to cure the harm of incompetent representation, since the trial court granted her habeas corpus petition and Wilkinson received a more favorable disposition that did not include a felony. The postconviction relief obtained by Wilkinson was sufficient to cure the harm, in that she was able to successfully seek "dismissal of the charges, a reduced sentence, [or] an advantageous plea bargain." (Id. at pp. 542-543.)
It bears emphasis that no court has ever suggested that Wilkinson is factually innocent of any of the charged offenses, including the felony battery on a custodial officer. To the contrary, she was convicted by a jury and her conviction as to all counts was affirmed on appeal. Her habeas corpus petition did not raise an issue of factual innocence, but was based on constitutionally inadequate representation by Zelen. After obtaining relief by her habeas corpus petition, Wilkinson voluntarily entered no contest pleas to two misdemeanors, one of which was part of the original judgment in the criminal action, and both were based on the same course of conduct for which she was originally charged. Given this record, the trial court did not err in sustaining the demurrer on the basis Wilkinson could not establish factual innocence.
The Requirement of Exoneration
(4) In Coscia, the Supreme Court addressed an issue left open in Wiley: "whether a former criminal defendant must obtain exoneration by postconviction relief as a prerequisite to obtaining relief for legal malpractice." (Coscia, supra, 25 Cal.4th at p. 1197.) Coscia plead guilty to one count of conspiracy to violate federal securities laws. He later brought a malpractice action, but the trial court sustained a demurrer without leave to amend. Coscia argued he should have been afforded leave to amend to allege that he plead guilty although he was factually innocent. The Court of Appeal reversed the order sustaining the demurrer, concluding "that a plaintiff in a criminal malpractice action who pleaded guilty to the underlying offense is not collaterally estopped from proving actual innocence." (Coscia, supra, at p. 1199.) The Supreme Court granted review and reversed the Court of Appeal, holding "exoneration by postconviction relief is a prerequisite to recovery for legal malpractice arising out of a criminal proceeding . . . ." (Ibid.; see also Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357 [6 Cal.Rptr.3d 10].)
*47 Separate and apart from Wilkinson's failure to establish factual innocence under Wiley, the decision in Coscia serves as an independent bar to Wilkinson's action for legal malpractice, as she did not obtain "exoneration" by her habeas corpus petition. "As discussed, public policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, the policies reviewed in Wiley preclude recovery in a legal malpractice action." (Coscia, supra, 25 Cal.4th at p. 1201.) "For all these reasons, we conclude that a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal casefor example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus reliefas a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel." (Id. at p. 1205, fn. omitted.)
The Coscia requirement of exoneration was applied in Sangha to a situation close, but not identical, to that presented in the instant case. While represented by LaBarbera, Sangha plead guilty to felony vandalism in exchange for dismissal of a criminal threats charge. He later obtained new counsel, who successfully had the plea set aside with the prosecutor's stipulation. Sangha then entered a guilty plea to misdemeanor vandalism, a lesser included offense to the felony vandalism charge. Sangha was placed on informal probation and 41 days later, the trial court granted Sangha's petition to expunge the misdemeanor conviction under Penal Code section 1203.4. Sangha then sued LaBarbera for legal malpractice, alleging negligence in the investigation and handling of the action resulting in the felony plea, and further alleging factual innocence of the felony charge. (Sangha, supra, 146 Cal.App.4th at p. 83.)
The trial court granted LaBarbera's summary judgment motion on two grounds: Sangha could not establish factual innocence, and he failed to show postconviction exoneration as required by Coscia. (Sangha, supra, 146 Cal.App.4th at pp. 83-84.) "Applying the policy factors discussed in Wiley and Coscia, we conclude Sangha must show actual innocence on the misdemeanor vandalism offense, even though Sangha limited his malpractice claim to the representation he received on the felony vandalism charge." (Sangha, supra, at p. 88.) Moreover, "[p]ostconviction exoneration is a `final disposition' of the underlying case. (Coscia, supra, 25 Cal.4th at p. 1205.) Probation, however short, is not a final disposition exonerating the criminal defendant. Here, Sangha failed to introduce any evidence he received postconviction relief on his misdemeanor conviction." (Sangha, supra, at p. 90.)
The only distinction between Sangha and the instant case is that Sangha ultimately entered a plea to a necessarily included offense, while Wilkinson's *48 pleasto driving under the influence and interfering with an officer in the performance of his or her dutywere transactionally related offenses that did not qualify as necessarily included offenses of battery on a custodial officer.[4] The court in Sangha specifically left open the issue of whether Coscia's requirement of exoneration applies to transactionally related offenses. "Because the issue has no bearing on our decision, we do not decide whether the actual innocence requirement applies to all transactionally related offenses." (Sangha, supra, 146 Cal.App.4th at p. 90, fn. 8.)
Turning to the issue left open by Sangha, we hold that Wilkinson must be exonerated of all transactionally related offenses in order to satisfy the holding in Coscia. Because the judicially noticed facts unequivocally demonstrate that Wilkinson plead no contest to two offenses transactionally related to the felony charge of battery on a custodial officer in order to settle the criminal action, and she was placed on probation for those offenses, she cannot in good faith plead exoneration, and the demurrer was properly sustained.
This conclusion is consistent with the thrust of both Wiley and Coscia that one who engages in criminal conductwhich Wilkinson undisputedly did may not recover in a legal malpractice action. Other remedies, such as a new trial or a plea to a reduced offense, as happened here, are a sufficient remedy for legal malpractice in a criminal prosecution. (Wiley, supra, 19 Cal.4th at p. 543.) There is nothing in Wiley or Coscia that suggests our Supreme Court has any inclination to carve out an exception that would parse transactionally related offenses in the manner urged by Wilkinson so as to allow a person convicted of multiple offenses to maintain a malpractice action. To the contrary, the gist of Wiley and Coscia is that one who commits a criminal offense may not bring a legal malpractice action.
*49 We reject the suggestion that because this case reaches us at the demurrer stage a different result is required. In Coscia, the court affirmed an order sustaining a demurrer on the ground the plaintiff could not establish exoneration of a charge to which he had plead guilty or no contest. (Coscia, supra, 25 Cal.4th at pp. 1204-1205.) The only reason leave to amend was granted in Coscia was because the demurrer was sustained before Wiley held that factual innocence was an element of a legal malpractice action following a criminal conviction. (Id. at p. 1211.) In light of the undisputed facts that are properly before the court by way of judicial notice, Wilkinson cannot in good faith plead exoneration of all transactionally related criminal charges and the demurrer was properly sustained.
As Coscia, Wiley, and Sangha make clear, a plaintiff in a legal malpractice action based on an attorney's handling of a criminal action may not prevail unless he or she is factually innocent and exonerated of criminal liability. Wilkinson fails on both levels and the demurrer was properly sustained.
Leave to Amend
Wilkinson asks for leave to amend the complaint in the event this court determines the complaint was too broad and should be limited to a claim for damages on the felony Penal Code section 243.1 charge. The trial court did not abuse its discretion in denying leave to amend.
It is an abuse of discretion to deny leave to amend a complaint after a demurrer is sustained if there is a reasonable possibility that the pleading can be cured by amendment. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854 [132 Cal.Rptr.2d 444].) The burden is on the plaintiff to demonstrate how he or she can amend the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) A plaintiff can make this showing in the first instance to the appellate court. (Lee v. Los Angeles County Metropolitan Transportation Authority, supra, 107 Cal.App.4th at p. 854; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 321-322 [102 Cal.Rptr.2d 13].)
The problem with Wilkinson's complaint is not that it is too broad in that it encompasses both the felony and misdemeanor charges against her. The difficulty with the complaint is that, given the immutable facts, Wilkinson cannot in good faith plead factual innocence of a crime or exoneration.
DISPOSITION
The judgment is affirmed. Zelen is awarded his costs on appeal.
Arsmtrong, Acting P. J., concurred.
*50 MOSK, J., Dissenting.
This case raises an issue not considered in Wiley v. County of San Diego (1998) 19 Cal.4th 532 [79 Cal.Rptr.2d 672, 966 P.2d 983] (Wiley), Coscia v. McKenna & Cunio (2001) 25 Cal.4th 1194 [108 Cal.Rptr.2d 471, 25 P.3d 670] (Coscia) or Sangha v. LaBarbera (2006) 146 Cal.App.4th 79 [52 Cal.Rptr.3d 640] (Sangha). The court in Sangha specifically left open the issue raised in this case. (Sangha, supra, at p. 90, fn. 8.) I believe the trial court erred in determining that plaintiff and appellant Jaleh Wilkinson (Wilkinson) could not plead a cause of action for malpractice. I would reverse the judgment to allow Wilkinson the opportunity to attempt to plead facts sufficient to state such a cause of action.
A jury convicted Wilkinson of one felony (Pen. Code, § 243.1 [felony battery on a custodial officer]) and two misdemeanors (Veh. Code, §§ 23152, subd. (a) [driving under the influence], 20002, subd. (a) [failing to stop at the scene of an accident]). Wilkinson was represented at her criminal trial by defendant and respondent Garrett Jason Zelen and the Law Offices of Garrett J. Zelen (collectively Zelen). Although the California Supreme Court affirmed Wilkinson's convictions on direct appeal (People v. Wilkinson (2004) 33 Cal.4th 821 [16 Cal.Rptr.3d 420, 94 P.3d 551]), the Court of Appeal issued an order to show cause returnable in the trial court on Wilkinson's petition for a writ of habeas corpus. Wilkinson alleged in her petition that Zelen had provided ineffective representation at her trial. The prosecution did not oppose the habeas corpus petition. The trial court granted Wilkinson a writ of habeas corpus and vacated her convictions on all three counts. Pursuant to a plea agreement, Wilkinson subsequently entered no contest pleas to two misdemeanor counts. (Veh. Code, § 23152, subd. (a) [driving under the influence]; Pen. Code, § 148 [resisting, delaying or obstructing a public officer, peace officer, or emergency medical technician].)
Wilkinson sued Zelen for legal malpractice and breach of contract. The trial court sustained Zelen's demurrer to Wilkinson's first amended complaint without leave to amend on the basis that Wilkinson had not been exonerated by postconviction relief and could not plead that she was actually innocent, citing Coscia, supra, 25 Cal.4th 1194 and Wiley, supra, 19 Cal.4th 532.
I would reverse the judgment. Wilkinson obtained postconviction relief by obtaining a writ of habeas corpus. Although Wilkinson subsequently pleaded no contest to two misdemeanor counts, she should have the opportunity to attempt to plead actual innocence as to the felony conviction that was vacated by the writ of habeas corpus and that formed the gravamen of her malpractice claim against Zelen, and to plead that the felony conviction was unrelated to the two counts to which she pleaded no contest.
*51 DISCUSSION
A. Exoneration
In Coscia, supra, 25 Cal.4th 1194, the Supreme Court held that a plaintiff alleging malpractice against an attorney who represented the plaintiff in criminal proceedings resulting in a conviction must allege facts showing that the plaintiff obtained postconviction relief for that conviction "in the form of a final disposition of the underlying criminal casefor example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief." (Id. at p. 1205.) Wilkinson alleged such facts. The trial court granted a habeas corpus writ, and Wilkinson's three convictions were vacated. The felony count was dismissed on the People's motion. Wilkinson's claim for malpractice relates only to her conviction on the felony count.
Sangha, supra, 146 Cal.App.4th 79, is distinguishable. In that case, the plaintiff originally pleaded guilty to felony vandalism. The plea was later set aside, and the plaintiff pleaded guilty to the lesser included offense of misdemeanor vandalism, based on the same conduct charged in the felony. (Id. at pp. 82-83.) As a result, the final disposition of the crime that was the basis of the plaintiff's malpractice complaint (the felony vandalism conviction) was not exoneration, but a conviction on a lesser included offense and a sentence of probation. The court in Sangha therefore held that the plaintiff had not obtained a final disposition of the vandalism charge that exonerated him. (Id. at p. 90.) The court appeared to conflate the requirements for actual innocence and those for exoneration.
Unlike in Sangha, supra, 146 Cal.App.4th 79, the plaintiff here, Wilkinson, may be able to allege in an amended pleading that her misdemeanor convictions are based on criminal conduct separate and distinct from the conduct that gave rise to her conviction for felony battery of a custodial officer. As described by the California Supreme Court, the crimes of which Wilkinson originally was convicted arose from two distinct courses of conducther conduct in driving under the influence and fleeing from police, on the one hand, and her conduct after she had been arrested, transported to the jail and booked, on the other hand. (People v. Wilkinson, supra, 33 Cal.4th at pp. 828-829.)
Whether two crimes are transactionally related is a factual determination requiring consideration of all the circumstances relating to the admitted offense. (People v. Calhoun (2007) 40 Cal.4th 398, 406-407 [53 Cal.Rptr.3d 539, 150 P.3d 220]; People v. Harvey (1979) 25 Cal.3d 754, 758-759 [159 Cal.Rptr. 696, 602 P.2d 396]; People v. Beagle (2004) 125 Cal.App.4th 415, *52 421-422 [22 Cal.Rptr.3d 757]; People v. Guevara (1979) 88 Cal.App.3d 86, 92-94 [151 Cal.Rptr. 511].) Crimes are transactionally related only if they involve "facts from which it could . . . be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count." (People v. Beagle, supra, 125 Cal.App.4th at p. 421.) Here, Wilkinson's malpractice complaint is based on her conviction for the felony charge of battery of a custodial officer, which occurred after she had been arrested and transported to the jail. One misdemeanor count of which Wilkinson now stands convicteddriving under the influencenecessarily was based on her conduct prior to her arrest, and thus separate from that involved in the felony battery charge. If the other misdemeanor count of which she stands convictedobstructing a peace officeralso is not factually related to the felony battery charge, then those offenses are not transactionally related. Nothing in Coscia, supra, 25 Cal.4th 1194, requires that a plaintiff obtain postconviction exoneration for crimes different than those that underlie her malpractice action. Even assuming that Wilkinson had not adequately pleaded exoneration by alleging the granting of a writ of habeas corpus, she should be given the opportunity to plead that she has satisfied the exoneration requirement by not entering a plea of no contest to the felony battery crime or any crime transactionally related to that crime.
In addition to whether the charges were transactionally related, it might be relevant to the issue of exoneration whether Wilkinson pleaded no contest to the misdemeanor charge of obstructing a peace officer in exchange for the People's agreement not to pursue the felony battery count. Neither the complaint nor the matters subject to judicial notice conclusively establish that she did so. If the existence of such a plea bargain is determinative, Wilkinson should be given the opportunity to plead that her plea of no contest was not given in exchange for the People's agreement not to proceed on the felony charge.
B. Actual Innocence
The court in Sangha, supra, 146 Cal.App.4th 79, a case that arose on summary judgment, raised the following point: "The parties disagree on the scope of the actual innocence requirement. Does it apply only to specific offenses that are the subject of a plaintiff's malpractice action? Does this requirement encompass lesser included offenses? Or, more broadly, does it apply to all related offenses that were or might have been charged? (Wiley, supra, 19 Cal.4th at p. 547 (conc. opn. of Werdegar, J.).) Wiley does not directly address these issues." (Sangha, supra, 146 Cal.App.4th at p. 86.) The court stated, "Our analysis is two-fold: Even assuming Sangha need only show actual innocence on the felony vandalism charge, his separate statement fails to demonstrate a triable issue of fact on this issue. And even if Sangha *53 could surmount this obstacle, we conclude the rationale of Wiley and Coscia requires a plaintiff in a criminal legal malpractice case to show actual innocence and postconviction exoneration on any guilty finding for a lesser included offense, even though the plaintiff alleges he received negligent representation only on the greater offense. Because Sangha fails to make this showing, he cannot prevail on appeal." (Sangha, supra, 146 Cal.App.4th at p. 87.)
The court in Sangha, supra, 146 Cal.App.4th 79, specified that a plaintiff asserting malpractice in a criminal matter cannot establish actual innocence if he or she was found guilty of a lesser included offense. Here, as noted above, the offenses to which plaintiff ultimately entered no contest pleasdriving under the influence and obstructing a peace officermay be separate from and unrelated to the felony count of battery of a custodial officer. If Wilkinson can plead facts that the two misdemeanors of which she stands convicted involved conduct unrelated to the felony battery conviction (see People v. Wilkinson, supra, 33 Cal.4th at pp. 827-828), she can state a cause of action for professional negligence.[1]
If Wilkinson can plead such facts, the policy considerations upon which the court in Wiley, supra, 19 Cal.4th 532, based the requirement of actual innocence would not be implicated in this case. She would not profit from the criminal conduct of which she stands convicted (id. at p. 537); she would not escape or diminish her punishment for that conduct (id. at pp. 537-538); and there would be no prospect of conflicting resolutions on the issue of whether she committed a battery against a custodial officer (id. at p. 544). Moreover, although Wilkinson has obtained postconviction relief on her felony conviction, she has not been afforded full relief for her attorney's alleged negligence. She allegedly suffered damages resulting specifically from her conviction on the felony count, including the loss of her job and denial of her petition for naturalization, that are readily compensable in money damages. (Id. at pp. 542-543.)
The difference between this case and both Wiley, supra, 19 Cal.4th 532, and Sangha, supra, 146 Cal.App.4th 79, is illustrated by a troubling hypothetical raised by plaintiff's attorney in the trial court. "Suppose a defendant is convicted of a multi-count indictment and one of the convictions is first degree murder and another conviction is trespass, and a habeas corpus petition is granted, and the murder conviction is dismissed outright, yet the defendant pleads nolo contendere to the trespass, which is essentially the situation we have here. [¶] And does public policy prevent that defendant *54 from suing his or her attorney on the felony conviction when they have been actually innocent of that crime." The trial court said that, although the result was "possibly unjust," it was bound by Wiley.
The court in Wiley, supra, 19 Cal.4th 532, in quoting from a prior Court of Appeal decision, states, "In sum, `the notion of paying damages to a plaintiff who actually committed the criminal offense solely because a lawyer's negligence failed to secure an acquittal is of questionable public policy and is contrary to the intuitive response that damages should only be awarded to a person who is truly free from any criminal involvement.'" (Wiley, supra, 19 Cal.4th at p. 539, italics added, quoting Holliday v. Jones (1989) 215 Cal.App.3d 102, 115, fn. 7 [264 Cal.Rptr. 448].) The court in Wiley also said that "`allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.'" (Id. at p. 537.) The court added, "If the defendant has in fact committed a crime, the remedy of a new trial or other relief is sufficient reparation in light of the countervailing public policies and considering the purpose and function of constitutional guaranties. [Citations.]" (Id. at p. 543.)
Such language, if read broadly, could support the conclusion that a malpractice plaintiff must establish actual innocence of any criminal conduct in the criminal case in which the attorney represented the plaintiff, even if the plaintiff ultimately does not stand convicted of the particular crime relied upon in the malpractice claim. But the court in Wiley, supra, 19 Cal.4th 532, did not address the situation here. And neither did the court in Sangha, supra, 146 Cal.App.4th 79. If there can be no liability for malpractice in connection with one count when there are no contest pleas as to unrelated counts, then we allow the injustice to which the trial court alluded in connection with the hypothetical. I read the court's language in Wiley to mean that no malpractice action can be brought if the plaintiff cannot prove actual innocence of all criminal activity arising from the conduct underlying the conviction that is the subject of the malpractice action. The fact that a malpractice plaintiff committed some crimeno matter how unrelated to the crime of which the plaintiff was exonerated and is innocentshould not bar the plaintiff's malpractice action based on the attorney's negligence in connection with the exonerated crime.
This case arises on a demurrer. The trial court's decision was based on the premise that under no circumstances could Wilkinson state a cause of action. As explained above, Wilkinson was exonerated on the felony battery count. She should have the opportunity to attempt to plead and establish that she was, in fact, innocent of that offense and any lesser included or related offense, and that the crimes to which she pleaded no contest involved facts *55 unrelated to the felony battery count of which she was exonerated. (See Coscia, supra, 25 Cal.4th at p. 1211 [granting leave to amend to allege actual innocence].)
It is true that no court has determined that plaintiff is actually innocent of felony battery. But that is not dispositive. Indeed, the Supreme Court stated in Coscia, supra, 25 Cal.4th at page 1205, that a plaintiff may maintain a malpractice case so long as the plaintiff obtains "postconviction relief in the form of a final disposition of the underlying criminal casefor example, by . . . reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus reliefas a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel." Here, plaintiff has fulfilled the prerequisite and now pleads and seeks to prove actual innocence.
I would reverse the judgment.
NOTES
[1] Similar causes of action were alleged against Lawrence Wolf and the Law Offices of Lawrence Wolf. Wolf is not a party to this appeal.
[2] Zelen was incorrect, as Wilkinson expressly alleged factual innocence. The argument is not pursued on appeal.
[3] The parties also filed motions for judicial notice on appeal. The unopposed motions are granted.
[4] A necessarily included offense is a crime in which (1) the statutory elements of the greater offense include all of the statutory elements of the lesser offense, or (2) the facts alleged in the accusatory pleading include all of the elements of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228 [45 Cal.Rptr.3d 353, 137 P.3d 184].) Under the statutory elements test, Penal Code section 148, subdivision (a)(1) is not a necessarily included offense of battery on a custodial officer under Penal Code section 243.1, because section 148 may be violated without an unlawful touching. (People v. Green (1997) 51 Cal.App.4th 1433, 1437-1438 [59 Cal.Rptr.2d 913] [sufficient evidence of Pen. Code, § 148 violation existed where defendant removed a child to avoid an interview of the child by peace officers and also intimidated the child into denying the commission of an offense]; People v. Quiroga (1993) 16 Cal.App.4th 961, 967-968 [20 Cal.Rptr.2d 446] [arrestee's refusal to provide his name at the time of booking is sufficient evidence to support a violation of Pen. Code, § 148].) The accusatory pleading test has no role in this case, as no formal amended accusatory pleading was filed when the prosecutor verbally amended the information to add the violation of Penal Code section 148, subdivision (a)(1), as part of the case settlement agreement.
[1] The court in Sangha, supra, 146 Cal.App.4th at page 90, footnote 8 said, "Because the issue has no bearing on our decision, we do not decide whether the actual innocence requirement applies to all transactionally related offenses."
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2259869/
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167 Cal.App.4th 486 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
CURTIS BRYANT DeFRANCE, Defendant and Appellant.
No. C055878.
Court of Appeals of California, Third District.
October 9, 2008.
*489 Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MORRISON, Acting P. J.
When Stephan Elaine Brophy tried to stop defendant Curtis Bryant DeFrance from stealing her son's car, defendant ran over Brophy and killed her. Defendant was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a)) with a robbery special circumstance (Pen. Code, § 190.2, subd. (a)(17)) and a deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)), robbery (Pen. Code, § 211), and vehicle theft (Veh. Code, § 10851, subd. (a)). He was sentenced to life in prison without the possibility of parole, plus one year.
In this very short murder trial, the trial court solicited a stipulation from counsel that the court reporter need not record the jury instructions. Unfortunately, the jury instructions in the clerk's transcript do not accurately reflect the instructions given to the jury. Defendant contends the absence of an accurate record of the oral instructions violates due process and the error was not cured by the attempt to settle the record. We strongly discourage the practice of not recording the oral instructions given to the jury, which practice only gives rise to the problems present in this case. We find, however, that on this record, no prejudicial error occurred.
Defendant raises other claims of error. He contends there is insufficient evidence of robbery because Brophy had no right to control her son's car and the instruction on robbery was inadequate on the issue of constructive possession. He contends the trial court erred in allowing the prosecution to dismiss a juror after the jury was agreed upon and should have been sworn. Further, he contends the court abused its discretion in imposing a $10,000 restitution fine and erred in imposing a parole revocation fine in a case where no parole is possible.
We accept the Attorney General's concession that the parole revocation fine was imposed in error, and otherwise affirm the judgment. We find sufficient evidence of robbery. There was sufficient evidence from which the *490 jury could conclude Brophy had a special relationship with her son to support a finding she had control over his property. While the jury instruction provided little assistance in determining the issue of control, the omission was harmless in this case.
FACTS
Stephan Elaine Brophy lived in a condominium owned by her mother. Two of her adult children, Tristan and Kendrick Holliday, lived with her. The condominium had three bedrooms, but Kendrick usually slept in the living room. The bottom floor had a sliding glass door that opened to a patio. The patio was surrounded by a six-foot fence. A gate in the fence led to the parking lot.
The condo had two designated parking spaces, one of which was covered. Both Tristan and Kendrick had cars. Brophy did not own a car, but sometimes used Tristan's car; she did not use Kendrick's car. Kendrick usually parked in the shaded spot. At the time of the crime, Brophy was using Tristan's car and had parked in the shaded spot, which she preferred, so Kendrick parked in the second, or guest, spot.
Kendrick owned a Toyota Tercel. He bought the car for $2,400 in cash. His mother and grandparents helped him pay for it. The car had recently been stolen and vandalized. Minors had taken it for a joyride and trashed it. The steering column had been damaged and Kendrick used a screwdriver to start the car. The locks were difficult to work, so he did not lock it.
The car was registered in Kendrick's name. His mother was listed on the insurance "just in case," but she never drove it. She borrowed the car once or twice but was afraid to tell her son because the car was hard to drive and he would worry. Kendrick let his sister drive the car once when she was learning to drive a stick shift, but for the most part, only he drove it.
On the morning of July 10, 2005, Tristan was out of town visiting her father and Kendrick was asleep in the living room. Neighbors heard voices in the parking lot. They heard a woman yelling, "get out of that car," and then screeching tires.
When the police arrived, Brophy was on her back in the center of the parking lot. A gelatin-like fluid was coming out of her right ear and there was a tire mark across her torso. There was a skid mark in the street.
That morning J.B. was leaving the Beverages & more! store on Sunrise Boulevard when he saw a light-colored Tercel speed down the road and make *491 an illegal U-turn. He had just picked up his daughter from a nearby hospital and she mentioned someone was brought in with a broken skull. He thought the speeder might be connected to that, so he contacted the police. J.B. identified defendant as the driver and had selected his picture from a lineup.
The Tercel was found shortly after noon in the North Highlands area. Crime scene investigators processed the car and found defendant's palm print on the driver's window.
T.E., a convicted felon with a long criminal history, testified someone named Curtis came to the apartment where he was staying. Curtis said he was trying to steal some lady's car and he ran over her because she tried to stop him. T.E. was in jail facing a drug felony, with two strikes. The charge was reduced to a misdemeanor. The parties stipulated T.E. received no consideration for his statements or testimony.
Mark Super, a forensic pathologist, performed an autopsy on Brophy. She was five feet six inches tall and weighed 264 pounds. She had a large abrasion on the right side of her head, a tripolar laceration on the back of her head and a fractured skull. She had a subdural hematoma, bruising over her body, and a fractured right ankle. The cause of death was blunt force head, thoracic and right leg injuries. The injuries were consistent with being run over. The most significant injury medically was to the head.
David Dowty, a member of the California Highway Patrol Multidisciplinary Accident Investigation Team and a certified expert in collision reconstruction, gave an opinion as to what happened. In his opinion, Brophy was behind the car when it backed up and hit her. She fell to the ground, striking her head, and the car ran over her. Based on the skid marks, Dowty believed the car had accelerated rapidly. The driver would have been able to feel the impact.
In 2000, Officer Jason Warren stopped defendant when he was speeding. The car he was driving was stolen.[1] Defendant pleaded guilty to vehicle theft.
DISCUSSION
I. The Appellate Record of Jury Instructions Is Adequate for Review
Defendant contends there is no reliable record of the jury instructions actually read or given to the jury because the oral instructions were not *492 recorded and the written instructions in the clerk's transcript are not exactly what the jury was given. He contends the standards for settling the record were not met, as defense counsel had no recollection of the matter at issue and the prosecutor who tried the case was not present for settling the record; therefore, he asserts, the record was not settled. He contends counsels' stipulation to not record the jury instructions does not waive the error because such a waiver must be done by defendant personally. It would be ineffective assistance of counsel to stipulate to not recording the instructions because there is no plausible tactical reason to do so. Further, an oral stipulation is ineffectual under the California Rules of Court. Defendant contends the jury instructions were a critical part of this case and the absence of a reliable record of the instructions for appellate review deprives him of due process.
Background
After closing arguments, copies of the written jury instructions were distributed to the jurors. The court began to read the instructions. After a few instructions were read, the court stopped and called for a sidebar. After the unreported discussion, the court asked the parties to stipulate that the court reporter need not transcribe the instructions. The parties agreed and the remaining instructions were read off the record.
The clerk's transcript on appeal contains a set of written instructions labeled "Jury Instructions Given." These instructions begin with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 200, on the duties of judge and jury, through CALCRIM No. 3590, the final instruction on discharge of jury.
The record contains two versions of CALCRIM No. 521 on degrees of murder. The first version is titled: "521. People's PinpointMurder: Degrees[.]" This instruction explains the defendant is being prosecuted for first degree murder under two theories: willful, deliberate, and premeditated murder, and felony murder in the commission of a robbery. For murder during the commission of a robbery, the instruction provides: "To prove that the defendant is guilty of first degree murder under this theory, the People must prove; [¶] 1. That the defendant committed robbery; [¶] 2. That the defendant intended to commit robbery; [¶] AND[.]" At this point the instruction ends.
The next page is another version of CALCRIM No. 521. The heading on this instruction reads: "This instruction was drafted by the People. The defense objected to the title of `People's Pinpoint' going to the jury, so the following heading was given to the jury in their packet. [¶] 521. Court's Instruction Murder: Degrees[.]" The remainder of this instruction is the *493 same as the previous page, except the word "AND" is missing. On page 197 of the clerk's transcript is the remainder of the instruction, beginning with: "3. That while committing robbery, the defendant did an act that caused the death of another person."
As noted above, this set of jury instructions includes the final instruction to be given upon discharge of the jury, CALCRIM No. 3590, as well as an instruction to the alternate jurors. Presumably, these instructions were not given to the jury when they began deliberations.
On August 2, 2007, appellate counsel wrote the superior court asking to augment the record to include the packet of instructions actually provided to the jury. The court clerk declared the instructions in the file were the official set and the only saved set.
Appellate counsel then moved to settle the record, pointing out the problems, noted above, with the set of instructions in the clerk's record.
The motion was granted. The trial court was ordered "to hold a hearing forthwith to provide a verbatim record of the oral instructions provided to the jury and a reliable exact duplicate of the written instructions viewed by the jurors."
The trial court held a hearing; present were the judge who presided at trial, the court clerk, Defense Counsel David Muller, and Robert Gold from the district attorney's office. The assistant district attorney who tried the case, Mark Curry, was not present; he had been appointed to a judgeship. Gold indicated he had communicated with Curry about the instructions.
The judge stated that based on her recollection, page 195 of the clerk's transcript titled "People's Pinpoint" was not given to the jury because the defense objected to the heading. The clerk agreed and Muller had no recollection, but agreed, "it does sound like something that I would do." Gold stated that was also Curry's recollection.
The judge then stated she was "quite clear" that the language at the top of page 196 of the clerk's transcript, noting the defense objection, was not given to the jury. Neither counsel had anything to add.
The record could not be clarified as to whether the instructions given to the jury included the "AND" in CALCRIM No. 521. The court clerk believed the "AND" was dropped when she added the language at the top of the page about the defense objection; the omission was a printing error. The judge had *494 no recollection, neither did Muller. Gold noted he had asked the court clerk for "her last prepared copy" of the instructions; in that set, the "AND" was included.
The record was settled that pages 168 through 214 of the clerk's transcript were given to the jury, except that page 195 was not given and the first two lines of page 196 were not given. Pages 215 through 218 were not given to the jurors. The record could not be settled as to whether the word "AND" was included in the instructions given or read to the jury.
Analysis
It is indisputable that jury instructions are an important part of a criminal trial. Errors in instructions, either alone or together with other trial errors, may mandate reversal of the judgment. (People v. Silva (1978) 20 Cal.3d 489, 493 [143 Cal.Rptr. 212, 573 P.2d 430].) A criminal defendant is entitled to a record on appeal that is adequate to permit meaningful review. (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Howard (1992) 1 Cal.4th 1132, 1166 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Since an accurate record of the instructions given is necessary for appellate review, we hold the better practice is to record all oral instructions given to the jury.
"All instructions given shall be in writing, unless there is a phonographic reporter present and he takes them down, in which case they may be given orally...." (Pen. Code, § 1127.) On appeal, the clerk's transcript must contain "any written jury instructions given by the court." (Cal. Rules of Court, rule 8.320(b)(4).) The reporter's transcript must contain "[a]ll instructions given orally." (Id., rule 8.320(c)(4).)
In People v. Gloria (1975) 47 Cal.App.3d 1 [120 Cal.Rptr. 534], the court considered whether a court reporter was required to make a record of written instructions read to the jury. Because the trial judge could "misread an instruction, misspeak himself or extemporaneously elaborate upon the written instructions, ... we hold it is the duty of a court reporter in a superior court criminal jury trial to make phonographic notes of what the judge says when he instructs the jury so an accurate transcript of the instructions as presented to the jury will be preserved for any appeal." (Id. at p. 6.) The court further held, however, that the normal reporter's transcript need not include the instructions as given. A transcript of those instructions would be required only if appellate counsel contends the written instructions deviate from the instructions orally given to the jury. (Ibid.)
(1) Where, as here, the defendant stipulates to not reporting the oral instructions, the failure to record them has not been found to be error. In *495 People v. Garrison (1989) 47 Cal.3d 746 [254 Cal.Rptr. 257, 765 P.2d 419], the court addressed this issue. "We reject defendant's contention that the failure to report the reading of the instructions denied him due process. The parties stipulated that the court reporter might be excused from reporting the reading of the jury instructions. In light of counsel's stipulation and defendant's failure to suggest that there was any deviation in the reading from the typed copies contained in the record, we find no violation of due process." (Id. at pp. 780-781.)
Generally, a defendant's stipulation not to record a portion of the trial forfeits the claim the record is inadequate for appellate review. (People v. Rogers (2006) 39 Cal.4th 826, 857 [48 Cal.Rptr.3d 1, 141 P.3d 135]; People v. Gaston (1978) 20 Cal.3d 476, 485 [143 Cal.Rptr. 205, 573 P.2d 423] [stipulation that no reporter's transcript of portion of proceedings was needed waived complaint of inadequate record on appeal]; People v. Ladd (1982) 129 Cal.App.3d 257, 263 [181 Cal.Rptr. 29] ["By stipulating that the instructions need not be reported, defendant has waived any claim of error on appeal."].)
Defendant contends his stipulation was not effective because he did not personally stipulate to forego recording the oral instructions. He suggests counsel was ineffective in acceding to the trial court's request for a stipulation.
In determining whether defendant was prejudiced by the lack of an accurate record of jury instructions, the true issue is whether defendant was prejudiced by a jury instruction. Accordingly, we focus on the actual dispute over the jury instructions in this case, not possible problems that may arise absent a reporter's transcript of the jury instructions. We note neither counsel below put on the record any objection to the instructions as read.[2] Nor is there any indication the court supplemented the instructions with extemporaneous comment. "Unless we assume that error was committed where none appears, we can find no possible prejudice to defendant in the stipulation and consequently no basis for a claim of inadequate assistance of counsel. [Citations.]" (People v. Ladd, supra, 129 Cal.App.3d 257, 263.)
Defendant complains it is impossible to know exactly what jury instructions were read to the jury, because the copy in the clerk's transcript is not *496 accurate and the attempt to settle the record was unsuccessful. As the hearing to settle the record shows, the actual dispute as to what was in the jury instructions boils down to whether an "AND" was omitted from CALCRIM No. 521. Notably, defendant does not argue this omission was prejudicial error. Instead, he merely speaks of "arguable error."
Assuming the "AND" was omitted, we find no prejudicial error. The portion of CALCRIM No. 521 addressing felony murder where the murder is committed in the commission of a robbery provides: "To prove that the defendant is guilty of first degree murder under this theory, the People must prove; [¶] 1. That the defendant committed robbery; [¶] 2. That the defendant intended to commit robbery; [¶] AND [¶] 3. That while committing robbery, the defendant did an act that caused the death of another person." Defendant suggests that if the "AND" was omitted, the jury may have believed the People had to prove only one element, rather than all three. That is not plausible. Even without the "AND" the instruction reads as requiring all three elements.[3] Otherwise, the jury could find first degree murder if it found only that defendant robbed or intended to commit robbery, even if no one was killed. "`Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.' [Citation.]" (People v. Williams (1995) 40 Cal.App.4th 446, 457 [46 Cal.Rptr.2d 730].)
While we would prefer a reporter's transcript of the instructions read to the jury, we find no prejudicial error in its absence. The record, as settled, indicates any error in the instructions was harmless. The absence of a record of the oral instructions given did not deprive defendant of due process or the right to a fair trial.
II. There Was Sufficient Evidence of Robbery
Defendant contends there was insufficient evidence of robbery because the car was not taken from the presence of one who had actual or constructive possession of it. Defendant contends the robbery conviction and the robbery special circumstance must fall. In addition the murder conviction must be reversed because it was likely based on felony murder in the commission of a robbery.
*497 (2) "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) The Legislature has limited the victims of robbery to those in either actual or constructive possession of the property taken. (People v. Nguyen (2000) 24 Cal.4th 756, 764 [102 Cal.Rptr.2d 548, 14 P.3d 221].) A person who does not have immediate physical control may nonetheless have constructive possession of property if he has sufficient representative capacity with respect to the owner of the property, "so as to have express or implied authority" over the property. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1113 [131 Cal.Rptr.2d 319].) Constructive possession does not require an absolute right of possession. "For the purposes of robbery, it is enough that the person presently has some loose custody over the property, is currently exercising dominion over it, or at least may be said to represent or stand in the shoes of the true owner." (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143 [47 Cal.Rptr.2d 343].) Constructive possession will be found where the person has a special relationship with the owner of the property. (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 [35 Cal.Rptr.2d 571].)
Courts often recognize the necessary special relationship in robbery cases where business property is taken from the presence of an agent or employee of the business. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 880 [135 Cal.Rptr. 654, 558 P.2d 552] [store security guard], overruled on other grounds as recognized in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8 [12 Cal.Rptr.3d 325, 88 P.3d 56]; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523 [3 Cal.Rptr.3d 835] [janitors employed by business's cleaning company]; People v. Jones (1996) 42 Cal.App.4th 1047, 1054 [50 Cal.Rptr.2d 46] [store truckdriver]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [194 Cal.Rptr. 909] [same]; People v. Poindexter (1967) 255 Cal.App.2d 566, 568-569 [63 Cal.Rptr. 332] [barmaid]; People v. Downs (1952) 114 Cal.App.2d 758, 765 [251 P.2d 369] [janitors].) Even a visitor in a store who was forced to remove and surrender money from the store's cashbox has been held to be a victim of the robbery. (People v. Moore (1970) 4 Cal.App.3d 668, 670-671 [84 Cal.Rptr. 771].)
By contrast, where property is taken from one with no relationship to the owner of the property, such as a Good Samaritan, there is no robbery. In People v. Nguyen, supra, 24 Cal.4th at page 764, the court found a visitor to the business from which property was taken was not a victim of the robbery. In People v. Galoia (1994) 31 Cal.App.4th 595 [37 Cal.Rptr.2d 117], a man collecting money from his video games in a convenience store tried to stop a robbery. The court found he was not a robbery victim. (Id. at pp. 597-599.) In Sykes v. Superior Court, supra, 30 Cal.App.4th 479, the defendant stole a saxophone from one business and was chased and apprehended by a security *498 guard working for another business. There was no special relationship between the business and the security guard from a neighboring business. (Id. at p. 484.)
Courts have also recognized the necessary special relationship for robbery in nonbusiness contexts. For example, in People v. Bekele (1995) 33 Cal.App.4th 1457 [39 Cal.Rptr.2d 797] (disapproved on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14 [82 Cal.Rptr.2d 413, 971 P.2d 618]), a man saw the defendant burglarizing his pickup truck and asked his coworker to help him stop the theft. The coworker struck and chased the defendant, demanding he drop the property, until the defendant threatened him with a gun. The court found that the circumstances were sufficient to support the defendant's conviction of robbery from the coworker because the owner's request for help impliedly authorized the coworker to act in a representative capacity, analogous to a security guard, in striking and chasing down the defendant. Thus, the coworker had constructive possession of the stolen property. (Bekele, at p. 1462.)
A special relationship in a family context was found in People v. Gordon (1982) 136 Cal.App.3d 519 [186 Cal.Rptr. 373] (Gordon). In the instant case, the trial court relied on Gordon in denying defendant's motion to dismiss. In Gordon, two armed robbers entered the home of Joseph and Mary Lopes, bound them and took $1,000, marijuana and a shoulder bag belonging to their adult son, who lived with them but was not at home at the time of the robbery. The court found the evidence that the Lopeses owned and lived in the residence sufficient to support the jury's findings that they possessed their son's property within the meaning of the robbery statute. It reasoned that the jury could properly conclude from such facts that the Lopeses were responsible for protecting personal property belonging to their son who lived in their home. (Id. at pp. 528-529.)
Defendant contends the key to the holding in Gordon was that the goods were inside the parents' house. He argues Gordon is distinguishable because here the car was parked outside. A car, of course, is customarily outside the house; here it was parked in a space designated for the condominium. We disagree that the key to Gordon was the location of the property; rather, it was the relationship of the victims of the robbery to the owner of the property. The Gordon court found that if employees and janitors had constructive possession of their employer's property, "parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home." (Gordon, supra, 136 Cal.App.3d at p. 529.)
(3) We find sufficient evidence to support finding Brophy a victim of robbery. As in Gordon, the owner of the property was her son who lived in *499 her home. While the parents in Gordon denied knowledge of the marijuana that was stolen (Gordon, supra, 136 Cal.App.3d at p. 529), Brophy not only knew about the car, but had a connection to it. She had helped her son buy it, had access to the keys, had driven it, and was named on the insurance. The car was kept in one of the parking spaces designated for the condominium, close enough that she was able to respond when defendant tried to steal it. From these facts, the jury could conclude that Brophy had sufficient "loose custody" over the car to be a victim of robbery.[4] (People v. Hamilton, supra, 40 Cal.App.4th at p. 1143.)
III. There Was No Prejudicial Error in Denying Defendant's Objection to the Robbery Instruction
Defendant contends the trial court erred in overruling his objection that the robbery instruction was inadequate.[5] He contends the instruction was inadequate in explaining the right to control necessary for robbery.
The objections to the instructions were put on the record. Defense counsel stated: "Then the other last substantive objection that I have is CALCRIM instruction of 1600. I believe that's in regards to robbery. I don't believe that the robbery instruction is sufficient in this regard because we live in a common law state where the force used has to be done against the owner of the property or someone that has control or authority over the property, not just any person. And I believe that the instruction is inadequate, so I'd be objecting."
The trial court overruled the objection and instructed the jury in the language of CALCRIM No. 1600 as follows:
"The defendant is charged in Count Two with robbery.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant took property that was not his own;
*500 "2. The property was taken from another person's possession and immediate presence;
"3. The property was taken against that person's will;
"4. The defendant used force or fear to take the property or to prevent the person from resisting;
"AND
"5. When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner's possession for [some] extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.
"The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using force or fear, then he did not commit robbery.
"A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short.
"Two or more people may possess something at the same time.
"A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.
"Fear, as used here, means fear of injury to the person himself or herself.
"Property is within a person's immediate presence if it is sufficiently within his or her physical control [so] that he or she could keep possession of it if not prevented by force or fear.
"An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act."
Defendant contends the instruction's shift from "another person" to "any person," weakens its discussion of ownership. He objects that ownership is mentioned only with respect to the robber's specific intent to deprive the owner. To the extent defendant is contending there is no robbery unless the victim owns the property, he is mistaken. "It is no defense to a charge of robbery (or of theft) that the victim was not the true owner of the property *501 taken." (People v. Moore, supra, 4 Cal.App.3d at p. 670.) A special relationship with the owner of the property, as here, is sufficient. (Sykes v. Superior Court, supra, 30 Cal.App.4th at p. 484.)
Defendant contends the instruction failed to state that the People must prove the victim of the robbery had the right to control the property. He is mistaken. The instruction states the People must prove, "The property was taken from another person's possession and immediate presence." Possession is then defined as, "control over [the property] or the right to control it, either personally or through another person."
Defendant contends the instruction is inadequate in explaining the necessary "right to control." He complains the prosecutor argued the "right to control" in the broadest possible terms, focusing on the fact that Brophy was Kendrick's mother. To the extent he contends the prosecutor's argument was misconduct, he has forfeited the contention by failing to object below. The "failure to object and request an admonition waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective." (People v. Arias (1996) 13 Cal.4th 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980].)
Defendant contends the familial relationship of mother and son is insufficient to establish the right of control necessary for robbery. He relies on cases indicating a family relationship does not establish control for purposes of agency in civil law. Missing from his argument, however, is any authority that civil agency law sets the standard for robbery.
As we have found above, the special relationship between Brophy and Kendrick, that they were mother and son and lived together, coupled with the facts that the car was kept in a designated parking space and Brophy helped pay for the car and was named on the insurance, was sufficient evidence to make her a victim of robbery. Indeed, there was more evidence here of a special relationship than in Gordon. While the instruction could have provided more assistance to the jury in finding she had control, by specifying the factors the jury could consider, its failure to do so did not prejudice defendant where the record does not show the jury had any difficulty in finding the car was taken from Brophy's "possession and immediate presence" and the evidence supporting that determination was uncontradicted. On these facts, constructive possession is established as a matter of law.
IV. There Was Good Cause to Reopen Jury Selection Before the Jury Was Sworn
Defendant contends the trial court erred in permitting the prosecutor to exercise a peremptory challenge to a juror after both sides had accepted the *502 jury panel. He argues once both sides have passed consecutively on the exercise of peremptory challenges, the jury should have been sworn and no further peremptory challenges allowed.
Background
At one point in jury selection, during the exercise of peremptory challenges, both sides passed consecutively. The court indicated they would return after lunch to select the alternates. The panel was not sworn.
After lunch, before resuming jury selection, the parties met in chambers with Juror N. Juror N. expressed concern about serving as a juror because he owned his own business and worked nights. He worked Monday through Thursday. He was concerned because he would have to be up 24 hours straight during the trial.
The defense attorney thought it was too much to ask of a juror and was concerned he would not be alert. The prosecutor thought Juror N. would be okay, noting he did not raise the issue until the last minute. The court was uncomfortable asking Juror N. to serve, particularly if something happened while he was driving. The court declared, "we keep going."
The prosecutor raised the issue of excusing two other jurors by stipulation. The parties had agreed to excuse Jurors B. and M.; they had been told and had left the courtroom.
In open court, Juror N. was dismissed and jury selection continued. When the court asked if the panel was passed for cause, an unreported sidebar conference was held. The court indicated that except for the objection noted at sidebar, they would move to the challenge phase of jury selection. The court asked counsel to remind the court to put the discussion on the record. The prosecutor then excused Juror J., a juror who was part of the original panel. The defense requested another sidebar, which was held off record. Juror J. was then excused. The defense exercised a challenge and then both sides passed. The court noted, "So we are back to choosing alternates." The jury panel was sworn and then the alternates were sworn.
The next day, during trial, defense counsel put on the record his objection to the People removing Juror J. after Juror N. expressed his concern about serving. Counsel believed the jury had been impaneled and removing Juror N. did not give the People the opportunity to start excusing other jurors.
The prosecutor stated for the record that the jury had not yet been sworn. "We were still in the jury selection process, and I feel that I properly used *503 one of my peremptory challenges." The court agreed that after Juror N. raised his concerns about serving, "the jury selection process was again thrown open for both counsel to exercise challenges to anyone in the box."
Analysis
(4) In this life-sentence case defendant was entitled to 20 peremptory challenges. (Code Civ. Proc., §§ 225, subd. (b)(2), 231.) A challenge to an individual juror must be made before the jury is sworn. (Code Civ. Proc., § 226, subd. (a).) The phrase "`the jury is sworn'" refers to the trial jury, not the alternates. (People v. Cottle (2006) 39 Cal.4th 246, 255 [46 Cal.Rptr.3d 86, 138 P.3d 230].) If a party was allowed to use peremptory challenges to members of the jury after the jury was sworn, but before the alternates were selected, gamesmanship would be encouraged. (Id. at p. 257.) "For example, if a favorable juror was selected as an alternate, a party would then try to challenge a member of the jury so that the alternate could replace the juror. Nothing in the legislative history suggests an intention to create such a scheme." (Ibid.)
Peremptory challenges are taken or passed by each side alternatively, beginning with the People. (Code Civ. Proc., § 231, subd. (d).) "When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order." (Ibid.; see also id., subd. (e).)
After the jury is impaneled and sworn, the court may call for additional jurors to serve as alternate jurors. (Code Civ. Proc., § 234; Pen. Code, § 1089.) An alternate juror may become a regular juror if, before the jury returns its verdict, a juror becomes sick or is otherwise unable to perform his duty. (Code Civ. Proc., § 233; Pen. Code, § 1089.)
In this case, the jury was not sworn immediately after both sides passed consecutively. That situation was presented in People v. Niles (1991) 233 Cal.App.3d 315 [284 Cal.Rptr. 423] (Niles). In Niles, the defendant's jury was not sworn until after his codefendant's jury was selected. During a hearing to finalize jury selection, the trial court informed counsel that the husband of one juror, a sheriff's sergeant, had reported that the defendant was talking to him and being "very nice," which concerned the sergeant. After questioning the juror, both counsel agreed she should stay. The next day, however, the defendant requested that the juror be excused and allowed to use one of his peremptory challenges for that purpose. The trial court denied the request. (Id. at pp. 318-319.)
On appeal the court rejected the defendant's contention that he had an absolute right to use his peremptory challenges until the jury was sworn. *504 (Niles, supra, 233 Cal.App.3d at p. 320.) Instead, once both sides pass consecutively on peremptory challenges, even though the jury is not actually sworn, the right to exercise any remaining challenges is subject to the discretion of the trial court, based upon a showing of good cause to reopen jury selection. (Ibid. & fn. 4.) Although the jury was not sworn, the defendant did not have an unqualified right to exercise a peremptory challenge. Rather, after both sides consecutively pass on their peremptory challenges, "the exercise of the remaining peremptory challenge was no longer a matter of right but rather a matter within the discretion of the trial court, contingent upon defendant's showing of good cause. The trial court's exercise of that discretion will not be set aside absent a clear showing of abuse. [Citation.]" (Id. at pp. 320-321.)
Here, after both sides consecutively passed on the exercise of peremptory challenges, the trial court reopened jury selection and thereafter permitted the prosecutor to use a peremptory challenge. Under Niles, the issue is whether the trial court abused its discretion in finding good cause to reopen jury selection. We find it did not.
Both parties agree that "good cause," liberally construed, requires taking account of "`"real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith...."' [Citation.]" (Gibson v. Unemployment Ins. Appeals Bd. (1973) 9 Cal.3d 494, 499, fn. 8 [108 Cal.Rptr. 1, 509 P.2d 945].) Here, the trial court properly found good cause. There was a real, substantive and objective need to reopen jury selection. Juror N. had concluded it would be difficult for him to serve on the jury because it would require him to stay up all day and night for several days in a row. With the consent of defense counsel, the court dismissed him. Therefore, there was a need to continue with jury selection. We recognize that the court could have filled Juror N.'s slot with an alternate juror pursuant to section 233 of the Code of Civil Procedure. When a court has a choice of possible actions available, it does not abuse its discretion in deciding to chose one rather than the other. We find no abuse of discretion in reopening jury selection, which then permitted both sides to exercise peremptory challenges to the panel.
V. The Court Properly Imposed a $10,000 Restitution Fine
Defendant contends the trial court abused its discretion in imposing a $10,000 restitution fine pursuant to Penal Code section 1202.4 because he will not have the ability to pay it. In his sentencing brief, defendant requested the minimum fine of $200, pointing out that at current prison wages, the *505 earliest he could pay the fine would be 27 years, while at the minimum rate it would take 126 years. Further, he was unlikely to get a prison job for the first few years.
(5) "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b).) Where a defendant is convicted of a felony, the fine shall be set at between $200 and $10,000, commensurate with the seriousness of the offense. (Pen. Code, § 1202.4, subd. (b)(1).) Here, defendant was convicted of a special circumstance murder, so the seriousness of the crime supported the maximum fine.
Defendant's inability to pay the fine is not a compelling and extraordinary reason not to impose the fine, but it shall be considered in setting the fine above the minimum of $200. (Pen. Code, § 1202.4, subds. (c), (d).) Section 1202.4 presumes a defendant has the ability to pay the fine. (People v. Romero (1996) 43 Cal.App.4th 440, 448-449 [51 Cal.Rptr.2d 26].) "A defendant shall bear the burden of demonstrating his or her inability to pay." (Pen. Code, § 1202.4, subd. (d).)
Here, defendant put forth figures to show, at current prison wages, it would be very difficult for him to pay the fine; it would take a very long time and the fine might never be paid. Defendant did not, however, show an absolute inability to ever pay the fine. Moreover, in setting the amount, the trial court properly considered not only defendant's inability to pay, but also "the seriousness and gravity of the offense and the circumstances of its commission." (Pen. Code, § 1202.4, subd. (d).) Defendant's crime was the most serious and grave. The trial court did not abuse its discretion in imposing the maximum fine. (See People v. Draut (1998) 73 Cal.App.4th 577, 581 [86 Cal.Rptr.2d 469] [trial court abused discretion in reducing restitution based on defendant's inability to pay].)
VI. The Parole Revocation Fine Must Be Stricken
(6) The trial court also imposed a $10,000 parole revocation fine, pursuant to Penal Code section 1202.45. Defendant contends this fine must be stricken because defendant was sentenced to life without the possibility of parole. The Attorney General concedes the error; a parole revocation fine is inapplicable where there is no possibility of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819 [44 Cal.Rptr.3d 788]; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [83 Cal.Rptr.2d 157].) We accept the concession.
*506 DISPOSITION
The trial court is ordered to strike the $10,000 parole revocation restitution fine imposed under section 1202.45. In all other respects, the judgment is affirmed.
Hull, J., and Butz, J., concurred.
NOTES
[1] The jury was given a limiting instruction before this testimony. This evidence was admitted only to show defendant's intent.
[2] Defendant argues the record was not settled as to what instructions were given to the jury because the trial judge did not refer to any notes, the defense attorney had no recollection, and the court clerk relied on assumptions as to what she did. Given the absence of any objection to the instructions as read, the most reasonable inference is that the instructions, including CALCRIM No. 521, were read without error. Defendant suggests it is possible neither version of CALCRIM No. 521 in the clerk's transcript was read or given to the jury. We find it incredible that the instruction on murder could have been omitted without an objection from either the prosecutor or defense counsel. The lack of recollection about the instructions indicates nothing remarkable occurred when the court read them.
[3] Any possible confusion as to this was cleared up by the prosecutor's argument: "Bottom line is it's the same basic elements as felony murder. So if you conclude, yeah, he was engaged in a robbery when he did this act, these are the three elements, basically the same, that he did an intentional robbery, that he did an act that caused death, and the reason she died is because of the robbery. There's a connection between the robbery and the death."
[4] These facts are clearly distinguishable from those in People v. Nguyen, supra, 24 Cal.4th 756, where the proposed robbery victim had no relationship to the owner of the property. There a number of employees gathered in the lunchroom to celebrate a birthday and the husband of one employee joined them. Robbers with guns entered and took property from the business. The husband, from whom no property was taken, was found not to be a robbery victim. (Id. at p. 764.)
[5] The failure to ask the trial court to clarify or amplify an instruction bars raising the issue on appeal. (People v. Cole (2004) 33 Cal.4th 1158, 1211 [17 Cal.Rptr.3d 532, 95 P.3d 811].)
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167 Cal.App.4th 733 (2008)
ROBERT SCHWARTZ, Plaintiff and Appellant,
v.
NICOLETTE SCHWARTZ, as Trustee, etc., Defendant and Respondent.
No. F053942.
Court of Appeals of California, Fifth District.
October 16, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*735 Darling & Wilson and Joshua G. Wilson for Plaintiff and Appellant.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett, Joseph D. Hughes and Joshua D. Meier for Defendant and Respondent.
*736 OPINION
VARTABEDIAN, Acting P. J.
Appellant Robert Schwartz appeals from the September 11, 2007, order denying his petition for an order directing distribution of trust property and granting the petition of respondent Nicolette Schwartz, as Trustee of the Adolf W. Schwartz and Chris Edda Schwartz Living Trust of 1987, to invoke the no contest clause of the trust. The published portion of this opinion discusses the continuing ramifications of a petition such as appellant's, even after its claimed withdrawal. We affirm.
FACTS AND PROCEEDINGS
On July 21, 1987, Adolf W. and Chris Edda Schwartz (jointly, the settlors) executed the Adolf W. Schwartz and Chris Edda Schwartz Living Trust of 1987. In the succeeding 12 years, the settlors amended their trust agreement four times. The settlors executed the fourth amendment, a restatement of the entire trust agreement, on October 24, 1995. The settlors subsequently executed two more amendments, one of them nominating their daughter, respondent, as successor trustee upon their deaths. Appellant is the son of the settlors.
Settlor Chris Schwartz died in 1998 and the trust estate was divided into three separate trustsa survivor's trust, a marital trust, and a residual trust. Surviving settlor Adolf Schwartz (hereafter Schwartz) allocated his one-half interest in the community property and all of his separate property to the survivor's trust. The trust agreement gave Schwartz a power of appointment over the survivor's trust and stated that power could be exercised by will, codicil, or other written instrument. Under the terms of the agreement, any assets of the survivor's trust that were not appointed would pass to the residual trust upon Schwartz's death. The marital trust was funded with a specific amount calculated for federal estate tax purposes and, upon Schwartz's death, any assets remaining in the marital trust were to be allocated to the residual trust. The balance of the trust estate was allocated to the residual trust. Upon the death of the surviving settlor, the trustee was to divide the residual trust into five separate shares and distribute one equal share to each of the following: appellant, respondent, Lynda Dickey, and Kevin Cooper. The trust directed the successor trustee to distribute the fifth and final share to specified charities.
On February 1, 2000, Schwartz executed a new will, exercised his power of appointment, and directed that upon his death his residence and $200,000 in cash be distributed from the survivor's trust to his new spouse, Lydia Schwartz. He also made a $10,000 gift to one Jana Stukanov, directed the sale of his stamp collection, and further directed that the balance of the *737 survivor's trust be divided equally between appellant and respondent. Schwartz executed three codicils to his February 2000 will. In the first codicil, executed September 14, 2000, he corrected directions regarding the devise of the residence to Lydia Schwartz and generally reiterated the distributions set forth in his will. In the second codicil, executed January 31, 2001, Schwartz amended the distributive provisions in the event appellant or respondent failed to survive him. In the third codicil, a holographic document executed December 8, 2005, Schwartz revoked prior amendments to his will and restated the devise of the residence to Lydia. In addition, Schwartz (1) increased Lydia's cash distribution to $250,000; (2) provided distributions to his brother-in-law, John Stukanov; (3) recited that certain inter vivos cash gifts to appellant were to be considered part of appellant's inheritance; and (4) made specific distributions to respondent. Schwartz maintained the equal division of remaining assets to appellant and respondent.
Schwartz died on April 26, 2006, and respondent became the successor trustee of the trust. On August 17, 2006, appellant filed an application for determination of whether a petition for order directing distribution of property from the inter vivos trust would be a "contest" under Probate Code section 21320 (hereafter the application). Appellant attached to his application a copy of the proposed petition for order directing distribution of property (hereafter appellant's petition). In that petition, appellant sought a court order directing respondent to divide the property of the survivor's trust equally between appellant and respondent "without giving any force or effect to the Holographic Will."
On September 1, 2006, without waiting for a ruling on his application, appellant filed his actual petition.
On October 5, 2006, the court held a hearing on appellant's application and petition and continued the matter to December 7, 2006, to allow respondent to review the pleadings and to file objections. On November 6, 2006, respondent filed a response to appellant's petition and an objection to the application. The response asserted that appellant's petition constituted a contest under the terms of the trust agreement. The response, as well as the objection, noted that the application was moot because appellant had filed his petition without waiting for a court order on the application.
At the December 7, 2006, hearing, the court continued the matter to January 18, 2007, because appellant had not served notice on certain beneficiaries. On December 18, 2006, appellant filed a notice of withdrawal of his petition, stating:
"Petitioner ROBERT SCHWARTZ hereby withdraws his Petition for Order Directing the Successor Trustee to Distribute Trust Property as Provided *738 Under the Terms and Conditions of the Survivors Trust (the `Petition') presently scheduled for hearing on January 18, 2007 . . . .
"The Petition was filed subsequent to the filing of an Application which seeks a judicial determination as to the effect, if any, pursuing legal action on the Petition will have on Petitioner under the no contest clause of the Adolph [sic] W. Schwartz and Chris Edda Schwartz Living Trust of 1987, as amended and restated (the `Trust'). The Petition was filed with the understanding that the Court's initial determination on the Application could affect Petitioner's decision as to whether or not to move forward on the Petition. To avoid any confusion or argument, Petitioner is simply withdrawing the Petition without prejudice to subsequent filing."
On January 18, 2007, the court conducted a hearing and counsel for each of respondent and appellant argued their positions as to the question of mootness of the application. Respondent's counsel stated: "Now, I understand that the applicant is going to argue and has argued that they . . . in response to our opposition, they simply withdrew the petition. [O]ur position on that is that's completely ineffective, because that completely voids the policy behind the no contest clause." Appellant's counsel maintained: "[U]ntil there's a determination or you proceed moving forward with the underlying petition, which now has been withdrawn . . . there is no action pending before the court." Respondent's counsel responded: "That makes no sense, your Honor. Because, again, at what point can a contestant withdraw a petition and say, Well, I was just kidding? I'm sorry I exposed the trust or will probate estate to litigation expenses. But I don't like how the outcome is looking so I'm gonna withdraw the petition." The court did not rule on the purported withdrawal but, instead, instructed appellant's counsel to give notice to all beneficiaries and to file all related estate planning documents with the court. The court then continued the matter to March 8, 2007.
On March 8, 2007, appellant's counsel maintained: "We withdrew the petition, and, of course, are taking the position that it does not affect the application." Respondent's counsel argued:
"Because when you file the application and you attach the petition, procedurally that's what you do. And [the] Probate Code allows you to do that. The Probate Code defines a contest as filing a petition, seeking relief in the proceeding. The trust itself says in the no contest clause that if somebody seeks an adjudication . . . that is the contest.
"So when the petitioner filed on September 1st the underlying petition, that's it. The bell was rung, so to speak. And then it actually came up for hearing the beginning of October. We appeared at that time not only on the *739 application but also on the underlying petition. The court ordered us to file objections to both, which we did. So we filed an objection to the application. We also had to file an objection to the underlying petition. Those were on file the beginning of November. And then it wasn't until December when it was actually withdrawn."
The court asked appellant's counsel whether the filing of appellant's petition was due to inadvertence or anything akin to the scenarios permitting relief under Code of Civil Procedure section 473. Appellant's counsel responded in the negative and frankly admitted, "We were well aware of the fact that the petition was being filed." With respect to the withdrawal of appellant's petition, appellant's counsel explained, "[O]ur withdrawal was as a result of their pleadings saying, Well, look. Youthe application is now moot because you have filed the underlying petition. So we simply withdrew that." Upon further questioning, appellant's counsel said, "My actual thinking on doing that [filing the actual petition before the court ruled upon the application] was we have the application. That's gonna be set for hearing. If we then file the petition, it will be set for a subsequent date. I had no idea they'd be set concurrently on the same date . . . ."
The court then asked appellant's counsel why he filed appellant's actual petition when he had already attached the proposed petition to the application. Appellant's counsel explained: "It's my thought when it was doneand it was done with knowledgewas that all I'm doing is really advancing a hearing date on the underlying petition. Because my thought was, in all honesty, it clearly is not an action that would trigger the no contest provision. So assuming that at the original hearing the court would agree with my position, I would then have a subsequent hearing date already set on the underlying petition. So that wasalthough certainly flawed in retrospect, that was my logic for pursuing those things the way I did."
After hearing further argument from respondent's counsel, the court denied appellant's application, stating in pertinent part:
"It appears to me that once the petition was filed, it takes it out of the safe harbor provision that's provided by the Probate Code. I mean, I don't know any other wayand this is the court's thinking. And I'm making the record on this. So if you want someone else to review it, which I presume you would, the court will know what went into the decision on this. Because I think the safe harbor provision under the statute is put there for that specific reason, so that it can keep you or the petitioner from taking the next step and putting into issue the very thing that they wanted to get a determination on before they did that.
*740 "So I think that application was superseded by the petition. And to go back to the analogy that I made at the outset, the bell has been rung and it can't be unrung. . . ." The court concluded the filing of appellant's petition brought section 14.10 of the trust agreement ("Contest of Trust or Will") into play and the court sustained respondent's objection on that basis. On April 28, 2007, the court filed a formal order denying appellant's application.[1]
On May 24, 2007, the court conducted a contested hearing on respondent's petition to invoke the no contest clause. Respondent's counsel maintained that appellant's petition prayed for an equal division of survivor's trust assets between respondent and appellant, thereby nullifying an integrated estate plan and excluding other stated beneficiaries of the trust estate. Respondent's counsel further maintained appellant's petition constituted a contest under the terms of the trust agreement as well as a contest under the provisions of the Probate Code.
In response, appellant's counsel asserted the third codicil did not effectively exercise a power of appointment over the assets of the survivor's trust. He explained, "[T]he sole issue that Robert Schwartz is seeking to have the court address is whether the language in the 2005 holographic document is an effective exercise of the power of appointment provisions. That's all we've ever asked for." He further explained that an interpretation or determination of specific language is not a contest under Probate Code section 21305, subdivisions (a) and (c). The court later asked whether appellant was seeking a determination as to the validity of the third codicil. Appellant's counsel responded: "No. We're just askingthe petition is just focusing on whethernot the holographic will in its entirety, just the language that attempted to exercise the power of appointment provisions given to Dr. Schwartz in the survivor's trust." At the conclusion of the hearing, the court took the matter under submission.
On June 26, 2007, the court filed a ruling, stating in pertinent part:
"In the Petition, Petitioner, a Trust beneficiary, asks the Court not to give `force or effect' to the third codicil because, he asserts, the holographic third codicil is not authorized by the Trust. Thus, he asks the Court to disregard it and instead to impose the terms of the Survivor's Trust as if the third codicil were void ab initio. Paradoxically, Petitioner further argues, however, that the prayed for relief in his Petition should not be taken at face value because he is not challenging the validity of the third codicil. In light of Trustee's averments that such relief clearly contests the Trust, however, it cannot be *741 disregarded. This is so because the averments in the Petition clearly support such prayed for relief. Moreover, as Trustee properly asserts, had there not been any objection to this Petition, Petitioner would have gotten exactly what he prayed for, which is to nullify or void the third codicil. (See [Probate Code] Section 21300.)
"Consequently, the challenge to the subject codicil is a contest of its validity. In light of the expressed provisions of Trust Section 14.10, there is but one conclusion that can be reached. The Petition does violate the `no contest' clause which is clearly prohibited by the settlors. . . . [Probate Code] Section 21305 is therefore inapplicable."
On September 11, 2007, the court filed a formal order invoking the no contest clause. Pursuant to that order, the court (1) sustained respondent's objection to appellant's petition; (2) denied appellant's petition; (3) granted respondent's petition to invoke the no contest clause of the trust; and (4) directed respondent to determine the interest of appellant as a beneficiary of the trust as if he had predeceased the exercise of the trust instrument without surviving issue.
On September 18, 2007, appellant filed a notice of appeal from the September 11 order.[2]
DISCUSSION
I. DID THE TRIAL COURT HAVE JURISDICTION TO DENY APPELLANT'S PETITION FOLLOWING HIS ALLEGED WITHDRAWAL OF THE PLEADING?
Appellant contends the trial court lacked jurisdiction to deny his petition because he had voluntarily withdrawn it at an earlier point in time. We conclude contrarily.
*742 Respondent filed a response to appellant's petition, and the matter was continued for hearing on two occasions prior to appellant's filing of his written notice of withdrawal of his petition on December 18, 2006. On January 18, 2007, the court filed a minute order stating: "PETITION WITHDRAWN."
On April 10, 2007, respondent filed a petition to invoke the no contest clause. On May 17, 2007, appellant filed written opposition to respondent's petition to invoke the no contest clause. The matters proceeded to a contested hearing on May 24, 2007. On June 26, 2007, the court filed a written ruling deeming the petition to invoke the no contest clause as an objection to appellant's petition. The court further found that appellant's petition invoked the no contest clause of the trust agreement. The court denied appellant's petition and sustained respondent's petition to invoke the no contest clause as an objection to appellant's petition. These rulings were incorporated into the formal order of September 11, 2007, as previously set forth, from which this appeal is taken.
On appeal, appellant claims his notice of withdrawal of petition was effective and that all proceedings subsequent to the withdrawalincluding the trial court's denial of his petitionare void.
(1) Probate Code section 1000 states in relevant part: "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions . . . under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. . . ." Probate Code section 1000 does not create an independent right to a full trial whenever there is a contested issue of fact. The statute merely provides that the provisions of the Code of Civil Procedure apply when the Probate Code is silent as to a particular rule of procedure. (See Cal. Law Revision Com. com., 52 West's Ann. Prob. Code (2002 ed.) foll. § 1000, p. 459; Merrill v. Finberg (1992) 4 Cal.App.4th 1443, 1447 [6 Cal.Rptr.2d 434] [statute creates rule of default adopting civil practice rules].)
(2) Generally speaking, a pleader cannot remove from a case, after an adverse ruling, the issue that he or she tendered. (Schnitman v. Husted (1929) 99 Cal.App. 666, 670 [279 P. 194].) Code of Civil Procedure section 581, subdivision (i) provides that no dismissal of an action may be made where affirmative relief has been sought by the cross-complaint of the defendant. The controlling factor is whether the other party has requested affirmative relief, regardless of the form of the pleading. Affirmative relief does not include mere defensive matter. Rather, it refers to new matter that in effect amounts to a counterattack. The relief sought, if granted, operates not as a *743 defense but affirmatively and positively to defeat the plaintiff's cause of action. The affirmative relief request must necessarily be sought before the voluntary dismissal is tendered. (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 869-870 [12 Cal.Rptr.3d 142].)
Here, respondent's petition to invoke the no contest clause was filed about four months after appellant filed the notice of withdrawal of his petition. Thus, claims appellant, the court lacked jurisdiction over his petition. However, respondent's petition to invoke the no contest clause itself was preceded by respondent's response to appellant's petition; that response was filed more than a month prior to appellant's notice of withdrawal of his petition. In that response, respondent affirmatively alleged that appellant's petition constituted a contest.
(3) A "contest" means any action identified in a "`no contest clause' as a violation of the clause. The term includes both direct and indirect contests." (Prob. Code, § 21300, subd. (a).) A "direct contest" means a pleading in a proceeding in any court alleging the invalidity of an instrument or one or more of its terms based on one or more statutory factors, including revocation, lack of capacity, fraud, and misrepresentation. (Prob. Code, § 21300, subd. (b).) An "indirect contest" means a pleading in a proceeding in any court that indirectly challenges the validity of an instrument or one or more of its terms on any other ground not contained in Probate Code section 21300, subdivision (b) and that does not contain any of those grounds. (Prob. Code, § 21300, subd. (c).) A "no contest clause" means a provision in an otherwise valid instrument that, if enforced, would penalize a beneficiary if the beneficiary files a contest with the court. (Prob. Code, § 21300, subd. (d).)
The no contest clause in section 14.10 of the trust agreement stated: "Contest of Trust or Will. In the event any beneficiary under this trust shall, singly or in conjunction with any other person or persons, contest in any court the validity of this trust or the validity of a deceased Settlor's last Will or shall seek to obtain an adjudication in any proceeding in any court that this trust or any of its provisions or that such Will or any of its provisions is void, or seek otherwise to void, nullify, or set aside this trust or any of its provisions, then the right of that person to take any interest given to him by this trust shall be determined as it would have been determined had the person predeceased the execution of this instrument without surviving issue. The Trustee is hereby authorized to defend, at the expense of the Trust Estate, any contest or other attack of any nature on this trust or any of its provisions."
(4) Whether there has been a "contest" within the meaning of a particular no contest clause depends upon the circumstances of the particular case and *744 the language used. No contest clauses are valid and favored by the public policies of discouraging litigation and giving effect to the testator's intent. Nevertheless, they are also disfavored by the policy against forfeitures, are strictly construed, and may not extend beyond what plainly was the testator's intent. The testator's intentions control, and a court must not rewrite an estate planning document in such a way as to immunize legal proceedings plainly intended to frustrate the testator's unequivocally expressed intent from the reach of the no contest clause. (Estate of Kaila (2001) 94 Cal.App.4th 1122, 1128-1129 [114 Cal.Rptr.2d 865].) Appellant's petition prayed for an order directing respondent to divide the property of the survivor's trust equally between himself and respondent "as required under the terms of the Survivor's Trust without giving any force or effect to the Holographic Will [the third codicil]."
In Estate of Hite (1909) 155 Cal. 436 [101 P. 443], decedent passed away leaving a will with two codicils. Two legatees, one under the will and the other under one of the codicils, filed a contest of the first codicil and written opposition to probate of the second codicil. After the legatees successfully interposed a motion to strike certain portions of the executor's answers, the chief beneficiary under the second codicil agreed to allocate a portion of her legacy to the first two legatees. In consideration of that allocation, the first two legatees agreed to withdraw their opposition and one of them eventually applied for a partial distribution of the estate. A residuary legatee and devisee under the will unsuccessfully moved to block the petition for partial distribution and then appealed. The Supreme Court reversed the decree of partial distribution, noting in pertinent part: "Etta Gross [one of the two contesting legatees] assails these codicils. She files written grounds of opposition which the law recognizes as a `contest.' She subsequently invokes judicial action of the court by a motion to strike out portions of the proponent's answer to her contest. Her contest is set for hearing and the hearing from time to time continued, with the final result, which must always have been in contemplation, of forcing a compromise from the sister, who naturally stood in terror of losing her two hundred thousand dollars legacy. Can it be said that one who has thus used the machinery of the law, by methods competent and designed to work an overthrow of the testator's expressed wishes, and who has accomplished her result to the extent of taking from another legatee, by compromise, a portion of the testator's money which he had bequeathed to her, who for her personal end and gain has instituted the contest, and having accomplished her end has abandoned it,can it, we repeat, be said that she, within the meaning of the testator's inhibition, has not contested? Clearly it cannot. The decision of each of such cases, as it arises, must be controlled by its facts. It does not follow herefrom that the mere filing of a paper contest, which has been abandoned without action and has not been employed to thwart the testator's expressed wishes, need be judicially declared a contest. *745 But wherever an opponent uses the appropriate machinery of the law to the thwarting of the testator's expressed wishes, whether he succeed or fail, his action is a contest." (Estate of Hite, supra, 155 Cal. at pp. 443-444.)
In the instant case, appellant knowingly filed a petition that took him outside the safe harbor provisions of Probate Code section 21320. The clear purpose of appellant's petition was to defeat Schwartz's testamentary and donative intent by nullifying his third codicil and giving equal shares of the survivor's trust to appellant and respondent, something that was neither contemplated nor specified in the settlors' estate plan. Appellant used the mechanisms of the court in attempting to achieve this goal. By filing his petition, appellant compelled respondent to respond to the petition, attempted to negotiate with respondent while his petition was pending, and caused the court to conduct the hearings of October 5 and December 7, 2006. On December 18, 2006, more than a month after respondent filed a response to appellant's petition and an objection to the application, appellant filed the notice of withdrawal of his petition.
As respondent correctly points out, "Robert cannot now escape the nocontest clause after he has dragged the trust, will, and codicils through the court and attempted to gain an advantage by thwarting Dr. Schwartz's intent. No-contest clauses are put in testamentary documents specifically to prevent behavior like Robert's. Robert has wasted trust resources and attempted to defeat Dr. Schwartz's intent. Robert cannot now escape the consequences by merely withdrawing the Contestthis would defeat the purpose of the no-contest clauses."
(5) Appellant's petition claimed the third codicil failed to exercise a power of appointment consistent with the requirements of the survivor's trust and prayed for an equal division of the survivor's trust, with respondent and himself as the sole beneficiaries. Appellant's petition was an indirect contest of that codicil. Respondent affirmatively alleged relief based on this indirect contest in her timely response to the petition, making it inappropriate to dismiss appellant's petition. Accordingly, the trial court properly exercised jurisdiction over appellant's petition.
II., III.[*]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*746 DISPOSITION
The order of September 11, 2007, is affirmed. Costs on appeal are awarded to respondent.
Cornell, J., and Kane, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II. and III. of the Discussion.
[1] Appellant separately appeals this April 28, 2007, order in Schwartz v. Schwartz (Oct. 16, 2008, F053325) (nonpub. opn.). That matter was consolidated for oral argument, but is decided in a separate opinion.
[2] A trustee of a trust may petition the court under Probate Code sections 17200 through 17457 concerning the internal affairs of the trust. Proceedings concerning the internal affairs of a trust include proceedings to determine questions of construction of a trust instrument. (Prob. Code, § 17200, subd. (b)(1).) When a no contest clause appears in a trust instrument, the appropriate proceeding is one for court intervention in the internal affairs of the trust, e.g., to give instructions to the trustee (Prob. Code, § 17200, subd. (b)(6)) or to ascertain the beneficiaries of the trust and determine to whom the property shall be delivered upon termination of the trust (Prob. Code, § 17200, subd. (b)(4)). (Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1430 [66 Cal.Rptr.2d 527].) With respect to a trust, the grant or denial of any final order under chapter 3 (commencing with § 17200) of part 5 of division 9 of the Probate Code is appealable. Moreover, the grant or denial of an order determining whether an action constitutes a contest is appealable. (Prob. Code, § 1304, subds. (a), (d).)
[*] See footnote on page 733, ante.
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777 F.Supp. 490 (1991)
Samuel M. YONTER
v.
AETNA FINANCE COMPANY and Equifax Services, Inc.
Civ. A. No. 91-0973.
United States District Court, E.D. Louisiana.
October 18, 1991.
Samuel M. Yonter, in pro. per.
Liskow & Lewis by Julie E. Schwartz and Daniel E. Lagrone, New Orleans, La., for defendant Aetna Finance Co.
Phelps, Dunbar by Rutledge C. Lement, Jr., Amelia Williams Koch and A. Lee Levert, for defendant Credit Bureau, Inc. of Georgia.
ORDER AND REASONS
LIVAUDAIS, District Judge.
The Court was presented with dual motions for summary judgment, in the above captioned case, by both defendants, Aetna Finance Company ("Aetna") and Credit Bureau, Inc. of Georgia ("CBI"). For the reasons stated below, this court grants summary judgment in favor of both defendants.
*491 FACTS
ITT Consumer Finance Corporation ("ITT") was listed on plaintiff Samuel M. Yonter's credit report as being a party that requested credit information on him. Aetna is a subsidiary of ITT. It was Aetna who used this information to send pre-approved guaranteed loan solicitations to certain credit worthy individuals, including the plaintiff.
Aetna obtained the list information by entering into an agreement with C.B.I., a credit reporting bureau, in which C.B.I. was to create a list of "criteria satisfying" borrowers to whom Aetna would offer their promotion. This is the common industry practice known as "prescreening." Aetna subsequently had this list sent to a direct mail company to process the mailing to the persons identified on the prescreened list.
The company offering the service or product, in this case Aetna, does not receive any credit details of the persons on the list. The list contains only the names and addresses that allow the potential credit grantor to make their business offer. In many cases, including the one at present, the credit grantor (customer of the bureau) receives no information at all because the prescreened list is sent directly to a mailing service.
Plaintiff alleges that this process caused him to suffer, among other things, mental anguish and invasion of privacy as a result of the prescreening performed by one defendant, C.B.I., a credit reporting agency, for the other defendant, Aetna, a credit grantor.
DISCUSSION
The case at hand involves no issue of material fact. At controversy is an interpretation of law. That law is the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. sec. 1681-1681t, specifically section 1681b, which provides that:
"[A] consumer reporting agency may furnish a consumer report under the following circumstances and no other ...
(3) To a person which it [the credit reporting agency] has reason to believe
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review collection of an account of, the consumer, or
...
(E) otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer."
15 U.S.C. 1681b(3)(A), (E).
The Federal Trade Commission ("FTC") is the federal agency empowered by Congress to administer and enforce this statute. 15 U.S.C. sec. 1681s. The Fair Credit Reporting Act provides the FTC with "procedural, investigative and enforcement powers, including the power to issue procedural rules to enforce compliance" with the act. 15 U.S.C. sec. 1681s. As the act's administrative agency, the FTC has issued various commentaries and interpretive readings of the act. The FTC, in at least one writing, has admitted that "the commentary does not have the force of regulations or statutory provisions, and its contents may be revised and updated as the commission considers necessary or appropriate." 16 C.F.R. sec. 600.2 appendix.
While the FTC commentaries and opinions are not law, the Supreme Court has stated that when Congress has not addressed the precise question at issue:
"The court does not simply impose its own construction on the statute as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."
Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).
The Chevron court further reasoned that a court need not conclude that an agency's construction of a statute that it administers was the only permissible one, or that the court would have reached a different conclusion. The reviewing court need only *492 find that the agency's construction is one permissible reading of the statute. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11; see also FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981) (appropriate inquiry is whether the agency's construction is a "sufficiently reasonable" interpretation of Congressional intent); National Grain & Feed Association v. Occupational Safety & Health Administration, 866 F.2d 717, 733 (5th Cir.1989) ("only where Congressional intent is pellucid are we entitled to reject reasonable administrative construction of a statute"); Clark Oil Products Co. v. Hodel, 667 F.Supp. 281, 290 (E.D.La.1987) (question for court is whether agency's answer is based on a permissible construction of the statute).
The Federal Trade Commission has interpreted the Fair Credit Reporting Act to permit prescreening of individual consumers listed with credit reporting agencies. The FTC said in its interpretation, "prescreening is permissible under the FCRA if the client agrees in advance that each consumer whose name is on the list after prescreening will receive an offer of credit." 16 C.F.R. sec. 600. The commission went on to reason that "a permissible purpose for the prescreening service exists under this section, because of the client's [Aetna] present intent to grant credit to all consumers on the final list, with the result that the information is used `in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to the consumer.'" Id. It is an undisputed fact that Aetna contracted to have their mailing service send the same offer to each person on the prescreened list provided by defendant C.B.I.
The 1973 view of the Federal Trade Commission, recited above, was recently reaffirmed in a FTC Official Staff Commentary. "The presence of an intent by the user of the prescreening service to grant credit provides a sufficient nexus between creditor and consumer to meet the statutory requirement that the creditor intends to use the information `in connection with a credit transaction ... involving an extension of credit to the consumer.'" FTC Official Staff Commentary, Fed.Reg. 18807 (1990).
The Federal Trade Commission's ears have not been completely deaf to claims such as those asserted by the plaintiff. However, the FTC has explained:
The commission recognizes that the legislative history of the FCRA reveals a concern for the consumers' privacy and the accuracy of information stored at credit bureaus, and demonstrates a sensitivity to the balance between the free flow of credit information for legitimate business purposes and the right of the consumer to keep his affairs private. However, the practice of prescreening results in no significant harm to consumers and the practice is not inconsistent with the basic purposes of the act.
38 Fed.Reg. 4946 (1973).
As noted above, the FTC interpretation should be entitled to deference because the interpretation was issued after public hearings called to reconcile various policy considerations. This special deference is also warranted because the agency position is long held and has been consistently enforced. In addition, Congress, though amending the FCRA many times, has not passed legislation to limit or legislatively overrule the FTC interpretation which endorses the practice of prescreening. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1966), the Supreme Court noted that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction." "Such deference is particularly appropriate where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives." United States v. Rutherford, 442 U.S. 544, 554, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1979).
*493 Plaintiff has cited two cases in support of his position. Boothe v. TRW Credit Data, 557 F.Supp. 66, 70 (S.D.N.Y.1982); Greenway v. Information Dynamics Ltd., 399 F.Supp. 1092 (D.Ariz.1974), aff'd, 524 F.2d 1145 (9th Cir.1975), cert. denied 424 U.S. 936, 96 S.Ct. 1153, 47 L.Ed.2d 344 (1976). The cases lend some good language to plaintiff's case when read out of their proper context. Unfortunately, the cases are factually distinct in many ways and, regardless, are from nonbinding district courts. They do not persuade this Court that summary judgment is not appropriate in this action.
The plaintiff's view in this case is simply contrary to longstanding agency interpretation, Congressional acquiescence, widespread industry practice and, as the defendant respectfully asserts in his brief, "common sense."
Accordingly,
IT IS ORDERED that the motion of the defendants, Aetna Finance Co. and Credit Bureau, Inc. of Georgia, for summary judgment be and are hereby GRANTED.
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777 F.Supp. 839 (1991)
Dolly BARCIAK, Plaintiff,
v.
UNITED OF OMAHA LIFE INSURANCE COMPANY, Defendant.
No. 90-C-1559.
United States District Court, D. Colorado.
November 6, 1991.
*840 Karen Zulauf, Boulder, Colo., for plaintiff.
Arthur Downey, Denver, Colo., for defendant.
MEMORANDUM OPINION AND ORDER
CARRIGAN, District Judge.
Plaintiff Dolly Barciak, a Colorado resident, commenced this action against United of Omaha Life Insurance Company (United), a Nebraska corporation, in the state district court for Boulder County, Colorado. Plaintiff asserts claims for breach of contract (first claim), breach of covenant of good faith and fair dealing (second claim) and emotional distress (third claim). Plaintiff also seeks punitive damages and attorneys' fees. Pursuant to 28 U.S.C. § 1441, the defendant removed the action to this court on September 4, 1990.
Plaintiff has filed two motions for summary judgment. In her first motion, she seeks partial summary judgment on the breach of contract claim. Defendant has responded by opposing the motion, and by cross moving for summary judgment on each of the plaintiff's claims.
In her second motion, the plaintiff seeks partial summary judgment as to the defendant's ninth through fifteenth affirmative defenses. Defendant has responded by confessing the motion as to the tenth, thirteenth and fifteenth defenses, and by cross moving for summary judgment as to its ninth, eleventh, twelfth and fourteenth affirmative defenses.
The parties have fully briefed the issues and oral argument would not materially facilitate the decision process. Jurisdiction is founded on 28 U.S.C. § 1332.
I. Facts.
During April 1989, Rudy Barciak (Barciak), now deceased, received four medical examinations from Dr. Allen Snyder, an internist. Barciak sought medical attention for shortness of breath and difficulty in sleeping. Dr. Snyder performed a number of tests, including a chest X-ray and an electrocardiogram (EKG). Dr. Snyder also prescribed medication for Barciak and referred him to Dr. Paul Turvey, a cardiologist. Barciak scheduled an appointment with Dr. Turvey for May 13, 1989.
On May 1, 1989, United insurance agent Richard Winter assisted Barciak in completing a United life insurance application. Barciak designated his wife, the plaintiff, as beneficiary. The application form that *841 Barciak completed specifically requested information regarding medical treatment he had received in the past five years, including medical care for chest pain and medical tests such as EKGs and X-rays. The completed application neither mentioned Barciak's April 1989 examinations by Dr. Snyder nor indicated that he had received any of the above-mentioned medical tests, health care or referral to a cardiologist.
Barciak signed the application on May 1, 1989, four days after his most recent visit with Dr. Snyder. Barciak's signature verified that his answers to the application's questions were "true and complete to the best of my knowledge and belief...." (Plaintiff's Ex. 3, p. 2).
On May 15, 1989, a United representative conducted a follow-up telephone interview with Barciak regarding his life insurance application. (Plaintiff's Ex. 7). At that time, Barciak stated that he had seen Dr. Snyder, a general practitioner, for a "headache" and that a battery of tests had been performed, including blood, urine, chest x-ray, EKG, heart lungs, eyes, ears, nose, throat and blood pressure.[1] (Plaintiff's Ex. 7). He further stated that Dr. Snyder's diagnosis was unknown and that no medication or treatment had been prescribed. Id. When asked directly if he had consulted with any other physician, Barciak answered "no." Id.
During that telephone conversation, Barciak did not disclose that he had seen Dr. Snyder four times during April 1989; that Dr. Snyder had repeatedly warned him about a possible heart problem; that Dr. Snyder had prescribed medication for a heart condition as well as tranquilizers for stress related to Barciak's having just quit smoking; that he had been referred to and examined by Dr. Turvey two days prior to the May 15 telephone interview; and that Dr. Turvey had recommended additional treatment and follow-up for a possible heart condition. (Defendant's Ex. D and I).
United approved Barciak's life insurance application on May 25, 1989. On July 9, 1989, Barciak died of a heart attack. July 25, 1989, the plaintiff submitted a claim to United for payment of the life insurance policy proceeds.
United thereafter investigated the plaintiff's claim for benefits. In a letter dated November 2, 1989, United wrote to the plaintiff that had it been aware of Barciak's condition and treatment at the time of his application, it would not have issued the policy. United further stated that because Barciak had failed to disclose material information on his application, it considered the policy void from the date of issue. United therefore denied the plaintiff's claim for policy benefits. (Plaintiff's Ex. 6, p. 1).
II. Discussion.
In her first motion, the plaintiff seeks partial summary judgment on the breach of contract claim. Plaintiff asserts that because Barciak disclosed to United, in his follow-up telephone interview, "that he had seen Snyder during April of 1989," (plaintiff's brief, p. 3), the ground on which United premised its denial of insurance benefits was without merit. She argues that United had constructive notice of Barciak's condition and therefore had a duty independently to investigate the reason for Barciak's visit to Dr. Snyder. United's failure to conduct that investigation, she contends, precludes it from denying insurance benefits on the ground of misrepresentation.
Plaintiff has responded to the defendant's cross motion for summary judgment by arguing that Barciak's lack of English language competency prevented him from understanding Dr. Snyder's diagnosis of a possible heart condition and from relating that condition to United. Because Barciak did not fully comprehend that diagnosis, she argues, he could not knowingly have made false statements to United regarding his heart condition. (Plaintiff's response, p. 8.) Plaintiff therefore contends that summary judgment is improper because there is a genuine fact issue whether Barciak "knowingly" concealed material facts from United.
*842 Summary judgment is proper if the pleadings, depositions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment also is appropriate where the court can conclude, as a matter of law, that based on the record taken as a whole, no reasonable juror could find for the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
In Murray v. Montgomery Ward Life Ins. Co., 196 Colo. 225, 584 P.2d 78 (1978), the Colorado Supreme Court set forth five elements that an insurance company must prove to justify recission of a life insurance policy on the basis of misrepresentation in the application. Those elements are:
"(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy." Id. 584 P.2d at 80 (emphasis added); see also Hollinger v. Mutual Benefit Life Ins. Co., 192 Colo. 377, 560 P.2d 824 (1977).
In Murray, the Colorado Supreme Court upheld a jury verdict and judgment in favor of an insurance company. There, the decedent Jane Murray fell from a horse, sustaining serious skull and brain injuries. She initially sought and obtained a hospital income insurance policy from the defendant insurance company, a policy that paid Murray's claims for hospital expenses. Murray, 584 P.2d at 79.
Murray subsequently applied for a life insurance policy with the defendant. In response to questions on the application concerning her past and present physical condition, Murray stated that she had had X-rays due to a head injury from a fall and that as a result of medical treatment, she had "recovered." Murray, 584 P.2d at 80. The life insurance was issued to her shortly thereafter.
Within a month after the life policy's issuance, Murray was rehospitalized for surgery related to her accident injuries. She died two months later as a result of complications from the surgery. The life insurance company refused to pay Murray's husband's claim under its policy, asserting that the decedent had misrepresented the state of her health on the application. Id. 584 P.2d at 80.
In Murray, the plaintiff claimed that because the insurance company had previously paid the decedent's hospital claims related to her earlier accident, it had "constructive notice" of her condition and thus waived any right to deny benefits on the grounds of fraud. Id. 584 P.2d at 80. The Colorado Supreme Court disagreed, however, holding that the decedent had an obligation to answer questions on the life insurance form truthfully and in good faith, and that Murray's failure to inform the insurance company of her serious medical problem precluded payment under the policy. Id. 584 P.2d at 80.
The Tenth Circuit also has considered the issue whether an insured's misrepresentations are sufficient grounds for denying insurance benefits. In Major Oil Corp. v. Equitable Life Assur. Soc. of U.S., 457 F.2d 596, 602 (10th Cir.1972), the court stated the general rule that an intentional misrepresentation of a material fact by an applicant, relied on by the insurer, permits the latter to void the policy. The court, however, recognized an exception to that rule where an insurer has:
"actual knowledge of the true facts, or of the falsity of the statements, or at least has sufficient indications that would put a prudent [person] on notice and would have caused [that person] to start an inquiry which, if carried out with *843 reasonable thoroughness, would reveal the truth." Id. at 602 (emphasis added).
Plaintiff concedes that Barciak failed to disclose pertinent information regarding the state of his health. She asserts, however, that because United knew of Barciak's consultation with Dr. Snyder in April 1989, it should have investigated the nature of that consultation. Plaintiff further argues that Barciak's failure to disclose pertinent information regarding his diagnosis resulted from his unfamiliarity with English, rather than from an intent to conceal material facts from United.[2] The issues for decision, therefore, are: (1) whether United had sufficient indications regarding Barciak's condition that it should have conducted an independent investigation into the state of his health; and (2) whether Barciak knowingly concealed material facts from United during the insurance application process.
It is not disputed that Barciak made several false or misleading statements and failed to disclose vital information to United. In his application for life insurance, Barciak was asked whether "during the last five years have you or any person you wish to insure ... received medical care for any illness or injury or been examined by a doctor ... had an EKG, X-ray or other medical test ... received medical care for or had chest pain, heart attack, heart murmur or other heart disease?" To those questions, Barciak answered "No." (Plaintiff's Ex. 3, p. 2). Barciak's misrepresentation of recent medical history in his application, if made knowingly, would be a basis for United's rescission of the insurance contract. See, e.g., Spencer v. Kemper Investors Life Ins. Co., 764 P.2d 408, 412 (Colo.App.1988).
The evidence is inconclusive whether Barciak directly answered the questions on the life insurance application himself or whether United agent Winter simply transferred the answers from Barciak's already completed health insurance application submitted two months earlier. (See Plaintiff's response, Ex. 4, p. 153-156). Even if Winter completed the application, however, the law charges Barciak with constructive knowledge of the contents of the application he signed. Golden Rule Ins. Co. v. Lease, 755 F.Supp. 948, 952 (D.Colo.1991).
Moreover, by signing the application, Barciak represented that his answers were true and complete to the best of his knowledge and belief. (Plaintiff's Ex. 3, p. 2). The law is clear that one who signs a contract is presumed to have read and understood each of its terms. Master Palletizer Systems, Inc. v. T.S. Ragsdale Co., 725 F.Supp. 1525 (D.Colo.1989); Clayton Brokerage Co. of St. Louis, Inc. v. Stansfield, 582 F.Supp. 837 (D.Colo.1984); Rasmussen v. Freehling, 159 Colo. 414, 412 P.2d 217 (1966).
Arguably, Barciak could have cured the application's false statements and omissions in his subsequent telephone interview with United. It is uncontroverted, however, that Barciak during that phone call falsely stated that his visit (singular) to Dr. Snyder had been for treatment of a headache and that no medication had been prescribed. Plaintiff's own evidence demonstrates that Barciak told his wife and son that he needed medical attention for shortness of breath and explained to his aunt, after his initial visit to Dr. Snyder, that he had been given pills to treat a "lung" condition. (Plaintiff's Ex. 9, Stephanie Matecha dep. p. 40-41). It is further uncontroverted that Barciak failed to disclose other significant, recent medical treatment. (See p. 841, supra).
Taking the evidence in the light most favorable to the plaintiff, as I must, it is clear that even if Barciak did not understand Dr. Snyder's diagnosis, he did knowingly conceal material facts from United by misstating the nature of his consultation with Dr. Snyder, by failing to disclose that Dr. Snyder had placed him on medication, *844 and by failing to inform United that he had seen Dr. Turvey on May 13, 1989, for additional diagnosis or treatment of his heart condition.
The only evidence that arguably may have put United on notice that Barciak's medical condition was significant was the fact that Barciak had undergone a chest X-ray and EKG. In the telephone conversation with the United representative, however, Barciak asserted that Dr. Snyder was a general practitioner, rather than a specialist in internal medicine. He further stated that he had undergone a battery of medical tests suggestive of a general physical examination. (See supra, p. 841, n. 1.) Barciak's misleading statements and failure to disclose the true nature of his recent medical examinations and prescribed treatment thus establish grounds for United's recission of the insurance policy. Murray v. Montgomery Ward Life Ins. Co., 196 Colo. 225, 584 P.2d 78 (1978).
For the above reasons, I find and conclude that Barciak's statement that he had visited a general practitioner for treatment of a headache was insufficient to cause a prudent person to investigate Barciak's medical condition. See Major Oil Corp. v. Equitable Life Assur. Soc. of U.S., 457 F.2d 596 (10th Cir.1972); Murray v. Montgomery Ward Life Ins. Co., 196 Colo. 225, 584 P.2d 78 (1978). I further conclude that Barciak's alleged lack of English language proficiency does not vitiate his knowing concealment or misrepresentation of material facts.
Rather the uncontroverted facts establish that United relied to its detriment on Barciak's false statements and material omissions when issuing the policy at issue. Those false statements and omissions necessarily affected United's acceptance of the risk it assumed. Accordingly, the defendant's cross motion for summary judgment on the plaintiff's complaint and action must be granted. See, e.g., Murray, 584 P.2d at 80.
Plaintiff's second claim, asserting a breach of the covenant of good faith and fair dealing, is contingent on a finding that United breached its contract by failing to pay contract benefits due. Because I have concluded that United did not breach its contract, the second claim fails as a matter of law. Plaintiff's third claim asserting emotional distress as the result of the defendant's alleged breach of its duty of good faith and fair dealing likewise fails for the same reason.
Accordingly, IT IS ORDERED that:
(1) the defendant's cross motion for summary judgment on the plaintiff's claim and action is granted;
(2) the plaintiff's complaint and action are dismissed with prejudice;
(3) the plaintiff's motion for partial summary judgment on her breach of contract claim is denied;
(4) the plaintiff's motion for partial summary judgment on the defendant's affirmative defenses is denied as moot; and
(5) the defendant's cross motion for partial summary judgment on their ninth, eleventh, twelfth, and fourteenth affirmative defenses is denied as moot; and
(6) each party shall bear her or its own costs.
NOTES
[1] I note that Snyder is an internist, not a general practitioner.
[2] It is settled Colorado law that an insurance policy can be avoided without establishing the separate element of "intent to deceive." See, e.g., Hollinger, 560 P.2d at 827. I construe the plaintiff's argument as asserting that Barciak did not knowingly make a false statement material to the insurer's assumption of risk. See id.
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421 A.2d 57 (1980)
STATE of Maine
v.
Richard R. SAUCIER.
Supreme Judicial Court of Maine.
Argued September 10, 1980.
Decided October 22, 1980.
David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.
Richard W. Hall (orally), Ford & Hall, Bangor, for defendant.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, and ROBERTS, JJ.
GODFREY, Justice.
Defendant Richard R. Saucier appeals from a conviction for Class C gross sexual misconduct in violation of 17-A M.R.S.A. § 253(2)(B) (1979).[1] That statute imposes criminal liability on anyone who compels or induces another person, not his spouse, to engage in sexual intercourse or a sexual act *58 (defined in 17-A M.R.S.A. § 251(1)(C)) by means of any threat. The indictment followed the language of the statute.[2] Defendant contends that the indictment failed to charge an offense because it lacked a description of the threat he was charged with making, failed to indicate that the victim did not consent to the sexual intercourse, and omitted any reference to a culpable mental state. We affirm the judgment of conviction.
Defendant first argues that he was unable to prepare his defense properly because the indictment failed to describe the threat he was supposed to have used.
Rule 7(c), M.R.Crim.P. states that an indictment need only contain "a plain, concise and definite statement of the essential facts constituting the offense charged." An indictment that charges in the language of the statute is sufficient if it adequately provides a defendant of reasonable and normal intelligence with a clear identification of the crime and conduct charged. State v. Sampson, Me., 387 A.2d 213, 216 (1978). Where, as here, the indictment tracks the language of the statute governing the offense charged and that language, understood according to its natural import, sufficiently sets out the facts constituting the crime, the defendant has no basis for complaint that he is uninformed or confused about the nature of the charges against him. State v. Sampson, supra, at 216; State v. Holt, Me., 391 A.2d 822, 824 (1978); State v. Thibodeau, Me., 353 A.2d 595 (1976). If the defendant wanted further information about the type of threat he was accused of making, his remedy was through discovery pursuant to Rule 16, M.R.Crim.P. See State v. Stoddard, Me., 289 A.2d 33, 35 (1975).
Defendant's contention that the indictment was deficient for failing to allege that the complainant did not consent to the sexual intercourse is without merit. The governing statute does not use the language of lack of consent, but instead speaks of compulsion or inducement. While sexual intercourse resulting from a bargain for gain would obviously not be within the scope of section 253(2)(B),[3] the statute is clearly designed to reach certain situations where the victim does, in some sense, acquiesce in the sexual activity. The legislature has decided to impose criminal liability on one who induces another to engage in sexual intercourse or a sexual act by putting the other to a choice between acceding to the sexual activity or enduring threatened odious consequences. Since lack of consent is therefore not an element of gross sexual misconduct under section 253(2)(B), the indictment was not deficient for failing to allege the complainant's lack of consent.
Finally, the defendant argues that the indictment was deficient for failing to allege a culpable state of mind. Citing 17-A M.R.S.A. § 11(5) (1979),[4] defendant *59 contends that a culpable mental state is an element of every offense unless the statute expressly negates that element or unless a legislative intent to dispense with a culpable mental state otherwise appears.
Analysis of chapter 11 of the Maine Criminal Code reveals a coherent classification of sex offenses in which certain offenses are so defined as to require expressly a culpable mental state and others are not. In general, the more forceful or egregious sexual conduct is defined without reference to the actor's state of mind. Thus, unlawful sexual contact, as defined by 17-A M.R. S.A. § 255 (1979), expressly requires intent.[5] The requirement of intentional behavior is needed to prevent accidental touching from being criminal.[6]
Sexual abuse of minors under 17-A M.R. S.A. § 254 (1979) is so defined as to include consensual sexual relations between a person between the ages of fourteen and sixteen and another who is at least five years older. Since, by force of the statute, it is the younger person's age alone that renders such an act criminal, the statute makes it a defense to prosecution under that section that the defendant reasonably believed the victim was more than sixteen years old.
At the far end of the scale of enormity, rape under 17-A M.R.S.A. § 252(1) (1979) requires either sexual intercourse with a child under fourteen (not the actor's spouse) or intercourse that is compelled by force or by a threat of imminent death, serious bodily injury, or kidnapping. The definition of the crime does not include any requirement of intent or any other culpable mental state. In the context of the careful definitions of sex offenses in the Code, it is clear that 17-A M.R.S.A. § 252(1) does not require a culpable mental state for rape.
The behavior constituting gross sexual misconduct under 17-A M.R.S.A. § 253(2)(B) bears a considerable resemblance to rape by threat of death, serious bodily injury, or kidnapping under 17-A M.R.S.A. § 252(1)(B)(2). Gross sexual misconduct likewise carries no requirement of a culpable mental state. That omission was not accidental. The statute is based on the premise that one person cannot accidentally or innocently induce another person to engage in sexual intercourse by means of a threat. As in rape by threat, no explicit allegation of a culpable mental state was necessary in the indictment.
The entry is:
Appeal denied.
Judgment affirmed.
All concurring.
NOTES
[1] Section 253 provides in pertinent part:
A person is guilty of gross sexual misconduct
. . . . .
2. If he engages in sexual intercourse or a sexual act with another person, not his spouse, and
. . . . .
B. He compels or induces the other to engage in such sexual intercourse or sexual act by any threat . . . .
[2] The indictment made the following allegations:
That on or about the 14th day of December 1979, in the County of Penobscot, State of Maine, RICHARD R. SAUCIER did engage in sexual intercourse with [deleted], not his spouse, and RICHARD R. SAUCIER compelled or induced said [deleted] to engage in said sexual intercourse by a threat ....
[3] See Model Penal Code § 207.4, Comment (Tent. Draft No. 4, 1955).
As the gravity of the threat diminishes, the situation gradually changes from one where compulsion overwhelms the will of the victim to a situation where she can make a deliberate choice to avoid some alternative evil .... The situation may move into a shadow area between coercion and bargain. A bargain for gain is not within the present section; but [the section] is designed to reach all situations of actual compulsion, i. e., where the... submission is determined by fear of harm....
See Model Penal Code § 213.1(2)(a) (Proposed Official Draft, 1962).
[4] Section 11 provides, in pertinent part:
. . . . .
5. If a statute defining a crime in this code does not expressly prescribe a culpable mental state with respect to some or all of the elements of the crime, a culpable mental state is nevertheless required ... unless:
A. The statute expressly provides that a person may be guilty of a crime without culpability as to those elements; or
B. A legislative intent to impose liability without culpability as to those elements otherwise appears.
[5] Section 255 provides, in pertinent part:
1. A person is guilty of unlawful sexual contact if he intentionally subjects another person, not his spouse, to any sexual contact....
[6] Section 251(1)(D)(1979) provides as follows:
D. "Sexual contact" means any touching of the genitals, directly or through clothing, other than as would constitute a sexual act, for the purpose of arousing or gratifying sexual desire.
The "purpose" clause of that definition reinforces the legislative goal of ensuring that innocent conduct is not treated as criminal.
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777 F.Supp. 116 (1991)
Carol CURRAN, et al., Plaintiffs,
v.
CITY OF BOSTON, et al., Defendants.
Civ. A. No. 90-11594MA.
United States District Court, D. Massachusetts.
November 14, 1991.
*117 *118 John J. Costello, Francis J. Hurley, Costello & Hurley, South Boston, Mass., for plaintiffs.
Susan M. Weise, Boston, Mass., for all defendants and Raymond D'Oyley and Gladys Frias.
ORDER
DAVID S. NELSON, District Judge.
The plaintiffs filed this action against the defendants, the City of Boston, the Boston Police Department, Francis Roache, the Commissioner of the Boston Police Department, the Internal Affairs Department, and several police officers alleging civil rights violations. The plaintiffs sought injunctive relief and damages. The matter was referred to Magistrate Bowler for a recommendation on a motion to dismiss the action for failure to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The motion was filed by defendants the Boston Police Department, the Internal Affairs Department of the Boston Police Department, the City of Boston and Francis Roache.
On April 2, 1991, in a Report and Recommendation ("Report"), the magistrate issued her findings that the defendants Boston Police Department and the Internal Affairs Department of the Boston Police Department were non-persons and therefore not proper party defendants. The magistrate also found that the plaintiff failed to aver sufficient allegations to support a claim under the Massachusetts Civil Rights Statute, Mass.Gen.L. ch. 12, § 11H (1986 and Supp.1991) ("Civil Rights"). As to the remaining claims under 42 U.S.C. § 1983 (1981 and Supp.1991), the fifth amendment and negligence, the magistrate issued findings that the plaintiffs' allegations were sufficient to withstand the motion to dismiss. The magistrate recommended allowing the motion to dismiss as to the improper parties and the Civil Rights claim and denying the motion to dismiss as to the remaining claims.
Having reviewed the magistrate's recommendations, and there being no opposition thereto, this court agrees with the Report's findings that the defendants Boston Police Department and the Internal Affairs Department of the Boston Police Department are not proper party defendants and that the plaintiffs failed to assert sufficient allegations to support the Civil Rights claim. This court further agrees that the plaintiffs' complaint contains sufficient allegations to withstand the motion to dismiss as to the remaining claims. Accordingly, the court ALLOWS and ADOPTS the findings and recommendations of the Report and orders the defendants the Boston Police Department, the Internal Affairs Department of the Boston Police Department, City of Boston's and Francis Roache's motion to dismiss be allowed in part and denied in part as discussed above.
SO ORDERED.
REPORT AND RECOMMENDATION RE: DEFENDANTS, THE BOSTON POLICE DEPARTMENT, THE INTERNAL AFFAIRS DEPARTMENT OF THE BOSTON POLICE DEPARTMENT, CITY OF BOSTON'S AND FRANCIS ROACHE'S MOTION TO DISMISS (DOCKET ENTRY # 10)
April 2, 1991
MARIANNE B. BOWLER, United States Magistrate Judge.
Plaintiffs filed this action for injunctive relief and damages against the City of Boston, *119 the Boston Police Department, the Commissioner of the Boston Police Department, the Internal Affairs Department, and several police officers for civil rights violations arising out of an alleged assault that occurred on September 27, 1988 in Dorchester.
I.
For purposes of this motion, the facts as stated in the plaintiffs' complaint must be accepted as true. On September 27, 1988, two officers of the Boston Police Department entered the property of the plaintiff, Carol Curran ("Ms. Curran"), and assaulted, battered, and beat Ms. Curran about the face and body without provocation. (Docket Entry # 1, ¶¶ 1 and 13). Ms. Curran and her husband reported the above incident to the Internal Affairs Department of the Boston Police Department ("Internal Affairs") on September 28, 1988. Since the filing of that complaint, Internal Affairs has not adequately responded to the plaintiffs' concerns. (Docket Entry # 1, ¶ 21).
Subsequently, on November 7, 1988, the plaintiff, Mark Curran ("Mr. Curran"), Ms. Curran's son, was arrested and falsely charged with assault and battery on a police officer, disorderly person, and public drinking. (Docket Entry # 1, ¶¶ 1, 23, and 24). Mr. Curran was adjudicated not guilty on these charges on February 8, 1989. (Docket Entry # 1, ¶ 28).
Plaintiffs allege various injuries resulting from the incidents described above.
II.
Defendants, the City of Boston, the Boston Police Department, Internal Affairs, and Francis Roache (Commissioner of the Boston Police Department), filed a motion to dismiss the above captioned action for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ.P. 12(b)(6). (Docket Entry # 10). This court conducted a hearing pursuant to that motion on March 8, 1991. Subsequently, this court issued a procedural order directing the plaintiffs to resubmit their opposition to the motion to dismiss in accordance with the Local Rules of this Court. That submission was received by this court on March 18, 1991, and the court now addresses the merits of the motion to dismiss.[1]
The defendants have asserted the instant motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The defendants allege: (1) neither the City of Boston Police Department nor the Internal Affairs Department of the Boston Police Department exist as an independent legal entity; (2) local government cannot be held liable pursuant to 42 U.S.C. § 1983 without a finding that the alleged injurious conduct was the result of an official policy or custom; and (3) plaintiffs have failed to state a claim for relief against Francis Roache ("Roache") in his official capacity for the same reasons that they have failed to establish a claim against the city; and (4) the plaintiffs have failed to set forth a claim against Roache individually, as they have not alleged that Roache's own action is the cause of the claimed violation and injury. (Docket Entry # 10).
Fed.R.Civ.P. 12(b)(6) requires the court to accept as true all factual allegations outlined in the complaint with all reasonable inferences made in favor of the non-moving party. Miree v. Delkab County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). Legal conclusions, deductions or opinions, however, are not given a presumption of truthfulness. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); see Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 *120 (10th Cir.1977) (discussing procedure relevant to a motion to dismiss); Mitchell v. Archibald and Kendall, Inc., 573 F.2d 429 (7th Cir.1978) (stating standard relative to motion to dismiss). The court may not dismiss the complaint unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam) (citations omitted), reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see Correa-Martinez v. Arrillaga-Belendez, 903 F.2d at 52 (discussing standard for motion to dismiss).
A. Section 1983
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1981). Initially, to state a claim under Section 1983, the plaintiff must allege the deprivation of a right secured by the Constitution. The instant complaint is sufficient to withstand scrutiny with respect to this element, as it alleges that the defendants beat the plaintiff, Ms. Curran, and allegations of police brutality clearly state a claim under the civil rights law. See Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (1st Cir. 1980) (addressing allegations of police brutality).
The crux of the instant motion to dismiss is the second requirement of Section 1983, which dictates that a plaintiff allege a sufficient basis for municipal liability. A plaintiff, to meet this requirement, must allege that the deprivation at issue resulted from a municipal custom or policy. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); see Andujar v. City of Boston, 760 F.Supp. 238 (D.Mass.1991) (discussing municipal liability under civil rights statute); Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir.1989) (liability under Section 1983 requires demonstration of municipal policy or custom).
1. City of Boston Police Department
For purposes of a Section 1983 action, a police department is considered a non-person. Henschel v. Worcester Police Department, 445 F.2d 624 (1st Cir.1971). The City of Boston Police Department is not a suable entity. See id. (stating that City of Worcester Police Department is not suable entity). This court, accordingly, RECOMMENDS that the defendants' motion to dismiss be ALLOWED insofar as it concerns the City of Boston Police Department on the basis that the police department is not a proper party defendant.
2. Internal Affairs Department of City of Boston Police Department
Internal Affairs is a division of the City of Boston Police Department. It is therefore, the RECOMMENDATION of this court that the motion to dismiss with respect to the defendant, Internal Affairs, also be ALLOWED on the basis that it is not a proper party defendant.
3. City of Boston
Plaintiffs allege, with respect to the defendant, City of Boston ("City"), that the individual defendants were acting under color of state law and within their scope as police officers of the City. (Docket Entry # 1, ¶ 8). The plaintiffs also allege that they were "verbally harassed and abused by a police officer not known to the plaintiffs who was an employee, agent, and/or servant of the City of Boston ... and acting in his official capacity." (Docket Entry # 1, ¶ 22). In addition, the plaintiffs claim that the City did not adequately investigate the complaints filed by the plaintiffs and that the actions and/or inactions of the City constitute indifference to the injuries *121 and civil rights violations alleged by the plaintiffs. (Docket Entry # 1, ¶¶ 33 and 44-5). The plaintiffs also allege a claim of negligence against the City for the alleged negligent hiring of the defendant police officers. (Docket Entry # 1, ¶¶ 59-60).
It is clear that local government liability in a Section 1983 action may not be premised upon a theory of respondeat superior. Monell v. New York Department of Social Services, 436 U.S. at 691, 98 S.Ct. at 2036. Accordingly, to the extent that the complaint rests upon the allegation that the City, through its agents, employees, servants, and/or representatives, acted in contravention to the plaintiffs' civil rights, it must fall.
A plaintiff must allege that the injuries complained of are the result of an official policy or custom. The plaintiff must assert both the existence of a policy or custom and a causal link between that policy or custom and the constitutional injury. Santiago v. Fenton, 891 F.2d at 381.
The plaintiffs, in their opposition to the instant motion, state that their complaint is based upon the deliberate indifference of the City and the negligent hiring, training, and supervising of the officers involved in the incidents in question. In order to assert such a basis for a Section 1983 claim, the plaintiffs must allege that their injuries were caused by a custom or policy of gross negligence amounting to deliberate indifference in the recruitment, training, supervision, or discipline of the officers. See Bordanaro v. McLeod, 871 F.2d 1151, 1158-9 (1st Cir.1989), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989), (discussing municipal liability under Section 1983); see also generally City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (municipality may be held liable only where failure to train amounts to deliberate indifference). In addition to stating the inadequacies of the program at issue, the plaintiffs must allege that the municipal officials charged with making police department policy were "deliberately indifferent" to those inadequacies. Bordanaro v. McLeod, 871 F.2d at 1161.
It is clear that a claim under Section 1983 against a municipality may rest upon a custom or policy of failing to train the municipal officers. In order to establish the existence of such a custom, the plaintiff must allege, at a minimum, deliberate indifference in the training, recruitment, supervision or discipline of municipal employees. "Such a showing requires that the municipal decision makers knew or should have known of officers' misconduct, and that they failed to take reasonable measures to rectify the situation." Hathaway v. Stone, 687 F.Supp. 708, 710 (D.Mass.1988).
While such a claim is not entirely clear from the face of the complaint, it appears that the plaintiffs are attempting to base a claim of deliberate indifference upon the failure of the City to investigate or respond to the complaint filed by the plaintiffs with Internal Affairs. Drawing all inferences in favor of the plaintiffs, it is reasonable to infer the allegation that the City's deliberate failure to investigate the claim, of which it had knowledge by virtue of the filing of the complaint with Internal Affairs, resulted in the failure to supervise and/or discipline the officers in conjunction with the underlying incident or to take reasonable measures to rectify the reported incident.
The defendants also argue that the incident at issue is a single alleged violation and that no pattern of civil rights violations is evident from the complaint. (Docket Entry # 10, p. 9). The complaint, however, depicts the allegedly unlawful arrest and detention of Mr. Curran as related to the initial incident involving Ms. Curran. It is the opinion of this court that the incidents in question do not give rise to the type of "single incident" addressed by the Supreme Court in Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791; see Andujar v. City of Boston, 760 F.Supp. 238, 241-42 (citations omitted) (discussing meaning of "single incident").
Although the plaintiffs may have a difficult task ahead in proving the facts necessary *122 to support their allegations against the City, this court is not satisfied that they have failed to allege a claim of municipal liability sufficient to withstand a motion to dismiss, particularly where all reasonable inferences must be drawn in favor of the plaintiffs. See Andujar v. City of Boston, at 241-42 (noting tenuousness of allegations but finding sufficient allegation of failure to train to withstand motion to dismiss where plaintiff makes blanket allegation of policy with respect to execution of warrants).
It is, accordingly, the RECOMMENDATION of the court that the motion of the City to dismiss the instant action for failure to adequately state a claim for relief under 42 U.S.C. § 1983 be DENIED.[2]
4. Francis Roache
A supervisory official may not be held liable under Section 1983 without a showing of at least gross negligence or deliberate indifference and the demonstration of a causal link between that indifference and the resulting constitutional violation. Guzman v. City of Cranston, 812 F.2d 24, 26 (1st Cir.1987); Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). A superior officer may be held liable for failing to establish procedures to correct unconstitutional conduct of which the officer has notice, although not with respect to a single act or isolated incident. McClelland v. Facteau, 610 F.2d 693 (10th Cir.1979).
For the reasons discussed above with respect to the claims against the City, it is also the RECOMMENDATION of this court that the motion to dismiss the instant action against Francis Roache be DENIED.
B. Massachusetts General Laws Chapter 12, Section 11I
The plaintiffs have also brought claims under the Massachusetts Civil Rights Statute, Mass.Gen.L. Ch. 12, § 11I. Mass.Gen.L. ch. 12, § 11I provides for a private right of action for interference with individual rights "secured by the [C]onstitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth ... as described in section 11H." Mass.Gen.L. ch. 12, § 11H provides a civil cause of action:
Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the [C]onstitution or laws of the United States or of rights secured by the constitution or laws of the commonwealth.
Id. Stating a claim under 42 U.S.C. § 1983 does not, however, automatically result in a valid claim under the Massachusetts Civil Rights Act. Andujar v. City of Boston, at 242 (citations omitted).
In order to state a claim pursuant to the Massachusetts Civil Rights Statute, the plaintiffs must allege the deprivation of their rights by threats, intimidation or coercion. Hathaway v. Stone, 687 F.Supp. at 711. A claim based upon the City's failure to train is not sufficient to state a claim pursuant to this statute.
Accordingly, it is the RECOMMENDATION of this court that the defendants' motion to dismiss be ALLOWED with respect to the claims brought under Mass. Gen.L. ch. 12, § 11I.
C. Fifth Amendment
The defendants also assert that the plaintiffs have improperly brought claims against state officials under the fifth amendment of the United States Constitution. The fifth amendment clearly provides for a cause of action against officials of the federal government. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The protections guaranteed by the fifth amendment *123 are applied to the states and against state officials through the due process clause of the fourteenth amendment.
The complaint merely states that the action, as a whole, is brought pursuant to the fifth and fourteenth amendments, among other statutes and constitutional amendments. (Docket Entry # 1, ¶ 2). This court is of the opinion that a reasonable interpretation of that statement is that the plaintiffs are alleging the protections of the fifth amendment as guaranteed by the due process clause of the fourteenth amendment.
Accordingly, it is the RECOMMENDATION of this court that the defendants' motion to dismiss be DENIED with respect to the "claims pursuant to the fifth amendment."
D. Negligence
1. City of Boston
Count Six of the complaint alleges that the City was negligent in failing to train and supervise its employees. The defendants only objection to this claim is one of causation. The question of proximate cause is a question of fact, and this court will not base a motion to dismiss upon such an issue.
Count Seven of the complaint alleges that the City was negligent in hiring the officers involved in the incidents in question. Again, the only basis for the instant motion to dismiss offered by the defendants is a lack of causation.
It is, therefore, the RECOMMENDATION of this court that the defendants' motion to dismiss be DENIED with respect to Counts Six and Seven of the complaint.
III
Accordingly, it is the RECOMMENDATION[3] of this court that Defendants the Boston Police Department, the Internal Affairs Department of the Boston Police Department, City of Boston's and Francis Roaches' Motion to Dismiss (Docket Entry # 10) be ALLOWED in part and DENIED in part as discussed above.
NOTES
[1] It is important to note, at this juncture, that the opposition submitted by the plaintiffs rests primarily upon an assertion that whether or not the plaintiff can establish any municipal practices or customs which led to the incidents at issue is a question of fact that must be uncovered through discovery. While discovery may help to clarify the issues, a plaintiff must plead specific facts in support of a claim of a civil rights violation. Glaros v. Perse, 628 F.2d 679, 684 (1st Cir.1980).
[2] This court notes the statement by the defendants on page 12 of their motion to dismiss (Docket Entry # 10) that the City and Francis Roache are entitled to summary judgment on all counts arising under 42 U.S.C. § 1983, but understands the defendants to have intended to treat the request as a motion to dismiss.
[3] Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten days of receipt of the Report and Recommendation and must identify the portion of the Report and Recommendation to which objection is made and the basis for such objection. Any party may respond to another party's objections within ten days after service of the objections. Failure to file objections within the specified time waives the right to appeal the district court's order. United States v. Escoboza Vega, 678 F.2d 376, 378-79 (1st Cir.1982); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986).
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167 Cal.App.4th 412 (2008)
LLOYD BOUTON, Plaintiff and Appellant,
v.
USAA CASUALTY INSURANCE COMPANY, Defendant and Respondent.
No. D048522.
Court of Appeals of California, Fourth District, Division One.
October 7, 2008.
*415 Law Office of Jacques J. Kirch, Jacques J. Kirch; Law Offices of Daniel S. Rosenberg and Daniel S. Rosenberg for Plaintiff and Appellant.
Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine and Erin O'Neill Hallissy for Defendant and Respondent.
OPINION
McDONALD, J.
We reconsider this appeal on remand from the California Supreme Court after its decision in Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190 [78 Cal.Rptr.3d 519, 186 P.3d 1] (Bouton). Lloyd Bouton appeals an order denying his petition to compel arbitration of his claim against USAA Casualty Insurance Company (USAA) for underinsured motorist benefits under the automobile insurance policy USAA issued to his sister. Apparently alternatively, Bouton also appeals an order granting USAA's motion to strike his subsequently filed amended complaint that alleged causes of action for declaratory relief and breach of that insurance policy. In his initial appellant's brief, Bouton contended the trial court erred by denying his petition to compel arbitration because (1) the dispute whether he is an insured under USAA's policy is required to be arbitrated pursuant to Insurance Code section 11580.2, subdivision (f),[1] as interpreted by Van Tassel v. Superior Court (1974) 12 Cal.3d 624 [116 Cal.Rptr. 505, 526 P.2d 969]; and (2) the undisputed facts show he is an insured under USAA's policy entitled to arbitration of his claim. Bouton also contended the trial court erred in granting USAA's motion to strike his amended complaint without leave to amend because (1) the court had jurisdiction over the parties and controversy *416 and had a duty to decide all matters before it; (2) if the court does not decide all of those matters, res judicata will bar those causes of action he may allege in a new (or second) complaint; (3) his amended complaint was properly filed as an amended pleading and any defect was trivial; and (4) even were his pleadings defective, the court should have granted him leave to amend.
In our initial opinion in this case, we concluded section 11580.2, subdivision (f), as interpreted by Van Tassel, required arbitration of the dispute whether Bouton is an insured under USAA's policy despite exclusionary policy language arguably to the contrary. However, after granting USAA's petition for review, the California Supreme Court overruled its decision in Van Tassel and concluded a court, not an arbitrator, must decide whether Bouton is an insured under that policy. (Bouton, supra, 43 Cal.4th at pp. 1200-1201.) Accordingly, Bouton reversed our judgment and remanded the case to this court for further proceedings consistent with its opinion. (Id. at p. 1204.)
In a supplemental brief filed after remand from the California Supreme Court, Bouton contends that because the undisputed facts show he is an insured under his sister's policy, we should reverse the trial court's order denying his petition to compel arbitration and direct it to issue a new order finding he is an insured and granting his petition to compel arbitration. Alternatively, he requests that we reverse the trial court's order denying his petition to compel arbitration and direct the court to issue a new order finding the question whether he is an insured entitled to arbitration is for the court to decide and denying USAA's motion to strike his amended complaint. Because we conclude the trial court should have decided the question whether Bouton is an insured entitled to arbitration under his sister's policy, we reverse the trial court's order denying his petition to compel arbitration and remand with directions to conduct further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2005, in San Diego County Superior Court case No. GIN048508, Bouton filed a petition to compel arbitration (Petition) of his claim against USAA for underinsured motorist benefits under the automobile insurance policy (Policy) USAA issued to his sister, Samela Bouton. The Petition alleged that on May 7, 2004, he was injured in an automobile accident involving an automobile owned and operated by Kevin Daniels. On or about May 4, 2005, Bouton settled his claims against Daniels and his insurer (Mercury Insurance) for his policy's limit of $15,000. On May 20, Bouton demanded that USAA submit to arbitration of his claim under the Policy, which included a provision for uninsured or underinsured motorist benefits. The Petition further alleged, and Bouton's supporting declaration *417 stated, that at the time of the accident (i.e., May 7, 2004), Bouton was a permanent resident of the household, and a blood relative, of his sister, Samela Bouton. Bouton submitted a copy of the Policy in support of the Petition.
The Policy provides uninsured or underinsured motorist (UM) benefits for "covered person[s]."[2] That part of the Policy defines a "covered person" as "1. You [i.e., the named insured] or any family member. . . ." The Policy defines "family member" as "a person related to you [i.e., the named insured] by blood, marriage, or adoption who is a resident of your household. . . ." The Policy provides for arbitration of certain disputes relating to UM benefits: "If [USAA] and a covered person disagree as to: [¶] 1. Whether a covered person is legally entitled to recover [bodily injury] or [property damage] damages from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle; or [¶] 2. The amount of [bodily injury] damages that the covered person is legally entitled to collect from that owner; [¶] then, that disagreement shall be arbitrated, provided both parties so agree. This arbitration shall be limited to the two aforementioned factual issues and shall not address any other issues, including but not limited to, coverage questions. Any arbitration finding that goes beyond the two aforementioned factual issues shall be voidable by [USAA] or a covered person. . . ."
On December 8, 2005, USAA filed its opposition to the Petition, stating it had denied coverage for Bouton's UM claim and arguing that the question whether Bouton was an insured under the Policy was a coverage question not required to be arbitrated under either the Policy or section 11580.2, subdivision (f). On December 16, the trial court (San Diego County Superior Court Judge Joel M. Pressman) issued its order denying the Petition, citing Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473 [121 Cal.Rptr. 477, 535 P.2d 341] (Freeman) and stating: "Here, the wording of the [Policy] between [USAA] and [Bouton's] sister is no broader than that found in Insurance Code § 11580.2[, subdivision] (f). Accordingly, arbitration is warranted between [USAA] and an insured only as to the issues of whether the insured is `legally entitled to recover damages, and if so entitled, the amount thereof.' [Citation.] (Insurance Code § 11580.2[, subd.] (f).) However, at this juncture, [Bouton] has failed to establish that he is an insured, and therefore entitled to the protections of the above-referenced code section. Contrary to his assertions, [Bouton] may not, under the terms of the arbitration clause in *418 the [P]olicy or under Insurance Code § 11580.2[, subdivision] (f), arbitrate the issue of whether or not he is an insured. Accordingly, the instant petition cannot be granted as doing so would compel [USAA] to arbitrate issues broader than those contained in either the agreement or Insurance Code § 11580.2[, subdivision] (f)."
On January 12, 2006, also in San Diego County Superior Court case No. GIN048508, Bouton filed an amended complaint, alleging causes of action for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing. The amended complaint's allegations recited the May 7, 2004, accident and USAA's denial of Bouton's claim for UM benefits. On February 14, USAA filed a motion to strike Bouton's amended complaint, arguing the amended complaint was procedurally improper because he had not filed an original complaint and the trial court's jurisdiction in the instant case (i.e., San Diego County Super. Ct. case No. GIN048508) was limited to granting or denying the Petition.
On March 29, Bouton opposed USAA's motion to strike his amended complaint, arguing the instant case was a pending action giving the trial court jurisdiction over the parties and their dispute, and res judicata would bar his causes of action were he required to file a new (or second) complaint. Bouton also suggested the trial court reconsider its December 16, 2005, order denying the Petition, citing (for the first time) Van Tassel and arguing that, based on Van Tassel's interpretation of section 11580.2, subdivision (f), the factual question of whether he is an insured under the Policy is required to be arbitrated.
On April 12, the trial court (San Diego County Superior Court Judge Richard G. Cline) issued an order granting USAA's motion to strike Bouton's amended complaint without leave to amend. In so doing, the court did not address Bouton's suggestion it reconsider its December 16, 2005, order considering Van Tassel. Bouton timely filed a notice of appeal challenging both orders.
In our original opinion in this matter (Bouton v. USAA Casualty Ins. Co., 145 Cal.App.4th 1441 [52 Cal.Rptr.3d 551] (Dec. 21, 2006, D048522), revd. by Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190 [78 Cal.Rptr.3d 519, 186 P.3d 1]), we followed Van Tassel and concluded the issue whether Bouton is an insured (or covered person) under the Policy is required to be arbitrated pursuant to section 11580.2, subdivision (f). Accordingly, we reversed the trial court's order denying the Petition and remanded with directions that the court vacate that order and issue a new order granting the Petition. After granting USAA's petition for review, the California Supreme Court overruled its decision in Van Tassel and concluded a court, not an *419 arbitrator, must decide whether Bouton is an insured under that policy. (Bouton, supra, 43 Cal.4th at pp. 1200-1201.) Accordingly, Bouton reversed our judgment and remanded the case to this court for further proceedings consistent with its opinion. (Id. at p. 1204.)
On September 4, 2008, Bouton filed a supplemental opening brief in response to Bouton. On September 19, USAA filed a supplemental respondent's brief.
DISCUSSION
I
Section 11580.2, Subdivision (f) Generally
(1) Section 11580.2 "requires insurance policies covering the ownership, maintenance, or use of any motor vehicle to also provide coverage for damages caused by the operation of an uninsured or underinsured motor vehicle. [Citation.] [¶] Unless the insurer and named insured execute a written waiver in the statutory form [citation], section 11580.2 becomes part of every motor vehicle liability insurance policy [citation] and sets forth a mandatory minimum required by law. [Citation.] A policy that purports to limit or provide more restrictive coverage will not be given effect. [Citations.]" (Daun v. USAA Casualty Ins. Co. (2005) 125 Cal.App.4th 599, 606 [23 Cal.Rptr.3d 44], italics added.) "[S]ection 11580.2 defines coverage in terms of the `insured' and not the insured's occupancy of any particular type of motor vehicle." (Ibid.) An "insured" entitled to coverage under section 11580.2 includes an individual named insured and his or her family members who reside in the same household "`while [they are] occupants of a motor vehicle or otherwise.'" (Daun, at p. 606; see § 11580.2, subd. (b).)
(2) Section 11580.2, subdivision (f), requires policy language providing for arbitration of disputes: "The policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. . . ." The purpose of section 11580.2, subdivision (f) "is to offer a means of resolving disputes that is more expeditious and less expensive than litigation. [Citations.] Its beneficiaries include the insurer and the insured . . . ." (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 342 [79 Cal.Rptr.2d 308, 965 P.2d 1178].) Because an insurance policy is a contract, the strong public policy in favor of contractual arbitration applies to the policy arbitration provision required by section 11580.2, subdivision (f). (Mercury Ins. Group, at p. 342; Moncharsh v. *420 Heily & Blase (1992) 3 Cal.4th 1, 9 [10 Cal.Rptr.2d 183, 932 P.2d 899]; Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322 [197 Cal.Rptr. 581, 673 P.2d 251].)
II
California Supreme Court's Decision in Bouton
(3) In Bouton, supra, 43 Cal.4th 1190, the California Supreme Court concluded: "Determining whether a claimant is insured under an uninsured motorist provision is not a question of the underinsured tortfeasor's liability or damages owed to the insured, and is therefore not subject to arbitration under . . . section 11580.2, subdivision (f)." (Id. at p. 1193.) Overruling its holding in Van Tassel to the contrary, Bouton applied its decision in Freeman, supra, 14 Cal.3d 473 to conclude "a court, not an arbitrator, must determine whether Bouton is insured under his sister's policy." (Bouton, at p. 1201.) Bouton explained: "Whether Bouton is a covered person under the insurance policy is not a question regarding the underinsured tortfeasor's liability to the insured, or the amount of damages. Questions of coveragethat is, whether the claimant is insured and therefore entitled to take advantage of the protection provided by the policy at issuemust be resolved before an arbitrator reaches the two arbitrable questions pursuant to section 11580.2, subdivision (f). Here, the policy acknowledges as much, providing that `arbitration . . . shall not address any other issues, including but not limited to, coverage questions.' Coverage questions fall outside of the two issues necessarily arbitrable under section 11580.2, subdivision (f), and must therefore be decided by a court, not an arbitrator, if the parties have not agreed to arbitrate more than the statute requires." (Bouton, supra, 43 Cal.4th at p. 1201, italics added.) Accordingly, Bouton reversed our judgment and remanded the matter to this court for further proceedings consistent with its decision. (Id. at p. 1204.)
III
Did the Trial Court Decide Whether Bouton Is an Insured
Bouton contends the trial court, in denying the Petition, made a factual determination that he is not an insured under the Policy. Bouton argues that because the evidence in support of the Petition was undisputed and shows he is an insured, the trial court erred and should be directed to issue a new order finding he is an insured.
*421 A
The Petition alleged that an actual controversy existed between USAA and Bouton regarding whether the Policy provided UM coverage for his injuries and damages and "that Arbitration is the proper way to determine whether [Bouton] is entitled to damages, and if so[,] the amount of those damages." The Petition alleged, and Bouton's supporting declaration stated, that at the time of the accident (i.e., May 7, 2004), Bouton was a permanent resident of the household, and a blood relative, of his sister, Samela Bouton (the named insured under the Policy). The Petition requested the trial court order USAA and Bouton to arbitrate "the controversy."
In opposing the Petition, USAA argued the Petition sought arbitration of three issues: (1) whether Bouton is an insured under the Policy; (2) if he is an insured, whether Bouton is legally entitled to recover damages from a UM; and (3) if so, the amount of his damages. USAA then argued that because the question whether Bouton is an insured (i.e., a covered person) under the Policy is expressly excluded from the scope of the Policy's arbitration provision, the trial court should deny the Petition. USAA did not submit any declarations or other evidence in opposition to the Petition.
In reply to USAA's opposition, Bouton argued it was USAA's duty to file an action for declaratory relief if it questioned whether he is an insured under the Policy and, because it did not do so, it could not dispute that he is an insured. Bouton stated: "[Bouton] has not requested the court make a finding of insurance coverage in this matter. If coverage is an issue for . . . USAA, it has since failed to act. The issue of whether [Bouton] is afforded coverage under the [P]olicy is not before this court. . . . Since . . . USAA refused to file a declaratory relief action when requested by [Bouton] to decide coverage, it essentially extended coverage and made no objection to coverage."[3] He further stated: "[USAA] has failed to show any evidence to this court in the form of a declaration, or other evidence . . ., that the matter should not go forward to Arbitration. However, to the contrary, [Bouton] has signed a declaration under penalty of perjury that he is entitled to the benefits under the [P]olicy. Therefore, the court must find for [Bouton] and order the parties to Arbitration." Bouton argued USAA "merely claims there is a coverage issue . . . and incorrectly assumes that this court should deny the motion[] just because [USAA] claims there is a dispute [apparently regarding whether *422 he is an insured]." Accordingly, Bouton requested that the trial court grant the Petition.
On December 16, 2005, the trial court issued its written order denying the Petition. Citing Freeman, the court concluded the question whether Bouton is an insured under the Policy is not subject to arbitration under the Policy's arbitration provision, which provides for arbitration only of the two issues required under section 11580.2, subdivision (f). Accordingly, the court concluded the Petition "cannot be granted as doing so would compel [USAA] to arbitrate issues broader than those contained in either the [Policy's arbitration] agreement or . . . § 11580.2[, subdivision] (f)." The court also stated: "[A]t this juncture, [Bouton] has failed to establish that he is an insured, and therefore entitled to the protections of [section 11580.2, subdivision (f)]." The court rejected Bouton's argument that USAA was required to seek declaratory relief that he is not an insured under the Policy, explaining: "After all, he is the one seeking to enforce the arbitration clause. It follows that he carries the burden of establishing that he is entitled to its protections."
B
We conclude the trial court in denying the Petition did not decide the question whether Bouton is an insured under the Policy. Rather, it apparently adopted USAA's argument that the Petition should be denied because the question whether Bouton is an insured is not subject to arbitration under either the Policy's arbitration provision or section 11580.2, subdivision (f), as interpreted by Freeman. Based solely on that reasoning, the court denied the Petition. The record does not support a reasonable inference that the court considered the evidence submitted by Bouton on the question whether he is an insured under the Policy or that it made a finding, based on that evidence, that Bouton is or is not an insured under the Policy. Rather, apparently presuming Bouton could only make that showing by means of an action for declaratory relief, the trial court merely observed: "[A]t this juncture, [Bouton] has failed to establish that he is an insured, and therefore entitled to the protections of [section 11580.2, subdivision (f)]." Therefore, the record shows the trial court did not consider the evidence and decide whether Bouton is, in fact, an insured under the Policy. When the record shows a trial court does not "undertake the factual inquiry necessary to determine" a question, we may not infer on appeal that factual finding. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31 [58 Cal.Rptr.3d 434, 157 P.3d 1029].)
*423 IV
Should the Trial Court Decide Whether Bouton Is an Insured in the Petition Proceedings?
Bouton apparently contends that if, as we have concluded, the trial court did not decide the question whether he is an insured under the Policy, the court should make that determination in the proceedings on the Petition. He argues that he should not be required to file a separate action for declaratory relief to obtain a determination on the preliminary question of whether he is an insured under the Policy with standing to enforce the Policy's UM arbitration provisions. USAA argues that the question whether Bouton is an insured under the Policy cannot be decided in the proceedings on the Petition and can only be decided in a separate action for declaratory relief.
A
Because neither party cites, and we have not found, any reported case that expressly addresses this issue, it appears to be a question of first impression whether a factual question that is preliminary or predicate to contractual or statutory arbitration, including whether Bouton is an insured under the Policy with standing to enforce its arbitration provision, can be decided by a trial court in the proceedings on a petition to compel arbitration or whether that question can only be decided in a separate action for declaratory relief. Furthermore, although in Bouton the California Supreme Court held that a trial court must decide the question whether Bouton is an insured under the Policy, Bouton did not expressly address the question whether that determination can be made by a trial court in proceedings on a petition to compel arbitration or must make that determination only in a separate action for declaratory relief. (Bouton, supra, 43 Cal.4th at p. 1201.)
Absent any reported case on that issue, we reviewed analogous cases involving trial court determinations on other factual questions that are preliminary or predicate to contractual arbitration. For example, in circumstances generally involving contractual arbitration provisions, when a petitioner files a petition to compel arbitration of that arbitration provision, a trial court must make preliminary factual determinations whether (1) there is an arbitration agreement; and (2) the petitioner is a party to that agreement or can otherwise enforce that agreement. (Code Civ. Proc., § 1281.2.) Code of Civil Procedure section 1281.2 authorizes petitions to compel arbitration, providing in part: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that *424 an agreement to arbitrate the controversy exists . . . ." (Italics added.) Therefore, in considering a Code of Civil Procedure section 1281.2 petition to compel arbitration, a trial court must make the preliminary determinations whether there is an agreement to arbitrate and whether the petitioner is a party to that agreement (or can otherwise enforce the agreement). (City of Hope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1369 [126 Cal.Rptr.2d 283] ["[I]n addition to determining whether an arbitration agreement exists, the court needs to determine who has standing to demand arbitration."].)
"As a general matter, only signatories to an arbitration agreement may enforce it. [Citation.]" (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1284 [63 Cal.Rptr.3d 787].) However, there are exceptions to that general rule for nonsignatory persons who are agents or alter egos of a signatory party or intended third party beneficiaries of an arbitration agreement. (See, e.g., Rowe, at pp. 1282-1285 [nonsignatory petitioners could enforce arbitration agreement as alter egos of corporate signatory party]; Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418 [220 Cal.Rptr. 807, 709 P.2d 826] [nonsignatory persons alleged to be agents of signatory party may enforce arbitration agreement]; Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1021 [90 Cal.Rptr.2d 779] (Valley Casework) ["[I]n many cases, nonparties to arbitration agreements are allowed to enforce those agreements where there is sufficient identity of parties."]; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 478 [233 Cal.Rptr. 186] ["[A] nonsignatory beneficiary of an arbitration clause is entitled to require arbitration."]; cf. Smith v. Microskills San Diego L.P. (2007) 153 Cal.App.4th 892, 896-900 [63 Cal.Rptr.3d 608] [nonsignatory petitioner was neither an agent nor an intended third party beneficiary and therefore could not enforce arbitration agreement]; Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586-587, 594 [55 Cal.Rptr.3d 823] [nonsignatory respondent wife was not bound by arbitration agreement because her signatory husband was not her agent].)
In particular, one court stated: "[A] person who can show he is a third party beneficiary of an arbitration agreement may be entitled to enforce that agreement. [Citation.]" (Valley Casework, supra, 76 Cal.App.4th at pp. 1021-1022; see also Civ. Code, § 1559 ["A contract, made expressly for the benefit of a third person, may be enforced by him . . . ."].) Accordingly, in a case where persons "did not prove [to the trial court] they were intended beneficiaries under the [arbitration agreement], there was no error in denying their petitions for arbitration. [Citation.]" (City of Hope v. Bryan Cave, L.L.P., supra, 102 Cal.App.4th at p. 1371.)
"A petition to compel arbitration `"is in essence a suit in equity to compel specific performance of a contract."' [Citations.]" (Rosenthal v. Great Western *425 Fin. Securities Corp. (1996) 14 Cal.4th 394, 411 [58 Cal.Rptr.2d 875, 926 P.2d 1061].) In a petition to compel arbitration "where the person asserting the demand is claiming as a third party beneficiary, a minimal requirement [for pleading] would appear to be an allegation of a controversy between the parties, facts demonstrating the existence of an arbitrable controversy, the existence of the written agreement, and an allegation that the other party has refused to arbitrate." (City of Hope v. Bryan Cave, L.L.P., supra, 102 Cal.App.4th at p. 1369.) The preliminary determination of standing to arbitrate as a party to the arbitration agreement is a question for the trial court. (Ibid.; Valley Casework, supra, 76 Cal.App.4th at p. 1017; American Builder's Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 180 [276 Cal Rptr. 262]; Unimart v. Superior Court (1969) 1 Cal.App.3d 1039, 1047 [82 Cal.Rptr. 249].) "It is settled that the question of whether a nonsignatory to an arbitration agreement may enforce the arbitration provisions is one that must be decided by the court on the basis of the facts found prior to any arbitration going forward. [Citation.]" (Valley Casework, at p. 1020.)
B
Based on our consideration of the above cases in the context of Code of Civil Procedure section 1281.2 petitions to compel arbitration, we conclude the instant case is analogous to those cases in which the trial court makes the preliminary determination whether the petitioner is a party to, or can otherwise enforce, an arbitration agreement. For example, in deciding a petition to compel arbitration, a trial court may decide, based on the evidence before it, that the petitioner is a third party beneficiary to an existing arbitration agreement and therefore may enforce that agreement. That preliminary finding by a trial court on the petitioner's "standing" to compel arbitration of a controversy is one properly made in the proceedings on a petition to compel arbitration.
(4) The issue in this case is not significantly different, if not the same. Pursuant to Bouton, a trial court must decide whether Bouton is an insured under the Policy entitled to enforce the Policy's arbitration provision. Therefore, the trial court, in effect, must determine whether Bouton has standing, as an insured, to enforce the Policy's arbitration provision. Because that preliminary question of standing is so closely connected and is a predicate to the ultimate determination whether to compel arbitration of the Policy's arbitration provision, it is not only logical, but also most efficient, to have the trial court determine that question in the proceedings on the Petition, rather than in a separate action for declaratory relief. Because Bouton initially chose to file a petition to compel arbitration of the Policy's arbitration provision, the trial court in this case should have addressed and determined in the proceedings on the Petition the question whether he is an insured under the Policy entitled *426 to enforce the Policy's arbitration provision. Bouton was not required to file a separate action for declaratory relief to obtain a determination by a trial court on that question of standing to enforce the Policy's arbitration provision.
However, we do not believe the instant question could only be determined in the proceedings on a petition to compel arbitration. For example, had Bouton initially filed a separate action for declaratory relief on the question whether he is an insured under the Policy, we believe the trial court could properly address and decide that question and render such declaratory relief as it deemed appropriate. In that scenario, were the trial court to render declaratory relief finding Bouton to be an insured under the Policy, Bouton could then file a petition to compel arbitration of the Policy's arbitration provision if USAA thereafter nevertheless refused to arbitrate the UM issues. The trial court's declaratory finding that Bouton is an insured would be res judicata on that issue and would expedite the proceedings on the subsequent petition to compel arbitration.
V
Proceedings on Remand
Bouton contends that because the trial court erred in denying the Petition and the undisputed evidence showed he is an insured under the Policy, we should conclude, as a matter of law, that he is an insured under the Policy and therefore on remand direct the trial court to issue a new order granting the Petition. However, the trial court did not expressly consider the evidence submitted by Bouton on, or decide, the question whether Bouton is an insured under the Policy.[4] At most, in denying the Petition based on the nonarbitrability of that question, the court observed, essentially as an aside, that Bouton had failed to establish he is an insured under the Policy. Because the record does not show the trial court considered the evidence submitted (consisting only of Bouton's declaration), we remand the matter for further proceedings on the question whether Bouton is an insured under the Policy entitled to enforce the Policy's arbitration provision. In the course of those further proceedings, the trial court "may conduct whatever additional factual and legal inquiries are necessary to decide" the question whether Bouton is an insured under the Policy. (Wagner Construction Co. v. Pacific Mechanical Corp., supra, 41 Cal.4th at p. 31.) Because we have only now clarified that the trial court must decide in the proceedings on the Petition whether Bouton is an insured under an insurance policy entitled to enforce the policy's arbitration provision, USAA, as well as the trial court, may reasonably have misunderstood the proper scope of the proceedings on a petition to compel *427 arbitration. Accordingly, USAA, relying on a dearth of law showing otherwise, may have reasonably presumed it need not present any evidence in opposing the Petition. Therefore, to grant USAA procedural fairness, the trial court should allow the parties to conduct discovery on the question whether Bouton is an insured under the Policy and to thereafter submit new (as well as previously submitted) evidence on that issue.
(5) Although there apparently are no reported cases expressly on point, the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) applies to "every civil action and special proceeding of a civil nature." (Leake v. Superior Court (2001) 87 Cal.App.4th 675, 682 [104 Cal.Rptr.2d 767], disapproved on another ground in People v. Yartz (2005) 37 Cal.4th 529, 537, fn. 4 [36 Cal.Rptr.3d 328, 123 P.3d 604].) Code of Civil Procedure section 2017.010 provides: "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . ." (Italics added.) Code of Civil Procedure section 2016.020 defines "action" for purposes of the Civil Discovery Act as including "a civil action and a special proceeding of a civil nature." Code of Civil Procedure section 22 defines an "action" as "an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Code of Civil Procedure section 23 provides: "Every other remedy is a special proceeding." Part 3 of the Code of Civil Procedure (Code Civ. Proc., §§ 1063-1822.60) sets forth procedures for special proceedings of a civil nature. Code of Civil Procedure section 1280 et seq., including Code of Civil Procedure section 1281.2, sets forth provisions regarding arbitration.
(6) Because a Code of Civil Procedure section 1281.2 petition to compel arbitration falls within the provisions of the Code of Civil Procedure for "special proceedings of a civil nature," the Civil Discovery Act's provisions apply to Code of Civil Procedure section 1281.2 proceedings. Accordingly, parties to a Code of Civil Procedure section 1281.2 proceeding have discovery rights under the Civil Discovery Act, subject to the relevancy requirement and other provisions limiting the scope and timing of that discovery. (See, e.g., Code Civ. Proc., §§ 2017.010, 2017.020.)
Furthermore, we note that in Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th 394, the California Supreme Court alluded to, and appeared to impliedly recognize, the parties' discovery rights in a Code of Civil Procedure section 1281.2 proceeding, but did not expressly address or decide that issue: "In support of their claim the summary procedure of [Code of Civil Procedure] sections 1281.2 and 1290.2 deprives them of due process, plaintiffs assert the hearing and determination of a petition to compel `could take place early on in the proceedings, without the opportunity for discovery.' Plaintiffs do not, however, assert they actually had insufficient time to *428 conduct discovery before hearing of the petition, or that they sought and were refused discovery of any matter pertinent to the enforceability of the arbitration clause. . . . These circumstances do not establish plaintiffs have been unfairly denied discovery of anything they need to oppose the petition to compel arbitration." (Rosenthal, at pp. 412-413.)
(7) After receipt of any additional evidence submitted by the parties on the question whether Bouton is an insured under the Policy, the trial court should then conduct the summary procedure contemplated by Code of Civil Procedure sections 1281.2 and 1290.2. Code of Civil Procedure section 1290.2 provides: "A petition under this title shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions, except that not less than 10 days' notice of the date set for the hearing on the petition shall be given." In summary proceedings under Code of Civil Procedure sections 1281.2 and 1290.2, "the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. [Citation.]" (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [64 Cal.Rptr.2d 843, 938 P.2d 903].) Although an evidentiary hearing is generally not required in such summary proceedings, an evidentiary hearing may be the better course for a trial court where the documentary evidence submitted by the parties is conflicting and the court could weigh the credibility of witnesses by hearing oral testimony. (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 414.) In the circumstances of Rosenthal, the court stated: "We decline to embrace the broad rule proposed by [appellants]. There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony. Nonetheless, we agree that where . . . the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination. As the trial court here remarked, `it's pretty difficult to weigh credibility without seeing the witnesses.'" (Rosenthal, at p. 414.) Applying that same rationale to this case, it likely will be the better course for the trial court on remand to hear oral testimony of witnesses in the event the affidavits, declarations, and other documentary evidence submitted by the parties are sharply conflicting on the question whether Bouton is an insured under the Policy.[5]
*429 DISPOSITION
The order denying the petition to compel arbitration is reversed and the matter is remanded with directions that the trial court issue a new order vacating that order and thereafter conduct further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
Haller, Acting P. J., and McIntyre, J., concurred.
NOTES
[1] All statutory references are to the Insurance Code unless otherwise specified.
[2] The Policy stated: "[USAA] will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of [bodily injury] sustained by a covered person and caused by an auto accident. [¶] The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle or the underinsured motor vehicle. . . ."
[3] To the same effect, Bouton further argued: "[Bouton] has merely provided the court with a foundation in the moving papers to demonstrate that [Bouton] is a covered insured. [Bouton] again does not request the court make [a] finding on whether or not there is coverage for this matter."
[4] USAA did not submit any evidence in opposition to the Petition.
[5] Because we reverse the trial court's order denying the Petition, we need not address Bouton's alternative contention that the court erred by granting USAA's motion to strike his subsequently filed amended complaint.
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