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https://www.courtlistener.com/api/rest/v3/opinions/2201874/ | 23 Ill.2d 432 (1961)
178 N.E.2d 873
ROY G. WILCOX et al., Appellants,
v.
ILLINOIS COMMERCE COMMISSION et al., Appellees.
No. 36473.
Supreme Court of Illinois.
Opinion filed November 30, 1961.
Modified on motion January 17, 1962.
*433 OLSEN & CANTRILL, of Springfield, and GRAY, McINTIRE, PETERSEN & ACKMAN, of Kankakee, (HAROLD M. OLSEN, and DONALD GRAY, of counsel,) for appellants.
WILLIAM G. CLARK, Attorney General, of Springfield, and ROSS, McGOWAN & O'KEEFE, of Chicago, (CLARENCE H. ROSS, JOSEPH H. MUELLER, JOHN W. McNULTY, EDWIN W. SALE, and EDWARD V. HANRAHAN, of counsel,) for appellees.
Order affirmed.
Mr. JUSTICE SOLFISBURG delivered the opinion of the court:
This is an appeal by plaintiffs from an order of the circuit court of Kankakee County, affirming an order of the Illinois Commerce Commission, entered pursuant to the "Gas Storage Act" of 1951. (Ill. Rev. Stat. 1959, chap. 104, par. 1 et seq.) Under that act a corporation engaged in the distribution, transportation or storage of natural gas which is intended in whole or in part, for ultimate distribution to the public in Illinois, may have the right of eminent domain, provided that such corporation "is regulated or subject to regulation under either the laws of the State of Illinois or the laws of the United States." However, such right of eminent domain for the acquisition of property for the underground storage of gas cannot be exercised until such corporation shall have obtained an order of the Illinois Commerce Commission approving the proposed storage project. The act provides for notification to land owners, whose property rights are affected and requires the Commerce Commission to make certain findings with respect to the project and the order must contain certain restrictions *434 and conditions which reasonably protect private property, the rights of owners of the lands lying within the storage area and any public resources of the State.
Pursuant to the Gas Storage Act, the Natural Gas Storage Company of Illinois, an Illinois corporation, filed an application and obtained an order of the Commerce Commission on May 21, 1952, approving a storage project in the Ironton-Galesville geological formation, in an area at Herscher, in Kankakee County, Illinois. Under that order and by virtue of voluntary grants or easements which the Natural Gas Storage Company had obtained from the land owners, a storage field was developed in the Ironton-Galesville reservoir. Apparently no appeal or objection was taken from that 1952 order. On November 28, 1958, Natural Gas Storage Company filed a supplemental application with the Commerce Commission for the approval of an extension of its storage at Herscher to include the storage of gas in the Mt. Simon formation, a geological stratum lying about 600 feet below the Ironton-Galesville and more than 2,000 feet below the surface of the earth. It is from the order of the Commerce Commission approving the Mt. Simon project that this appeal is taken.
It is the theory of plaintiffs that the Illinois Commerce Commission did not have the jurisdiction to enter said supplemental order; that the order is void and should be set aside; that the supplemental order is not supported by record facts nor are the findings of said order supported by the record; that the storage of gas is a local project not contemplated by the Federal "Natural Gas Storage Act;" and that regulation by a competent administrative agency is a prerequisite to an order of approval under said Illinois Storage Act; that public need for the project is not shown by the record; and that the record fails to disclose a public use.
Prior to the application in 1952 for the Ironton-Galesville *435 reservoir operation, Natural Gas Storage Company had obtained a certificate of public convenience and necessity from the Federal Power Commission to construct facilities and operate as a natural gas company for the transportation, storage and delivery of natural gas under the Natural Gas Act. (15 U.S.C.A. 717.) Similarly, prior to the Mt. Simon project, Natural Gas Storage Company obtained a certificate of public convenience and necessity from the Federal Power Commission authorizing the construction of facilities and development of a storage reservoir in that geological formation. The gas which Natural Gas Storage Company stores is received from interstate pipelines for the account of distributing companies in Illinois and Indiana.
We feel that the interstate character of the gas stored by Natural Gas Storage Company is clear. The movement of natural gas in interstate commerce does not cease its interstate journey merely because it passes into a State where it is finally consumed. (Federal Power Commission v. East Ohio Gas Co. 338 U.S. 464, 467.) While local distribution of interstate gas may be subject to State control, Pennsylvania Gas Co. v. Public Service Commission, 252 U.S. 23, 28, the wholesale distribution of interstate gas has always remained interstate in character. Illinois Natural Gas Co. v. Central Illinois Public Service Co. 314 U.S. 498, 508. The record shows that Natural Gas Storage Company delivers the stored gas to an interstate pipeline and, in that sense, is analogous, to a wholesale distributor. Likewise storing of gas does not change its interstate character. We said in Mississippi River Fuel Corp. v. Hoffman, 4 Ill.2d 468 at page 472: "Appellants devote a considerable part of their argument to a discussion of an attempt which is being made by appellee to create a gas storage field in Illinois in an exhausted gas field in Monroe County. It is enough to say that even if appellee had fully succeeded in this endeavor and if some of the gas sold to its industrial customers had *436 for a time been held in storage in the places mentioned, it would not, in our opinion, detract in any way from the interstate character of the whole transaction."
There is also no substantial question concerning the regulation of Natural Gas Storage Company by the Federal Power Commission under the "laws of the United States." The tariffs of Natural Gas Storage Company are filed with and approved by, the Federal Power Commission; periodic reports are required by that Commission and the detailed certificates of public convenience and necessity issued to Natural Gas Storage Company by the Federal Power Commission clearly demonstrate that it is regulated under the federal law. Consequently, there is no justification for the plaintiffs' contention of lack of jurisdiction in the Illinois Commerce Commission under the Gas Storage Act.
Therefore, we are of the opinion that the jurisdiction of the Illinois Commerce Commission was properly invoked for the approval of the project and the right to exercise eminent domain. No question is raised as to notice either by publication or by registered mail, to the land owners whose property is sought to be condemned.
Turning to the order of the Commerce Commission itself, we are of the opinion that it complies with the requirements of the Gas Storage Act. The Commerce Commission's order not only contains specific findings on each of the statutory items, as well as the restrictive conditions of the statute, but is further supported by a recital of the case and the evidence. An examination of the latter discloses that there was much expert evidence produced as to the feasibility of the Mt. Simon formation for a gas storage project. Plaintiffs' counsel admit the qualifications of Natural Gas Storage Company's experts who testified in favor of the project. No contrary testimony was offered. Neither the Commerce Commission nor the court is required to ignore such expert testimony. It is the function of the Commerce Commission to use its expertise in the evaluation *437 of such expert testimony and we cannot say that the Commission has failed in such appraisal.
The evidence submitted by the expert witnesses was not only subject to the scrutiny of the Commerce Commission but also of the various other State agencies including the Department of Mines and Minerals, Department of Public Health, State Water Survey, and the Oil and Gas Division of the State Geological Survey. The order of the Commerce Commission recognizes the possibility of gas leakage, as mentioned by the Department of Mines and Minerals although the department actually does not expect any to occur, and points out that Natural Gas Storage Company has facilities to detect, observe and control any leakage which may occur in either the Ironton-Galesville or the Mt. Simon formations. The order specifically provides that any increase in leakage should be reported to the Commerce Commission, the State Water Survey and the Department of Mines and Minerals, within twenty-four hours and that if the vent gas gathering system should not be able to control the leakage, Natural Gas Storage Company shall cease to inject gas into the storage dome.
Gas storage fields are no novelties. They exist in more than a dozen states and were "well known" in 1955 when this court delivered its opinion in Mississippi River Fuel Corp. v. Hoffman, 4 Ill.2d 468. Likewise, the public benefit of gas storage fields is also well known. Storing gas in the area of the ultimate market during the warm summer months when the supply of gas from the fields of the south and southwest via the pipelines is plentiful, for use during the winter when peak requirements are needed, enables more of the public to be furnished natural gas than otherwise would be possible. It is also evident that gas storage enables the gas companies to store the gas for more beneficial uses than to be forced to "dump" the gas in the summer time. The evidence shows that 85% of the gas stored by Natural Gas Storage Company will be used by municipalities and *438 public utilities distributing gas for local consumption in areas in the State of Illinois having a total population of 5,500,000. It further shows that storage gas from the Ironton-Galesville reservoir has enabled more than 150,000 residential users to obtain gas space heating. The Commission found that public convenience and necessity would be served by the additional storage project and we cannot say that the Commission's finding is either in error or lacks evidentiary support.
The plaintiffs contend that the Commerce Commission's order finds that Natural Gas Storage Company holds easements for storage of gas in the Mt. Simon reservoir, underlying all the lands except that of 675 acres and that there is no evidence to support this finding. Plaintiffs point out that counsel for Natural Gas Storage Company made objections during the cross-examination of a company witness relating to the construction of any easements on the basis that such matters involve questions of title which the Commerce Commission cannot try. Plaintiffs say that since the entire storage project encompasses approximately 15,000 acres, proper notice was not given all of the land owners against whom the order is effective because the proof of service is limited to the owners of 675 acres.
From the record it appears that the Commerce Commission did not actually find that Natural Gas Storage Company held easements in all but 675 acres. In the seventeen specific findings of the order, no such finding of fact is made. In the preliminary recitals of the order, however, the Commerce Commission states: "Applicant represents that it has heretofore acquired rights, easements and estates in all of the land in said storage area by voluntary grants from the owners thereof, under which grants Applicant has the right to introduce gas into the Mt. Simon formation, except in respect to approximately 675 acres thereof." (Italics supplied.)
In our opinion the Gas Storage Act does not require the *439 Commerce Commission to make any finding as to the extent that Natural Gas Storage Company has deeds or easements to part of the land involved in the storage project. Whether or not the easements the company hold have actually granted rights to the Mt. Simon formation is not before us and we express no opinion on any such questions. Clearly the Commerce Commission does not have the power to determine questions of title and was not called upon to do so. The Gas Storage act states that the order of the Commerce Commission "shall not be operative against any privately owned interest in any tract of land, unless notice of said hearing be sent at least 21 days prior thereto" to the land owner. The purpose of the order of the Commerce Commission is to authorize the right of condemnation, and, as the Act provides, such right cannot be operative except against lands whose owners have been notified. If Natural Gas Storage Company owned all of the land covered by the storage project, no order of the Commerce Commission would be necessary, as no condemnation would be involved. Similarly, if the storage company had easements from all of the land owners no order would be required.
What we say here is confined to the Gas Storage Act and has no relation to the requirements of the Illinois Public Utilities Act or the Natural Gas Act, whichever may be applicable, to obtain a certificate of public convenience and necessity for the initial undertaking. The evidence shows that Natural Gas Storage Company has a certificate from the Federal Power Commission which the Commerce Commission has recognized and accepted. We are not called upon to make a determination of whether Natural Gas Storage Company is or is not subject exclusively to the Natural Gas Act. Jurisdiction under the Gas Storage Act for the issuance of the order here on appeal is conferred if the corporation "is regulated or subject to regulation under either the laws of the State of Illinois or the laws of the United States." Consequently, there is no necessity to make any *440 ruling as to the binding character of the Federal Power Commission's action in regulating Natural Gas Storage Company.
What we have said before disposes of the contention of the plaintiffs that this project is a private matter rather than a public use. There is nothing in the Gas Storage Act which prevents its use because the project is on an "experimental basis." Whether the project should first be tried on an experimental basis is a matter for the discretion of the regulatory agency and it would seem to us that testing such projects as gas storage on a probatory basis is exercising sound discretion.
Finally, the record amply supports the Commerce Commission's findings regarding the protection of private property, water supplies and natural resources. The record of the original proceedings before the Commerce Commission in 1952 was incorporated by reference as part of the record in this supplemental proceeding relating to the Mt. Simon storage project and has been abstracted for the benefit of the court. The detailed testimony on the safety and feasibility of the initial Herscher project, when considered together with the specific testimony on the Mt. Simon project in this supplemental proceeding, provides ample evidence on which the Commerce Commission could make its determination. The Commerce Commission's order specifically provides that the conditions contained in the order entered in the same docket number on May 21, 1952, shall remain in full force and effect and apply to the extended storage project including the Mt. Simon formation. In the original proceedings, evidence was presented by witnesses from the various State agencies and while they did not give further evidence in this supplemental proceeding on the Mt. Simon, they were notified of the proceeding and undoubtedly would have done so if they questioned the undertaking. The evidence offered by Natural Gas Storage Company clearly supports the safety *441 and feasibility of the Mt. Simon project. The protection which has been afforded the public during the past six to seven years of the operation of the Ironton-Galesville storage reservoir will be equally available in guarding the public on the Mt. Simon project.
We are of the opinion that the order of the circuit court of Kankakee County, which upheld the order of the Commerce Commission, was correct and should be affirmed.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265491/ | 163 Cal.App.4th 270 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
KEVIN LEE BARRIOS, Defendant and Appellant.
No. A114150.
Court of Appeals of California, First District, Division One.
May 23, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*272 Karen W. Riley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Violet M. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MARCHIANO, P. J.
In separate proceedings, juries convicted defendant Kevin Lee Barrios of threatening a public official (Pen. Code, § 76, subd. (a)) and misdemeanor battery on a cohabitant (Pen. Code, § 243, subd. (e)(1)). *273 The trial court sentenced defendant to four years in prison for the threat and a concurrent six months for the domestic violence.
With regard to his conviction for threatening a public official, defendant primarily contends he could not be convicted unless he actually intended to carry out the threat, and the People failed to prove such an intent. With regard to his domestic violence conviction, defendant primarily contends the court erred by admitting the preliminary hearing testimony of the victim, who was unavailable for trial. As we explain below, we reject defendant's contentions and affirm both convictions.
I. THE CONVICTION FOR THREATENING A PUBLIC OFFICIAL
A. Facts
Defendant's conviction arises from his threatening his own defense attorney during his first trial on the domestic violence charge.
Attorney Marc Tirrell represented appellant in his first trial for inflicting corporal injury on a cohabitant. Tirrell worked for the Solano County Conflict Defender's Office. He had 26 years' experience as a criminal defense attorney. He had dealt with thousands of clients who had not always been pleasant to him. As he put it, "[y]ou must develop a thick skin to work in the Public Defender's Conflict Defender's Office. Because for whatever reason, you are often not liked by almost anyone. The clients, the clients' families, the public, sometimes the judges."[1] On one prior occasion, a defendant had threatened him to the extent that he feared for his safety, and he withdrew from the case.
On the morning of June 9, 2005, before the start of the second day of trial, Tirrell met with defendant in a holding cell in the courthouse. The room was only four feet by six or eight feet, and contained a table and two chairs that were not bolted down. Defendant was wearing belly chains attached to handcuffs, which limited the range of motion of his handsbut he had room to move his hands within the restraints. His legs were not restrained.
As Tirrell and defendant talked about how the trial was progressing, defendant became very upset with Tirrell. Defendant's facial expression changed, as did the volume and tone of his voice, and his body language. He became "a little bit flushed." Defendant was upset about the questions Tirrell had asked his former girlfriend, the victim, who testified the day before.
*274 Defendant told Tirrell "that when he got out of custody, he was going to kick my ass." At that point, Tirrell was "a little concerned," but defendant had made similar comments to Tirrell before. Tirrell described these comments as "general physical threats," but the pattern in the past was that defendant would become angry, make a threat, and then calm down when he and Tirrell continued to talk about the case. Thus, Tirrell was not concerned for his safety.
This time defendant did not follow the prior pattern. As Tirrell continued continued to talk to him, he stood up, his face became "extremely red . . . sort of contorted," his body was "very tensed," and "he looked at me and said that he was going to shoot me in the head with a bullet."
Tirrell felt "very threatened. I did feel that this was real, and I felt that it was serious." Tirrell reached that conclusion because the threat "was very specific. The way he said it; how he looked at me; his body language; his tone of voice; the color of his face; the fact that he stood up at that point." Tirrell felt "in fear for my safety." Tirrell felt that defendant would carry out the threat when he was released from custody.
Tirrell told defendant that their conversation was over, and got up and left the holding cell. He went up to Deputy Chase, a custodial officer who was outside, and told him he wanted to make a police report. Immediately after he left the room, Tirrell was "a little upset. Even being thick-skinned, I felt that the threat was real. And I felt that my safety might be in jeopardy."
On cross-examination by defense counsel, Tirrell admitted that he knew that defendant had attention deficit hyperactivity disorder (ADHD), that ADHD causes people to be easily distracted and suffer from poor impulse control, and that he had observed defendant having poor impulse control. On redirect, Tirrell testified he did not feel safer because he knew defendant had ADHD. On the contrary, knowing defendant had poor impulse control "caused me to have more concern when he made that specific threat to kill me."
Officer Chase testified that when Tirrell came out of the holding cell, he looked "scared." "His eyes were kind of wide open. . . . I would describe it as a deer in the headlights . . . he was extremely nervous." Chase went into the holding cell, and noticed that defendant was aggravated and angry, and "was mumbling things like, dumptruck, piece of shit. Stuff like that."
As a result of the threat, the domestic violence trial ended in a mistrial.
*275 B. Discussion
Penal Code section 76[2] criminalizes certain threats against various elected and appointed public officials and their staffs and immediate families. Subdivision (a) of section 76 sets forth the elements of the offense. As here pertinent, subdivision (a) provides as follows: "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . county public defender . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense . . . ."
Subdivision (c) of section 76 defines various terms. It defines "apparent ability to carry out that threat" as including "the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date." (§ 76, subd. (c)(1).)
Of more significance to the present case is the statute's definition of "threat." A threat "means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety. . . ." (§ 76, subd. (c)(5), italics added.)
The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 2650, which tracks the language of section 76. As here pertinent, the court instructed the jury as follows: "The defendant is charged with threatening a public official. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant willingly threatened to kill or threatened to cause serious bodily harm to a conflict defender; two, when the defendant acted, he intended that his statement be taken as a threat; three, when the defendant acted, he knew that the person he threatened was a conflict defender; four, when the defendant acted, he had the apparent ability to carry out the threat; and five, the person threatened reasonably feared for his safety. [¶] . . . [¶] Someone who intends that the statement be understood as a threat does not have to actually intend to carry out the threat. . . ."
1. CALCRIM No. 2650
Defendant contends that CALCRIM No. 2650 is incorrect because it tells the jury that the defendant need not have the intent to carry out the threat, only the intent that the statement be taken as a threat. He argues that the *276 language of section 76, subdivision (c)(5) (section 76(c)(5)), which we italicized above, requires an intent to carry out the threat in order to convict under the statute. According to defendant, the language "made with the intent . . . to carry out the threat" requires the People to prove not only that he intended his comments and conduct in the holding cell to be taken as a threat, but also that he intended to carry out the threat.
The People respond by relying primarily on two cases which state that section 76 does not require an intent to carry out the threat: People v. Gudger (1994) 29 Cal.App.4th 310 [34 Cal.Rptr.2d 510] (Gudger) and People v. Craig (1998) 65 Cal.App.4th 1082 [83 Cal.Rptr.2d 1 (Craig). These cases are not helpful as authority on the precise question before us.
Gudger observed that "there is no requirement in section 76 of specific intent to execute the threat. . . ." (Gudger, supra, 29 Cal.App.4th at p. 320.) Gudger went on to hold that the intent that a statement be taken as a threat, coupled with the apparent ability to carry it out, satisfied First Amendment concerns of criminalizing speech. (Gudger, supra, at pp. 320-321; see discussion id. at pp. 316-320.) But Gudger was decided on October 18, 1994, before the effective date of the amendment to section 76 that added subdivision (c)(5). (Stats. 1994, ch. 820, § 1, p. 4071.) Thus, Gudger did not interpret the statutory language now before us.
The relevant issue in Craig was whether the threat had to be "present," as well as "immediate." (Craig, supra, 65 Cal.App.4th at pp. 1087-1092.) As part of its analysis leading to its conclusion that the threat need only be "immediate," the Craig court quoted a passage from Gudger which included the observation that section 76 requires no specific intent to carry out the threat. (Craig, supra, at pp. 1090-1091.) But Craig did not directly address or interpret the language of section 76(c)(5).
Thus, it appears we write on a clean slate. We disagree with defendant because we do not interpret section 76(c)(5) to impose a second intent requirement, but only a single one: the "specific intent that the statement is to be taken as a threat." That intent, coupled with the "apparent ability to carry out that threat by any means," is sufficient to constitute a violation of section 76.
"The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law." (O'Kane v. Irvine (1996) 47 Cal.App.4th 207, 211 [54 Cal.Rptr.2d 549].) "To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) *277 Other courts refer to the "plain and commonsense meaning" of statutory language. (People v. Cole (2006) 38 Cal.4th 964, 975 [44 Cal.Rptr.3d 261, 135 P.3d 669] (Cole); see People v. Murphy (2001) 25 Cal.4th 136, 142 [105 Cal.Rptr.2d 387, 19 P.3d 1129].)
"We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes' nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory frame work as a whole." (Cole, supra, 38 Cal.4th at p. 975.)
Section 76, subdivision (a) lists the two elements of the crime of threatening a public official: "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . county public defender . . . [1] with the specific intent that the statement is to be taken as a threat, and [2] the apparent ability to carry out that threat by any means, is guilty of a public offense. . . ."
The focus of section 76 is not merely the intent of the person making the threat, but the effect of the threat on the victim. The actual emotional state of the victim is at issue. As section 76(c)(5) defines "threat," the threat has to be made in such a way "so as to cause the person who is the target of the threat to reasonably fear for his or her safety . . . ." Thus, the People must prove that the victim did in fact reasonably fear for his or her safety. (See People v. Andrews (1999) 75 Cal.App.4th 1173, 1177-1178 [89 Cal.Rptr.2d 683] (Andrews).)
Thus, the essence of a violation of section 76 is the making of a statement with the intent that it be taken as a threat, along with the apparent ability to carry out the threat, resulting in actual reasonable fear on the part of the victim. We see no reasonable way to interpret the statute to require an actual intent to carry out the threat. It is the fear that is instilled that is paramount. Indeed, the defendant need not have the actual ability to carry out the threat, only the apparent abilityand "apparent ability" includes "the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date." (§ 76, subd. (c)(1).) It is unreasonable to posit the need to prove an actual intent to execute the threat when the ability to do so can be attenuated by months, even years, before the release of the incarcerated threatener.
Our interpretation is supported by People v. Carron (1995) 37 Cal.App.4th 1230 [44 Cal.Rptr.2d 328] (Carron), a case interpreting the stalking statute, *278 section 646.9. The legislative history of section 76 shows that section 76(c)(5) was modeled after section 646.9, former subdivision (e). (See Andrews, supra, 75 Cal.App.4th at p. 1178 & fn. 3.) As it read in 1994, when section 76(c)(5) was enacted, section 646.9, former subdivision (e) defined "credible threat" in almost exactly the same language as used in section 76(c)(5). (Ibid.; see Carron, supra, at p. 1238.)
Carron rejected the identical argument now raised by defendant, i.e., that the language "made with the intent . . . to carry out the threat" requires the People to prove an intent to carry out the threat. The court noted that the stalking statute began by spelling out the elements of the offense, which included making a credible threat with the intent to place the victim in reasonable fear of death or great bodily injury. (Carron, supra, 37 Cal.App.4th at p. 1238 [discussing § 646.9, subd. (a)].) The court concluded that, when read in the context of the entire statute, the "intent" referred to in the former subdivision (e) threat definition was the "intent" set forth as the element of the crimei.e., the intent to cause reasonable fear. (Carron, supra, at p. 1239.)
In the context of section 76, then, the language defining threat as a statement "made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety" would refer to the intent to make a threat, coupled with an apparent ability to carry it out, such as to cause reasonable fear. As the Carron court noted, it would be illogical to read into this language a requirement of an intent to carry out the threat, because such an intent "has no logical connection with `to cause the person [who is the target of the threat] to reasonably fear for his or her safety.'" (Carron, supra, 37 Cal.App.4th at p. 1239.) In other words, the harm punished by section 76, the victim's fear, comes from the intent to make the threat and the apparent ability to carry it outand not from any actual intent to do so.[3]
We conclude that CALCRIM No. 2650 correctly states the law. There is no error.
2. Miscellaneous Issues Regarding the Threat to Tirrell[*]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*279 3. The Evidence of ADHD
Defendant contends that his defense counsel at the threat trial, William Pendergast, introduced evidence of ADHD without defendant's consent. Defendant argues that he had a right to keep the evidence out because it involved his medical privacy. But the decisions on which he relies are distinguishable. And defense counsel is "captain of the ship" and may decide whether to present certain evidence as a matter of trial strategy. (See People v. Murphy (1972) 8 Cal.3d 349, 366 [105 Cal.Rptr. 138, 503 P.2d 594]; People v. Turner (1992) 7 Cal.App.4th 1214, 1220-1221 [10 Cal.Rptr.2d 358].)[4] Defendant's ADHD was a reasonable, viable component of his defense.
Defendant also contends that the trial judge inadequately responded to a note from the jury about ADHD. The jury sent the court a note asking for a definition of ADHD and whether defendant had been diagnosed with that condition. The judge wrote "no answer" on the note in response to both points. Defendant contends that under section 1138 the trial judge was obligated to respond to the jury's note orally in open court. But after the jury left the courtroom and began to deliberate, the judge announced his intended procedure in the event of a note from the jurythat he would confer with counsel and write an answer on the note. Defense counsel agreed on the record to this procedure. Thus, any error is waived.
The trial judge's use of a written communication to the jury, rather than an oral one, was not an abuse of discretion. (See People v. Box (2000) 23 Cal.4th 1153, 1213-1214 [99 Cal.Rptr.2d 69, 5 P.3d 130].) And even assuming the trial judge had a duty to define ADHD and respond to the jury's question about diagnosis, any error would be harmless. (See People v. Beardslee (1991) 53 Cal.3d 68, 97 [279 Cal.Rptr. 276, 806 P.2d 1311].) Tirrell testified that he knew defendant had ADHD and testified about the effect of ADHD on behavior, specifically defendant's.
II. THE CONVICTION FOR DOMESTIC VIOLENCE[*]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*280 III. DISPOSITION
The judgments of conviction are affirmed.
Stein, J., and Margulies, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.B.2. and II.
[1] Tirrell was quick to note that the trial judge in this case "is the exception."
[2] Subsequent statutory citations are to the Penal Code unless otherwise indicated.
[3] Defendant notes that the stalking statute was amended in 1995 to make explicit the lack of a requirement to intend to carry out the threat. (Stats. 1995, ch. 438, § 2, p. 3416.) He contends the Legislature's failure to make a similar amendment to section 76 is telling. We disagree. Section 76 is clear as it is written on the issue of the lack of intent to carry out the threat.
[*] See footnote, ante, page 270.
[4] Defendant has filed an in propria persona habeas corpus petition in which he appears to argue that Pendergast's tactical decision to admit the ADHD evidence was tantamount to entering a plea of guilty without defendant's permission, and thus amounted to the ineffective assistance of counsel. The petition is without merit. By a separate order filed this date, we deny the habeas corpus petition.
[*] See footnote, ante, page 270. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265498/ | 163 Cal.App.4th 1020 (2008)
GEORGE W. SHUFELT III, Plaintiff and Appellant,
v.
JAMES HALL et al., Defendants and Respondents.
No. D050975.
Court of Appeals of California, Fourth District, Division One.
June 5, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1021 George W. Shufelt III, in pro per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Chris A. Knudsen and John T. McGlothlin, Deputy Attorneys General, for Defendants and Respondents James Hall and Garrett Beaumont.
John J. Sansone, County Counsel, and Morris G. Hill, Deputy County Counsel, for Defendant and Respondent Per Hellstrom.
OPINION
McCONNELL, P. J.
George W. Shufelt III appeals a judgment dismissing his civil declaratory relief action, which challenges a finding in a criminal case that his prior Utah conviction qualified as a prior serious felony and strike conviction. The appeal was filed one day after the 60-day jurisdictional time limit for filing a notice of appeal. Shufelt contends his appeal was timely under the prison-delivery rule and that his declaratory relief was improperly dismissed. We hold his notice of appeal was timely, but affirm the judgment.
FACTS[1]
In January 2002, a jury convicted Shufelt of a number of criminal offenses and found he had a prior conviction in Utah for automobile homicide. Shufelt *1022 disputed whether the Utah conviction qualified as a serious felony and strike in California, primarily on the basis the Utah statute did not contain all the elements required for the California offense of vehicular manslaughter. The court found the Utah conviction qualified as a serious felony and strike.
Shufelt appealed his conviction. He contended the prior Utah conviction was improperly used as a prior serious felony and strike. We affirmed the judgment. Shufelt then filed a petition for a writ of habeas corpus, again challenging the use of the Utah conviction and specifically complaining there was no showing he personally inflicted great bodily injury on a person other than an accomplice. We denied his petition.
In June 2005, Shufelt filed this civil action for declaratory relief. Again, he challenges the use of his prior Utah conviction, complaining the prosecutor failed to prove that it involved either the use of a deadly weapon or the personal infliction of great bodily injury on a person other than an accomplice. He named as defendants the warden of the prison where he was incarcerated, James Hall; the deputy district attorney who prosecuted his criminal case, Per Hellstrom; and the deputy attorney general who represented the People on the appeal of the criminal case, Garrett Beaumont.
The court entered a judgment against Shufelt, inter alia, explaining that declaratory relief was not a proper remedy, the proper means for adjudicating Shufelt's claims were by direct appeal or by a petition for habeas corpus, the appellate court had already ruled on Shufelt's claims, and Beaumont was immune from liability under Government Code section 821.6.
DISCUSSION
I.
Timeliness of Appeal
Shufelt's notice of appeal was filed in the San Diego County Superior Court on May 30, 2007, one day late.[2] However, he provided his notice of appeal to prison authorities before the due date for its filing.[3] He contends the *1023 "[p]rison-[d]elivery" rule, which deems a notice of appeal filed as of the date an incarcerated pro se litigant delivers the documents to prison authorities, applies not only to criminal appeals but also to civil appeals filed by an incarcerated in propria persona litigant.[4] We agree.
In Houston v. Lack (1988) 487 U.S. 266, 272, 276 [101 L.Ed.2d 245, 108 S.Ct. 2379], the United States Supreme Court held that a pro se prisoner's appeal from a denial of a writ of habeas corpus, which was required to be "filed" by the district court clerk within 30 days of entry of the judgment order or decree, was timely filed when it was delivered by the petitioner to prison authorities within the applicable period for forwarding to the court clerk. The Supreme Court rejected the respondent's argument that previous cases applying the prison-delivery rule to appeals in criminal cases provided little support for the petitioner in this case because "a petition for habeas corpus is a civil action...." (Id. at p. 272.) The Supreme Court noted the relevant statute for the filing of civil appeals did not define when a notice of appeal has been filed, did not designate the person with whom it must be filed, or indicate it would be inappropriate to apply the prison-delivery rule. (Ibid.)[5] As to the Federal Rules of Appellate Procedure (28 U.S.C.),[6] the court noted they required the notice of appeal to be filed with the district court clerk, but concluded it was a "question ... of timing, not destination: whether the moment of `filing' occurs when the notice is delivered to the prison authorities or at some later juncture in its processing." (487 U.S. at p. 273.) The court concluded the rules were "not dispositive on this point." (Ibid.)
The court noted policy reasons for applying a prison-delivery rule: "[T]he moment at which pro se prisoners necessarily lose control over and contact *1024 with their notices of appeal is at delivery to prison authorities, not receipt by the clerk. Thus, whereas the general rule has been justified on the ground that a civil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing, [citation], a pro se prisoner has no choice but to hand his notice over to prison authorities for forwarding to the court clerk. Further, the rejection of the mailbox rule in other contexts has been based in part on concerns that it would increase disputes and uncertainty over when a filing occurred and that it would put all the evidence about the date of filing in the hands of one party. [Citation.] These administrative concerns lead to the opposite conclusion here. The pro se prisoner does not anonymously drop his notice of appeal in a public mailboxhe hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date." (Houston v. Lack, supra, 487 U.S. at p. 275, italics omitted.)
The Supreme Court also noted that delays in mailing the notice of appeal could be due to the prison's failure to act promptly, and concluded that a pro se prisoner should not be bound by the prison's failure. (Houston v. Lack, supra, 487 U.S. at p. 276.)
In In re Jordan (1992) 4 Cal.4th 116 [13 Cal.Rptr.2d 878, 840 P.2d 983] (Jordan), the California Supreme Court held the prison-delivery rule remained viable in California after statutory amendments changed the period for filing a notice of appeal from 10 days to 60 days. At issue in Jordan was a notice of appeal from a criminal conviction. The respondent argued the prison-delivery rule was "anachronistic, contending it was derived from case law abrogated by the 1972 amendment to" the California Rule of Court governing notices of appeal and that the current filing provision allowed "ample time for the filing of a notice of appeal." (Id. at p. 122.) The California Supreme Court found the extension of the filing period from 10 days to 60 days did not eliminate the basis for the prison-delivery rule. (Id. at p. 128.) The Jordan court relied, in part, on the following language from Houston v. Lack: "`Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the ... deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped `filed' or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, *1025 knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them.' ([Houston v. Lack, supra, 487 U.S.] at pp. 270-271....)" (Jordan, supra, 4 Cal.4th at pp. 128-129, italics omitted.)
The California Supreme Court also found the prison-delivery rule advances judicial efficiency by adopting a bright-line rule. (Jordan, supra, 4 Cal.4th at p. 130.)
More recently, the appellate court in Moore v. Twomey (2004) 120 Cal.App.4th 910 [16 Cal.Rptr.3d 163] (Moore), applied the prison-delivery rule to the filing of a civil complaint by a pro se prisoner. The Moore court was persuaded by the unique disadvantages suffered by incarcerated pro se litigants as the United States Supreme Court recognized in Houston and the California Supreme Court in Jordan. (Moore, at pp. 915-916.) While acknowledging that no California state case had applied the prison-delivery rule to the filing of civil complaints, the Moore court observed that it appeared "that every federal circuit court of appeals to consider the issue has held that the rule articulated in Houston applies to civil complaint filings." (Moore, at p. 916 and cases cited therein.) The Moore court concluded the prison delivery rule should apply since the same concerns were present in its case as were present in Houston and Jordan: "The parties in those cases, like plaintiff here, were incarcerated pro se litigants who, unlike other litigants, could not monitor the process of the mails to ensure that their pleadings were timely filed and, by definition, had no attorney to monitor the process for them. As a result, all likely would have been unaware of delays in filing and unable to rectify any problems even if they were apprised of them. They could not have delivered copies of their documents to the clerk by hand and did not have access to express mail services. They had to rely on correctional authorities, who might have been motivated to delay the filing (although nothing in the record before us indicates that happened in plaintiff's case), and if the pleading were delayed, they would have had no way to determine the cause and possibly obtain evidence to support a finding of excusable neglect." (Moore, supra, 120 Cal.App.4th at p. 917.)
The reasoning of the Houston, Jordan and Moore cases applies equally to notices of appeal in civil cases by pro se incarcerated litigants. Additionally, it would be anomalous to apply the prison-delivery rule, as recognized by the Moore case, to all filings in a civil case except the notice of appeal.
It is true, as respondents point out, that the California Rules of Court contain a specific provision recognizing the prison-delivery rule for a criminal *1026 and not for a civil appeal. (See Cal. Rules of Court, rules 8.100(a)(1) (civil appeals), formerly 1(a)(1), 8.308, formerly 30.1 (criminal appeals).) For the filing of a civil notice of appeal, the California Rules of Court provide: "To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellant's attorney must sign the notice." (Rule 8.100(a)(1).) Under California Rules of Court, rule 8.25(b)(1) (formerly rule 40.1(b)), "[a] document is deemed filed on the date the clerk receives it."
This distinction in the California Rules of Court, however, does not persuade us the prison-delivery rule should not apply to the filing of a civil appeal by an incarcerated pro se litigant. Nothing in the language of the rule precludes application of the prison-delivery rule. The California Supreme Court in Jordan applied the prison-delivery rule despite the lack of any language in the rules of court specifically authorizing the prison-delivery rule. The United States Supreme Court in Houston applied the prison-delivery rule to a similar provision in an appeal from the denial of a petition for habeas corpus, a matter that it considered to be technically civil in nature. The Moore court applied the prison-delivery rule to filings in civil cases despite the lack of any express authorization in the statutes or rules.
(1) Respondents assert that the California courts have adopted a brightline rule that allows no excuses for late-filed civil appeals. In support, they cite Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670 [125 Cal.Rptr. 757, 542 P.2d 1349] and Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1488 [39 Cal.Rptr.2d 802]. Both of these cases involved ordinary civil litigants and issues as to when the period for filing a notice of appeal began to run when a motion for a new trial had been made. Neither case discussed the application of the prison-delivery rule to a pro se incarcerated litigant. "`It is axiomatic that cases are not authority for propositions not considered.'" (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [53 Cal.Rptr.2d 81, 916 P.2d 476].) "`The holding of a decision is limited by the facts of the case being decided, notwithstanding the use of overly broad language by the court in stating the issue before it or its holding or in its reasoning.'" (Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 340 [57 Cal.Rptr.3d 1].)
(2) We conclude the prison-delivery doctrine applies to appeals filed by pro se incarcerated litigants.
*1027 II.
Declaratory Relief[*]
..................................................................
DISPOSITION
The judgment is affirmed.
Haller, J., and O'Rourke, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II.
[1] Shufelt submitted a request for judicial notice filed on April 15, 2008. We grant his request to take judicial notice of Utah law and the briefs in the prior appeal. Otherwise, his request for judicial notice is denied.
[2] Shufelt's notice of appeal was filed on May 30, 2007, 62 days after the notice of entry of judgment was filed on March 29, 2007. The 60th day following the notice of entry of judgment was Monday, May 28, 2007, however, since that was the Memorial Day holiday, the notice of appeal would have been timely if filed the following day, May 29, 2007.
[3] In his brief, Shufelt states he delivered the notice of appeal to prison authorities on May 24, 2007. The Attorney General, who is representing defendants James Hall and Garrett Beaumont, has submitted a letter attaching a mail log from the prison where Shufelt was imprisoned showing prison authorities mailed a letter from Shufelt to the San Diego County Superior Court on May 25, 2007, and stating the envelope containing the Attorney General's office service copy of the notice of appeal bears a posting date of May 25, 2007, and contains a proof of service dated May 24, 2007. The proof of service attached to the notice of appeal in the record contains a declaration of service by mail from the prison where Shufelt was incarcerated stating the notice of appeal was mailed on May 24, 2007.
[4] This issue is currently pending before the California Supreme Court in Silverbrand v. County of Los Angeles, review granted August 16, 2006, S143929.
[5] The applicable statute, 28 United States Code section 2107, provided: "[N]o appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree."
[6] As stated by the Supreme Court in Houston v. Lack, supra, 487 U.S. at page 278, the Federal Rules of Appellate Procedure (28 U.S.C.) provided in rule 3(a): "`An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4'...." Federal Rules of Appellate Procedure (28 U.S.C), rule 4(a)(1) provided: "`In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from ...'...." (Ibid.)
[*] See footnote, ante, page 1020. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265506/ | 163 Cal.App.4th 896 (2008)
MATT WHITEHEAD et al., Plaintiffs and Respondents,
v.
DOUGLAS HABIG et al., Defendants and Appellants.
No. G037991.
Court of Appeals of California, Fourth District, Division Three.
May 28, 2008.
*898 Douglas B. Habig, in pro. per., for Defendants and Appellants.
The Reis Law Firm and Sean P. Reis for Plaintiffs and Respondents.
OPINION
MOORE, J.
Douglas and Gayla Habig appeal from a judgment following summary adjudication and their failure to appear at trial, resulting in a default judgment. They argue that summary adjudication should not have been granted and that they were denied due process with respect to the notice of trial. We find no error and affirm.
I
FACTS
Matt and Mary Whitehead (the Whiteheads) own a house in Anaheim (the property). In September 2001, they entered into a lease and purchase agreement (the agreement) with Douglas and Gayla Habig (the Habigs). The agreement used a standard form lease, under which the Habigs would pay $1,850 per month. An addendum provided that the lease would last for two years, and further stated: "With respect to the option to purchase lessee would put up as good faith money for the option two things; (1) Five Thousand, ($5000) in cash, which would apply toward the purchase price, but which would be forfeited if lessee fails to buy within the two year period; and (2) improvements to the house in the form of new quality carpeting and painting the outside of the house, which they estimate to cost at least $5000.00. These improvements will not be applied toward the purchase price of the house. Lessee and lessor will guarantee price of $289,000 when they close on the purchase of the house." The option was drafted by Douglas Habig (Habig), who is an attorney.
On October 7, 2003, the Habigs sent the Whiteheads a letter stating the Habigs' intent to exercise the option to purchase the property pursuant to the agreement. The letter did not include the tender of the purchase price, nor did it identify the mechanism by which the purchase price would be paid. A second letter from Habig followed, on October 20, stating that the property's heating and air conditioning system showed the presence of mold and other allergens. The letter asserted that the Whiteheads were responsible for remediating these issues, and concluded, "Obviously, we cannot proceed with *899 the sale of the house until you have remediated this serious situation, since the house is presently not in a marketable condition."
On October 28, the Whiteheads' attorney, Jonathan C. Cavett, sent the Habigs a letter that stated that to properly exercise the option, the Habigs were required to buy the property by the end of the lease term on October 31, 2003. The letter stated that Habig had contacted Matt Whitehead and stated that given the mold issue, Habig did not intend to close the purchase by October 31. Cavett stated: "The mold issue is a separate issue having no bearing on your obligation to timely purchase the subject property."
Habig responded on October 30, stating that he had opened escrow on October 21 and was "ready, willing and able to purchase the house at the present time." He further stated that he had obtained financing.[1] The letter went on to say, however, that the Whiteheads had failed in their obligation to "warrant fitness for use and merchantability and to disclose conditions of the property through inspections and certification. Since the Whiteheads have failed to perform these inspections and provide such certifications, they cannot proceed to sale until they have met this obligation. In addition, the Whiteheads['] obligation to warrant fitness for use of the property as a residential home requires them to remediate conditions that violate such warranties."
Habig identified the presence of mold as one such condition, stating "this condition is one that renders the house both unfit for its intended use and unmerchantable.... California law requires that the Whiteheads remediate any such unfitness and unmerchantability of the property." After detailing his concerns about the condition, he concluded: "Therefore, I look forward to the Whiteheads undertaking their obligation to inspect the property, remediate the toxic mold and provide us with the necessary certifications that the house complies with applicable warranties of fitness and merchantability. When they have performed their obligations, Susan and I are prepared, as we are now, to tender the purchase price and close on the house." Habig reiterated this sentiment in a subsequent letter on October 31.
Thus, October 31 passed without the tender of the purchase price. Subsequently, the Habigs refused to vacate the property or pay further rent. On July 6, 2004, the Whiteheads filed a complaint against the Habigs for breach of contract, declaratory relief, ejectment, and quiet title. The Habigs responded, answering and filing a cross-complaint for specific performance, breach of contract, breach of implied warranties, and negligence.
*900 In April 2005, the Whiteheads filed a motion for summary judgment, or in the alternative, summary adjudication of issues in the complaint and cross-complaint. The Habigs filed an opposition but did not file a separate statement, instead filing an "objection" to the Whiteheads separate statement.
On July 21, the trial court granted summary adjudication in the Whiteheads' favor on their causes of action for declaratory relief and quiet title, and on the cross-complaint's claims for specific performance and breach of contract. Because the Whiteheads' remaining claims, breach of contract and ejectment, required adjudication of damages, the court denied summary adjudication.[2]
The trial court scheduled a settlement conference and trial for early 2006. The Habigs failed to appear at the settlement conference, and the court issued a minute order taking it off calendar but keeping the trial date as scheduled for February 6. On the day scheduled for trial, Habig appeared and filed a notice of stay based on the Habigs' filing of a petition for bankruptcy the prior Friday, February 3. The trial court took the trial off calendar and set a bankruptcy review hearing for May 12.
According to the Whiteheads, the bankruptcy case was dismissed due to the Habigs' failure to timely file documents. On April 25, the trial court granted the Whiteheads' ex parte motion to set the case for trial, and the trial was set for May 30. On May 17, the Whiteheads sent the Habigs a notice of ruling, by first class mail, to the property address.
The Habigs failed to appear at trial on May 30. The court dismissed the cross-complaint and held a default prove-up on the remaining claims in the complaint. The court entered judgment in the Whiteheads' favor for $50,050, and on October 18, final judgment for $50,050 plus interest and costs was entered.[3] The Habigs appeal.
II
DISCUSSION
Summary Judgment
The trial court granted the Whiteheads' motion for summary adjudication based both on the substance of the motion and the Habigs' failure to file the *901 required separate statement of facts in opposition. "We generally review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.] The trial court's decision to grant a motion for summary judgment because the opposing party failed to comply with the requirements for a separate statement, however, is reviewed for an abuse of discretion. [Citations.]" (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208 [35 Cal.Rptr.3d 411].) "In applying the abuse of discretion standard of review, it is not the role of the appellate court to substitute its own view as to the proper decision. [Citation.] The trial court's discretion, however, `is not unlimited and must be "`exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" [Citations.]' [Citation.] Moreover, we carefully examine a trial court order finally resolving a lawsuit without permitting the case to proceed to a trial on the merits. [Citations.]" (Ibid.)
(1) A separate statement is a required part of opposing a summary judgment motion. Code of Civil Procedure section 437c, subdivision (b)(3) states: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion."
California Rules of Court, rule 3.1350(d)[4] further explains the requirement: "The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers." Rule 3.1350(e) makes it clear that the opposition must also include a separate statement.
*902 The separate statement is not merely a technical requirement, it is an indispensible part of the summary judgment or adjudication process. "Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for ... summary judgment to determine quickly and efficiently whether material facts are disputed." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 [282 Cal.Rptr. 368].)
The document the Habigs claim is an adequate "separate statement" is captioned "Objections to Separate Statement of Undisputed Facts." In its entirety, it states: "Defendants and Cross-Plaintiffs, Douglas and Gayla Habig, hereby object to and contest the following portions of the Separate Statement of Undisputed Material Facts submitted by Plaintiffs and Cross-Defendants, Matt and Mary Whitehead: [¶] 1. Article II, Issue 1, Sections 4 and 5. [¶] 2. Article II, Issue 2, Sections 4 and 5." If this document was intended as an evidentiary objection, it fails because it does not include any argument or citation to authority. If it was intended as an opposing separate statement, it fails because it does not include citations to any evidence. The Habigs claim this document was sufficient because this was not a complex case and their "objection" was therefore sufficient to place the court on notice that material facts were disputed. They instead blame the court for failure to review their pleadings and evidence.
The Habigs miss the point entirely. The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) Their attempt to shift the blame for their failure to comply to the court, without any case authority demonstrating that the court abused its discretion, is both incorrect and misplaced.
The Habigs further characterize their "objection" as a "good faith effort" to inform the court of disputed material facts. Yet we query why such an "effort" should be deemed sufficient when the Habigs were certainly given notice of their failure to file a proper separate statement. The Whiteheads, along with their reply brief, filed a reply separate statement, which stated: "The Habigs failed to file a Separate Statement of Undisputed and Disputed Facts. The Habigs' failure to comply with this requirement is grounds for granting the Whiteheads' motion, as none of the facts set forth in the motion are disputed." The Habigs took the time to file a sur-reply to the Whiteheads' reply brief, and could have used that opportunity to remedy their deficiency.
(2) The Habigs chose not to comply with the statutes governing summary adjudication, and we find no abuse of discretion on the court's part. An abuse *903 of discretion is an action which is arbitrary or capricious, or without basis in reason. (Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893 [238 Cal.Rptr. 642].) The Habigs' conclusory arguments fail to show any such action on the part of the trial court, and summary adjudication, therefore, was properly granted.
Due Process
The Habigs argue that they were denied due process because of improper notice of the trial date, resulting in a default judgment. The Habigs, however, never filed or served the change of address required by rule 2.200, and thus the Whiteheads continued to serve them at the property, their address of record.
The Habigs first argue that the notice of the trial date was inadequate. On April 25, 2006, the Whiteheads moved ex parte to set a trial date. The court granted the motion, setting the trial date for May 30, and ordered the Whiteheads to give notice. The notice of ruling was dated May 17. The Habigs claim this was "dilatory" and would have given them only 10 days' notice of the trial date.
We agree that notice should have been swift, given the circumstances, and perhaps this argument would have been persuasive in the trial court, resulting in a continuance. It does not, however, excuse the Habigs from appearing at trial at all, and it does not provide grounds to reverse the judgment. (The case the Habigs cite on this point, Bricker v. Superior Court (2005) 133 Cal.App.4th 634 [35 Cal.Rptr.3d 7], does not stand for the proposition cited, as it has nothing to do with the adequacy of notice of pending proceedings.)
(3) With respect to the service address, the Habigs claim that the Whiteheads were well aware that they had been evicted from the property following summary judgment. They also claim the Whiteheads had constructive notice of their new mailing address (a post office box) because it was on documents associated with bankruptcy proceedings. Nonetheless, the fact remains that the Habigs never filed a change of address with the court. Further, mail sent to a former address is deemed properly served for up to one year after the change of address because postal regulations require the postal service to forward first class mail at no charge during that period. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-510 [33 Cal.Rptr.2d 572].) The court did not begin receiving returned mail from the property address until November. Given these facts, we find no denial of due process.
*904 III
DISPOSITION
The judgment is affirmed. The Whiteheads are entitled to their costs on appeal.
Rylaarsdam, Acting P. J., and O'Leary, J., concurred.
NOTES
[1] The Habigs received a letter on October 29, stating they were approved for financing of $289,000, conditional on the property appraising for at least $390,000. The appraisal, however, was dated November 5, at which time the property appraised for $417,000.
[2] On August 10, the Whiteheads dismissed their ejectment claim and filed a separate unlawful detainer action, eventually regaining possession.
[3] The Habigs filed a second bankruptcy petition, of which the Whiteheads received notice after the May 30 trial. According to the Whiteheads, the bankruptcy court later granted them relief from stay nunc pro tunc to May 30. Thus, the trial did not violate the bankruptcy stay.
[4] References to a rule or rules are to the California Rules of Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265367/ | 422 Pa. Superior Ct. 224 (1993)
619 A.2d 327
COMMONWEALTH of Pennsylvania
v.
Thomas A. FOX, Jr. Appellant.
Superior Court of Pennsylvania.
Argued December 2, 1992.
Filed January 14, 1993.
*228 Michael J. Anthony, Wilkes-Barre, for appellant.
Scott Gartley, Asst. Dist. Atty., Wilkes-Barre for Com., appellee.
Before McEWEN, CIRILLO and HOFFMAN, JJ.
CIRILLO, Judge:
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Luzerne County. We affirm.
Appellant Thomas A. Fox, Jr. was charged with criminal homicide and, following a jury trial, was convicted of murder in the first degree. Fox, along with co-defendant John Jerome Masi, shot Ronald Hasiuk after the three men had engaged in a night of drinking and drug taking.
*229 At the preliminary hearing the Commonwealth presented testimony of the only eyewitness, co-defendant Masi, who testified on direct examination that he had shot the victim in self-defense, and it was Fox who shot Hasiuk with a small rifle several times. Counsel for Fox then attempted to cross-examine Masi on numerous matters relating to the incident. The assistant district attorney made several objections to defense counsel's questions, many of which were sustained by the district justice.
After the preliminary hearing, the case was bound over for court and Fox filed a petition for a writ of habeas corpus. The petition alleged that Fox had been denied his right of confrontation and cross-examination of Masi. After oral argument, the petition was denied.
Following the trial and guilty verdict, Fox filed post-trial motions, which were denied. A sentence of life imprisonment was imposed and this timely appeal followed. Fox raises the following issues for our consideration:
(1) Must Fox receive a new trial where the trial court permitted an accomplice's plea agreement which contained a reference to the accomplice's agreement to testify "truthfully" at subsequent prosecutions to go out with the jury for their consideration?
(2) Must Fox be granted a new trial where the attorney for the Commonwealth in his opening remarks to the jury referred to Fox as a "liar?"
(3) Was Fox denied his right of cross-examination of the principal witness against him at a preliminary hearing by the district justice presiding at said preliminary hearing?
(4) Must Fox be granted a new trial where Fox was foreclosed from cross-examining the sole eyewitness against him at trial concerning the eyewitness's expected sentence under the provisions of the Pennsylvania Sentencing Code where such witness had agreed to cooperate with the Commonwealth in its case against Fox?
(5) Did the trial court err in permitting various Commonwealth witnesses to testify concerning statements made by the principal witness against Fox which contained statements *230 allegedly made by Fox where the Commonwealth did not prove either directly or inferentially that a conspiracy had existed or continued to exist to kill the victim?
(6) Did the trial court err in permitting testimony concerning the exact locations of the bullets and shell casings found at the crime scene where defense counsel had repeatedly requested this information prior to trial, it was material to the defense, the defense was told that such information did not exist, and where this information was, accordingly, unable to be presented to Fox's retained expert for analysis?
(7) Was the guilty verdict contrary to the weight and sufficiency of the evidence?
Initially, Fox argues that it was error to allow Masi's plea agreement to go out with the jury, contending that this deprived him of his rights to due process and a fair trial. Specifically, Fox asserts that he was prejudiced because the agreement contained a statement that Masi "agree[d] to cooperate with and testify truthfully on behalf of the Commonwealth in all subsequent prosecutions."
Pennsylvania Rule of Criminal Procedure 1114 provides that the jury may take with it such exhibits as the trial judge deems proper. Thus, whether an exhibit should be allowed to go out with the jury during deliberation is within the discretion of the trial judge, and such decision will not be overturned absent an abuse of discretion. Commonwealth v. Bricker, 525 Pa. 362, 378, 581 A.2d 147, 155 (1990); Commonwealth v. Thomas, 372 Pa.Super. 349, 361, 539 A.2d 829, 836 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988); Commonwealth v. Sparks, 351 Pa.Super. 320, 327-28, 505 A.2d 1002, 1006 (1986).
In support of his argument, Fox relies on Commonwealth v. Bricker, supra, where the court determined that the trial court erred when it permitted plea agreements of two Commonwealth witnesses to be sent out with the jury during deliberations. In reaching this decision, the Bricker court stated:
*231 It is beyond question that permitting the prosecution to send these documents out with the jury during deliberations impermissibly bolstered the credibility of [the Commonwealth's witnesses]. In so bolstering their credibility, the court violated the defendant's right to a fair trial.
Id. 525 Pa. at 377, 581 A.2d at 154.
While we do not disagree with Fox's presentation of the Bricker case, we find that Bricker does not control in the instant appeal, as the facts here can be distinguished. Co-defendant Masi's plea agreement was introduced by the defense during Masi's cross-examination at trial and was initially marked as a defense exhibit. Furthermore, the following question was posed to Masi by defense counsel:
[I]sn't it true that part of the plea agreement provides that the defendant will agree to cooperate with and testify truthfully on behalf of the Commonwealth in all subsequent prosecutions?
Masi responded in the affirmative. As set forth in the trial transcript, the defense exhibit was highlighted in yellow marker. On re-direct, the plea agreement was marked as a Commonwealth exhibit for purposes of refuting defense's cross-examination of Masi. Importantly, following the close of testimony, defense counsel raised no objection to sending out with the jury the "unhighlighted" copy of the plea agreement. Thus, Fox may not now claim that he was prejudiced by evidence which he initially introduced and to which he posed no objection when the exhibit was moved into evidence and later requested to go out with the jury.[1]
In an analogous situation, this court in Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979) found no abuse of discretion where the trial court admitted into evidence a prosecution witness' written statement which was *232 thereafter sent out with the jury. In its conclusion the court stated:
In the case at bar there was no abuse of discretion. Since the appellant himself placed the evidence in question before the jury, it is difficult to understand how he sustained prejudice by the jury's removal of the statement to their deliberation chambers.
Id. at 195, 411 A.2d at 247.
Accordingly, we find that there was no harm in allowing the plea agreement to be sent out with the jury during deliberations. We conclude, therefore, that there has been no abuse of discretion. Bricker, supra; Thomas, supra.
Fox next argues that he should be granted a new trial because the Commonwealth, during opening statements, referred to Fox as a "liar." After an immediate objection by defense counsel, the trial court responded with the following cautionary instruction:
[T]he jury will base its own hearing of the witnesses and determining credibility in this case and I don't think any of the witnesses should be classified as liars.
Our standard of review for an allegation of prosecutorial misconduct has recently been set forth in Commonwealth v. Scarfo, 416 Pa.Super. 329, 407-08, 611 A.2d 242, 281 (1992) as follows:
Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. Rather, the focus is on what, if any, effects the comments had on the jury. A new trial is required when the effect of the District Attorney comments "would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Further, this decision is for the trial court to make. Our role is to determine solely whether the trial court abused its discretion.
Id. at 407-08, 611 A.2d at 281 (quoting Commonwealth v. Faulkner, 528 Pa. 57, 77, 595 A.2d 28, 39 (1991), cert. denied *233 ___ U.S. ___, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992) (citations omitted)).
In regard to the opening statements of a prosecutor, such statements "should be limited to a statement of the facts which he intends to prove, and the legitimate inferences therefrom." Commonwealth v. Duffey, 519 Pa. 348, 361-62, 548 A.2d 1178, 1184 (1978). Although the particular remark in question in the instant case was not directly related to the facts which the prosecutor intended to prove, the ultimate question in this matter is whether the jury was prejudiced to the point where the prosecution's comment instilled a fixed bias and hostility toward Fox. Faulkner; supra; Scarfo, supra. It is our finding that the trial court's cautionary instruction relieved, in the jury's minds, any fixed bias or hostility. Even assuming that no curative instruction had been given, we find that this remark, standing alone, fails to rise to the level of prejudice which would render the jury incapable of exercising objective judgment. Accordingly, a new trial is not warranted on this issue.
In Fox's third issue, he contends that a new trial is warranted because he was denied his "right" of cross-examination of Masi, the sole eye-witness, at the preliminary hearing. Specifically, Fox alleges that the district justice erred in sustaining the objections of the Commonwealth to defense counsel's questions relating to the reliability, credibility and powers of observation of co-defendant Masi. Fox further asserts that he was not afforded a full and fair opportunity to cross-examine Masi with respect to Masi's motive for testifying nor with respect to Masi's prior inconsistent statements, thereby leaving Fox with no valuable impeachment material for trial.
In support of his position, Fox relies primarily on Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991), and Pennsylvania Rule of Criminal Procedure 141 for the proposition that a criminal defendant has a right to confront and cross-examine the witnesses against him or her at a preliminary hearing. While the Buchanan plurality suggests a right to confront and cross-examine *234 at a preliminary hearing, citing the United States and Pennsylvania constitutions in support thereof, the precise holding in Buchanan is that hearsay testimony alone is insufficient to establish a prima facie case at a preliminary hearing. Hence, Fox's reliance on Buchanan is misplaced. Fox was not precluded from cross-examining Masi at the preliminary hearing. To the contrary, defense counsel questioned Masi at length. The fact that several of Fox's questions during cross were objected to and such objections were sustained did not deny Fox his right of cross-examination at the preliminary hearing stage.
Furthermore, it is well-settled that the preliminary hearing serves a limited function. "The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime." Commonwealth v. Tyler, 402 Pa.Super. 429, 433, 587 A.2d 326, 328 (1991), appeal denied, ___ Pa. ___, 617 A.2d 1263 (1992) (quoting Commonwealth v. Wodjak, 502 Pa. 359, 466 A.2d 991 (1983)); see also Pa.R.Crim.P. 141(d). Since the Commonwealth merely bears the burden of establishing a prima facie case against the defendant, credibility is not an issue at at preliminary hearing. See Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (removing credibility as an issue at a preliminary hearing and limiting defense actions to negating the existence of a prima facie case conforms to the fact that a preliminary hearing is a much less searching exploration into the merits of the case); Tyler 402 Pa.Super. at 433, 587 A.2d at 328 (credibility is not an issue at a preliminary hearing); Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 262, 566 A.2d 246, 248 (1989) (magistrate is precluded from considering the credibility of a witness who is called upon to testify during the preliminary hearing).
In light of the clear purpose of a preliminary hearing, Fox's claim of denial of effective cross-examination is without merit. Not only was Fox afforded a full and fair opportunity to cross-examine Masi during the preliminary hearing, the cross-examination *235 lasted several hours and covers approximately one hundred and fifty-four pages of transcript. Many of the questions asked by defense counsel to which objections were made and sustained had already been asked and answered, were not relevant, or dealt with issues of credibility. Accordingly, we find that Fox was not denied his opportunity to cross-examine co-defendant Masi.
In his fourth issue, Fox contends that he was foreclosed from cross-examining Masi at trial concerning Masi's expected sentence, following Masi's guilty plea to third degree murder. It is well-settled that the scope and manner of cross-examination are within the sound discretion of the trial judge whose decisions will not be overturned absent an abuse of discretion. Tyler 402 Pa.Super. at 435, 587 A.2d at 329; Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989), appeal denied, 525 Pa. 617, 577 A.2d 889 (1990). It is equally well-settled that, at trial, the right to cross-examination is essential to the protections granted under the Sixth Amendment Confrontation Clause of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. See Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989); Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987).
Fox correctly points out, and the appellate courts have held:
[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. . . . The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. . . .
*236 Hill 523 Pa. at 273, 566 A.2d at 253 (quoting Commonwealth v. Evans, 511 Pa. 214, 216, 512 A.2d 626, 627 (1986)); see also Commonwealth v. Eicher, 413 Pa.Super. 235, 258, 605 A.2d 337, 349 (1992); Commonwealth v. Culmer, 413 Pa.Super. 203, 210, 604 A.2d 1090, 1094 (1992); Commonwealth v. Cobb, 409 Pa.Super. 168, 170, 597 A.2d 714, 715 (1991), appeal denied, 530 Pa. 664, 610 A.2d 44 (1992).
Bearing in mind the reasoning enunciated in the line of cases set forth above, in the present situation it is clear from the record that Fox's counsel was given the latitude necessary to cross-examine Masi in regard to Masi's plea agreement with the Commonwealth. As reflected in the trial transcript, there is little doubt that the dialogue exchanged between defense counsel and Masi made it apparent to the jury that Masi pleaded guilty to third-degree murder and, consequently, received a greatly reduced sentence. Fox was also permitted to inquire about Masi's understanding of the sentence he would receive, the sentencing guidelines, and the effect of his cooperation. Throughout this portion of Masi's cross-examination the Commonwealth objected to the line of questioning several times; the court, however, allowed the questions and overruled nearly every objection. In light of these facts we find that Fox was given sufficient opportunity to at least raise a doubt in the minds of the jury as to whether Masi was biased. Evans, supra; Hill, supra. A new trial, therefore, is not warranted on these grounds.
Fox next argues that it was error for the court to permit Commonwealth witnesses to testify concerning remarks that Masi said were made by Fox. Initially, we find that the record belies Fox's description of the testimony at issue. The Commonwealth's witnesses' testimony to which Fox refers[2] makes no mention of actual statements made by Fox to Masi. Rather, these witnesses related conversations that they had with Masi directly, or conversations that they had with Fox directly. Regardless of this error, we find that *237 the testimony in question was properly admitted under the co-conspirator's exception to the hearsay rule.
Specifically, Fox contends in his post-trial motions that the Commonwealth had not proved beyond a reasonable doubt that a conspiracy had existed between Masi and himself. The co-conspirator's exception to the hearsay rule
allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is . . . other evidence of the existence of a conspiracy. The co-conspirator exception applies even where no party has been formally charged with conspiracy.
Commonwealth v. Cherpes, 360 Pa.Super. 246, 258, 520 A.2d 439, 445 (1987), appeal denied, 515 Pa. 612, 530 A.2d 866 (1987) (quoting Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981) (citations omitted)); see also Commonwealth v. Zdrale, 530 Pa. 313, 316, 608 A.2d 1037, 1039 (1992). Hence, for such testimony to be admissible, the Commonwealth must show the following: (1) a conspiracy existed between the declarant and the party against whom the evidence is offered; (2) the statement sought to be admitted was made during the course of the conspiracy; and (3) there is other evidence to prove that a conspiracy existed. Cherpes 360 Pa.Super. at 257, 520 A.2d at 445. The trial court may admit such statements "upon only slight evidence of the conspiracy." Id. The Commonwealth need not prove the conspiracy beyond a reasonable doubt; rather, it must prove the conspiracy by merely a fair preponderance of the evidence. Id. Furthermore, for purposes of this rule, the conspiracy may be inferentially established. Commonwealth v. Chester, 526 Pa. 578, 592-95, 587 A.2d 1367, 1374-75 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991); Dreibelbis 493 Pa. at 473, 426 A.2d at 1115; Cherpes 360 Pa.Super. at 257, 520 A.2d at 445.
Here, the Commonwealth has met its burden of establishing the existence of a conspiracy by a fair preponderance of the evidence. In light of the testimony heard at trial, the physical evidence and all reasonable inferences drawn *238 therefrom, we find ample support for this conclusion.[3] Consequently, the trial court properly admitted the testimony in question.
In Fox's sixth issue, he avers that the trial court erred in permitting testimony concerning the exact locations of the bullets and shell casings found at the crime scene, where this information had allegedly not been made available to the defense before trial. In this assertion, Fox essentially contends that the Commonwealth failed to comply with Rule 305(B)(1) of the Pennsylvania Rules of Criminal Procedure, which provides that in all court cases, by request of the defendant, the Commonwealth shall disclose the following (provided they are material to the case):
* * * * * *
(e) results or reports of scientific tests, expert opinions and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints or other tangible evidence . . .
The purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial; trial by ambush is contrary to the spirit and letter of those rules. Commonwealth v. Moose, 529 Pa. 218, 235, 602 A.2d 1265, 1274 (1992). This court has also acknowledged that, generally, the purpose of discovery is to "accord a defendant the opportunity to discover evidence which he did not know existed, as well as to seek possession of evidence of which he was aware." Commonwealth v. Hussmann, 335 Pa.Super. 603, 609, 485 A.2d 58, 61 (1984). It is clear from the record that adequate disclosure was provided by the Commonwealth; nonetheless, Fox claims that the Commonwealth's failure to disclose the exact location of each particular shell frustrated the efforts of *239 the defense's expert in forming an adequate opinion in regard to these items. Fox cites Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983) in support of his argument. We find that Thiel can be easily distinguished, however, in that it involved evidence which the Commonwealth had failed to disclose and which defendant was unaware of until trial.
Fox was made aware of the existence of the shells, was provided with a map of the crime scene and was informed by the Commonwealth that all four shells were found in a particular area. Hence, we have little difficulty in concluding that the Commonwealth's failure to reveal the specific location of each shell does not undermine the discovery rules, especially where defense counsel was aware of the existence of the shells and was adequately prepared for trial. Hussmann, supra; Moose, supra.
In his final issue on appeal, Fox claims that the verdict was contrary to the weight and/or sufficiency of the evidence. Specifically, Fox asserts in his brief that Masi was an unreliable witness and that there was insufficient physical evidence to sustain the verdict. Where issues of credibility and weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); McElrath v. Commonwealth, 405 Pa.Super. 431, 443, 592 A.2d 740, 745 (1991). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one's sense of justice. McElrath at 443, 592 A.2d at 745. Given this stringent standard, along with the facts and testimony of the instant case, we do not find the evidence here so shocking to one's sense of justice so as to warrant a new trial. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witness testimony. Commonwealth v. Pirela, 398 Pa.Super. 76, 83, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838, 841 (1982). Hence, we find no need to disturb the conclusions of the trial court on these grounds.
*240 In reviewing a challenge to the sufficiency of the evidence, this court must ask whether the evidence, and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 527 Pa. 511, 512, 594 A.2d 300, 301 (1991); see also Commonwealth v. Glover, 399 Pa.Super. 610, 615, 582 A.2d 1111, 1114 (1990). To prove murder of the first degree, the Commonwealth must demonstrate; (1) that a human being has been unlawfully killed; (2) that the person accused did the killing; and (3) that the killing was done with malice aforethought, as well as with premeditation and deliberation. Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991); 18 Pa.C.S.A. § 2502(a). The testimony and physical evidence introduced at trial indicate that the elements of first degree murder have been established beyond a reasonable doubt. The trial court's findings will not be disturbed.
Based on the foregoing arguments, we conclude that Fox's claims have no merit and, accordingly, the trial court's decision is affirmed.
Judgment of sentence affirmed.
NOTES
[1] As a general rule, in order to preserve an issue for appeal, defendant must make a timely objection at trial. See Commonwealth v. Blassingale, 398 Pa.Super. 379, 396, 581 A.2d 183, 191 (1990); Commonwealth v. Perdue, 387 Pa.Super. 473, 485, 564 A.2d 489, 495 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990); Commonwealth v. McDermott, 377 Pa.Super. 623, 641, 547 A.2d 1236, 1245 (188); Commonwealth v. Redel, 335 Pa.Super. 354, 361, 484 A.2d 171, 175 (1984).
[2] The witnesses to which Fox refers to in his brief are as follows: Rita Burginia, an acquaintance of Masi's; Stanley Jezewski, a Pennsylvania state police trooper; and Cindy Masi, Masi's wife.
[3] The record reflects that the three men in question, Fox, Masi, and the victim, entered a wooded area around midnight to "shoot at tree branches." The two guns that were taken along both belonged to Masi; one in his possession and the other in Fox's possession. The victim was shot six times. Masi and Fox left the scene together in Fox's car. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265370/ | 619 A.2d 1105 (1993)
Thomas W. BAKALAKIS, p.p.a. Thomas A. Bakalakis et al.
v.
WOMEN & INFANTS' HOSPITAL et al.
No. 91-681-M.P.
Supreme Court of Rhode Island.
February 4, 1993.
*1106 Elizabeth Mulvey, Lubin & Meyer, P.C., Boston, MA, George Pliakas, Providence, for plaintiff.
Ruth DiMeglio, Carroll, Kelly & Murphy, Alan R. Tate, Tate & Elias, Providence, for defendant.
OPINION
SHEA, Justice.
This matter is before the Supreme Court pursuant to defendants' petition for a writ of certiorari to review an order of the Superior Court denying their motion to dismiss. We quash the order below.
On December 16, 1987, plaintiffs, Thomas W. Bakalakis, p.p.a., Thomas A. Bakalakis, Thomas A. Bakalakis, and Sandra Bakalakis, filed suit in the Superior Court against defendants Women & Infants' Hospital and Brian May, M.D. The suit against May was later dismissed with prejudice. The plaintiffs alleged negligent medical care and treatment at the time of the birth of Thomas W. Bakalakis on December 18, 1984.
On December 1, 1988, and February 2, 1989, Robert Barone, M.D. and Alvin Gendreau, M.D., were deposed by plaintiffs. Both doctors had provided Mrs. Bakalakis with prenatal care and had participated, in different capacities, in her labor and delivery. Two other physicians were deposed, Kenneth Elkington, M.D., on December 7, 1989, and Mitchell Bellucci, M.D., on September 28, 1990.
Thereafter, on November 13, 1990, a motion was filed to amend the complaint that would add Doctors Barone and Gendreau as defendants in the action. That motion was never heard, but a second motion to amend the complaint was heard and granted on April 19, 1991. The newly added defendants, Barone and Gendreau, promptly filed motions to dismiss on the grounds that these claims against them were time barred by G.L. 1956 (1969 Reenactment) § 9-1-14.1, as amended by P.L. 1984, ch. 236, § 1, that service of process upon them was insufficient; and that plaintiffs had failed to use due diligence in investigating their claim so that they were now prevented from raising it. After hearing, their motion to dismiss was denied, and defendants thereafter petitioned this court for a writ of certiorari to review the order of the trial court.
The main issue before us is whether § 9-14.1(a) allows a minor to amend a pending complaint to include new defendants more than three years after occurrence of the incident that gave rise to the cause of action.
Section 9-1-14.1 is the statute of limitations for medical-mal-practice actions. That statute at the time of the incident in question read:
"Notwithstanding the provisions of section 9-1-14 of the general laws, an action for medical malpractice shall be commenced within three (3) years from the time of the occurrence of the incident *1107 which gave rise to the action, providing, however, that:
(a) One who is under disability by reason of age, mental incompetence or otherwise, and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring said action within three (3) years from the removal of said disability.
(b) In respect to those injuries due to acts of medical malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of medical malpractice should, in the exercise of reasonable diligence, have been discovered." Section 9-1-14.1, as amended by P.L. 1984, ch. 236, § 1.
The threshold issue before us, however, has not been addressed by this court previously. It is whether the general disability tolling statute, § 9-1-19, affects or in effect supersedes the provisions of § 9-1-14.1(a). The provisions of § 9-1-19 read in pertinent part:
"If any person at the time any such cause of action shall accrue to him shall be within the age of twenty-one (21) years, or of unsound mind, or imprisoned, or beyond the limits of the United States, such person may bring the same, within such time as hereinbefore limited, after such impediment is removed."
A recent decision of this court, in a case presenting a factually analogous situation, will have a bearing on our considerations. In Bishop v. Jaworski, 524 A.2d 1102 (R.I. 1987), we addressed the issue of whether the statute of limitations for bringing an action against the state is tolled during a child's minority. Section 9-1-25 sets out the time periods in which plaintiffs must bring actions against the state. Unlike § 9-1-14.1(a), it does not address the effects of any disabilities on these limitations. In Bishop we held:
"Section 9-1-19 provides for tolling of statutes of limitation in general. Since the Legislature is presumed to know the law, and §§ 9-1-25 and 9-1-19 are contained within the same title and chapter of the General Laws, it seems likely that the Legislature intended § 9-1-19 to toll the § 9-1-25 statute of limitations. If the Legislature did not intend § 9-1-19 to affect § 9-1-25 it could have easily provided otherwise."
It follows then that in the situation before us, since the Legislature has not been silent, it did not intend § 9-1-19 to supersede § 9-1-14.1. Subsection (a) of § 9-1-14.1 reads in part, "one who is under disability by reason of age, mental incompetence or otherwise and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring said action within three (3) years from the removal of said disability." (Emphasis added.) The plain language suggests that if no action on behalf of one who is under a disability is brought within three years of the occurrence of the incident, then the statute of limitations is tolled until the maximum of three years after the disability is removed. It would also follow, then, that if an action is brought within three years of the occurrence of the incident, the minor does not benefit from the tolling of the provision once the disability is removed. It appears to us that if the Legislature did not intend to limit a minor's ability to initiate medical malpractice actions, subsection (a) of § 9-1-14.1 would be unnecessary.
It is plaintiffs' position that the plain meaning of § 9-1-14.1(a) does not preclude this action because no other action has been filed against these particular defendants. They maintain that Doctors Barone and Gendreau can be sued up until three years after the removal of Thomas' disability, which would be the year 2005. We are persuaded, however, that the language in the statute is plain and compelling, and, to hold otherwise would bring about the unwelcome situation where the action brought within the three-year period would be merely preliminary to the main event when the minor brought suit on his or her own behalf.
*1108 Because our resolution of the statute of limitations issue is dispositive of this appeal, we need not reach the reasonable-diligence issue raised by the plaintiffs.
For these reasons the petition for a writ of certiorari is granted, the motions to dismiss should have been granted, and the order denying the motions to dismiss is quashed. The papers of the case are remanded to the Superior Court with our decision endorsed thereon.
FAY, C.J., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365877/ | 305 S.E.2d 201 (1983)
Arthur M. HOCH
v.
Herbert C. YOUNG.
No. 8210SC937.
Court of Appeals of North Carolina.
August 2, 1983.
*203 Harrell & Titus by Bernard A. Harrell and Richard C. Titus, Raleigh, for plaintiff-appellee.
Poyner, Geraghty, Hartsfield & Townsend by David W. Long and Cecil W. Harrison, Jr., Raleigh, for defendant-appellant.
WEBB, Judge.
The question presented for review on this appeal is whether the trial court, at the first trial of this matter, erred in failing to grant defendant's motions for a directed verdict and judgment notwithstanding the verdict.
Defendant offers the following two grounds in support of his contention that the court erred in denying his motions: (1) plaintiff's own evidence established that his cause of action for conversion was barred by the three-year statute of limitations set out in G.S. 1-52(4), and (2) plaintiff failed to offer evidence as to the fair market value of the converted stock as of the date of the conversion. We do not agree and find no error in the court's denial of defendant's motions.
Defendant argues the statute of limitations began to run when plaintiff learned in either late 1976 or early 1977 that defendant had possession of plaintiff's stock certificate endorsed in blank. If the statute of limitations had been triggered at that point, then plaintiff's action would be barred because it was not filed until over three years later on 9 October 1980. Plaintiff maintains the limitation period did not begin until September 1980, the date he made demand for the return of his stock certificate. We agree with plaintiff that there was sufficient evidence for the jury to find that the statute of limitations did not begin to run until September 1980.
There is no evidence that when defendant informed plaintiff that he had possession of the certificate, that he indicated any intention to retain the same against plaintiff's rights or to convert it to his own use. Rather, the conversation between the parties served only to notify plaintiff of the location of his certificate subsequent to the imprisonment of Mr. Hudson. Defendant testified that he "received Mr. Hoch's stock certificate in the mail. There was nothing with the certificate and I do not know who mailed it ...." Since it appears defendant came into possession of the certificate lawfully, the following applies:
"Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of the tort. When demand is made, and absolute, unqualified refusal to surrender, which puts the plaintiff to the necessity of force or a lawsuit to recover his own property, is of course a conversion."
Prosser, The Law of Torts 4th, § 15 at pp. 89-90 (1971).
Similarly, Dr. Robert E. Lee in his book North Carolina Law of Personal Property, (1968) stated as follows at page 60:
"The mere receipt of the possession of a chattel from a third person with an intent *204 to acquire a proprietary interest therein constitutes a conversion without a demand for its return by the owner. The fact that the person in possession is without knowledge that the third person had no power to transfer a proprietary interest is immaterial. A subsequent refusal to surrender the chattel on demand may constitute a separate act of conversion. The owner may elect to treat the defendant as a converter either from the receipt of the chattel or from his refusal to deliver it on demand ...."
We hold that the jury could find that the defendant converted the stock on the date of the refusal to return the certificate.
With respect to defendant's contention that plaintiff failed to offer evidence at the first trial as to the fair market value of the converted stock at the time of conversion, we note that although there was no direct testimony as to the fair market value of the shares themselves, there was substantial evidence as to the many factors affecting valuation, such as the fair market value of the corporation's assets, its income, expenses, dividends, and the value of plaintiff's interest. Plaintiff introduced into evidence the balance sheets of the corporation, its income tax returns for the years 1970 through 1979, and its complete ledger book, which contained information about all the income, salaries, dividends, expenses, loans, and obligations of the Swim Club as well as all other matters relating to its financial status.
Plaintiff testified as to the cost of construction of the Swim Club, loans made to it, the size of its initial membership, and its financial success. Plaintiff and his expert witness both gave their opinions as to the fair market value of the corporation's assets prior to construction of a second pool in 1975. Defendant admitted at trial that in an earlier statement he had estimated the assets of the Swim Club to be at least $120,000.00. He further testified that prior to plaintiff's resignation in June 1974, plaintiff's interest was worth $35,000.00.
In our opinion, there was sufficient evidence of the value of the stock to overcome the motion to dismiss.
No error.
ARNOLD and BRASWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365848/ | 279 S.C. 183 (1983)
305 S.E.2d 71
JOHN D. HOLLINGSWORTH ON WHEELS, INC., Appellant-Respondent,
v.
ARKON CORPORATION, Respondent-Appellant.
21937
Supreme Court of South Carolina.
June 10, 1983.
*184 Wesley M. Walker, James H. Watson, O. Jack Taylor, Jr., and Mark R. Holmes, all of Leatherwood, Walker, Todd & Mann, Greenville, for appellant-respondent.
David L. Freeman and Carl F. Muller, both of Wyche, Burgess, Freeman & Parham, Greenville, for respondent-appellant.
June 10, 1983.
LEWIS, Chief Justice:
This action arose out of a contract between John D. Hollingsworth On Wheels, Inc., and Arkon Corporation, under which Hollingsworth agreed to sell certain machinery for use by Arkon in its manufacture of nonwoven products. The machinery involved in the contract was never delivered by Hollingsworth. As a result of differences between the parties over the cause for the failure to deliver, Hollingsworth brought this action for rescission of the contract; and Arkon counterclaimed for incidental and consequential damages resulting from an alleged breach of the contract by Hollingsworth.
Based upon voluminous evidence, much of which is subject to a protective order by reason of commercial security, the Master, to whom all issues were referred for decision, concluded that Hollingsworth was not entitled to rescission but instead had itself breached the contract, entitling Arkon to damages in the amount of $1,918,043.00, for which judgment was entered against Hollingsworth. Hollingsworth has appealed from the judgment in its entirety. Arkon cross-appeals, contending that the damage award was inadequate.
Direct appeal to this Court from the report of the Master was provided by agreement of the parties and order of the circuit court under Section 14-11-90, South Carolina Code of Laws (1982 cum. supp.). We affirm the judgment with reduction in the amount of the award.
We find that the Master correctly determined all issues pertaining to the contract but awarded damages that were not established with the reasonable certainty required by the law of this State. A previous appeal in this case, Hollingsworth v. Arkon, 273 S.C. 461, 257 S.E. (2d) 165, established that Arkon has waived its right to jury trial by electing to assert its *185 counterclaim in response to Hollingsworth's equitable action. Consistent with that opinion, we have applied the scope of review appropriate for equitable matters tried by a judge alone. Townes Associates Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E. (2d) 773. Accordingly we have reduced the award based upon our view of the preponderance of the evidence.
In May 1976, the parties entered into an "Agreement for Sale of Machinery" by the terms of which appellant Hollingsworth would sell to respondent Arkon certain pieces of machinery used in the manufacture of nonwoven textiles. Specifically at issue is the promise to deliver and install two 4-meter cards, equipment used to disentangle batches of synthetic fiber and prepare them for later stages of processing. Evidently, carding equipment of this width represented an innovation for the nonwoven textile industry. Delivery of the cards was scheduled for November 1977, approximately eighteen months after signing of the agreement. In the interim, Hollingsworth was to lease 2.2-meter cards at a nominal fee for overlapping periods of time.
In addition to delivery and installation of the equipment just described, Hollingsworth expressly assumed responsibility "for all changes or modifications to the equipment furnished which may be necessary to achieve the quality and production as set forth in the standards and specifications hereto attached and incorporated by reference as a part hereof." The standards and specifications were attached to the agreement and explicitly set out requirements of speed, tensile strength ratio, appearance (by sample) and weight to be measured by a "finished" product or nonwoven web.
On its face the contract reveals no ambiguities. The record on this appeal exceeds four thousand pages and contains a dozen or more drafts of the agreement carefully negotiated over a period of approximately four months. Despite the disastrous course of misunderstandings which followed upon this agreement, we cannot accept the appellant's contention that the contract was in any way ambiguous or failed to state the intention of the parties at the time.
For better or for worse, Hollingsworth assumed sole responsibility for meeting the standards and specifications of the contract. The evidence amply supports the conclusion that *186 the 2.2-meter cards failed to achieve the promised results. The 4-meter cards were never delivered.
We are in complete agreement with the Master's finding that Hollingsworth was not entitled to rescission but instead had itself breached the contract.
In an action for breach of a sales contract, an aggrieved buyer may be entitled to incidental and consequential damages as defined by Section 36-2-715, Code of Laws of South Carolina. The evidence persuades us that this is a proper case for an award of both. Unfortunately, the Master accepted and applied certain formulations of the respondent which do not comport with the standard of "reasonable certainty" which has governed the determination of consequential damages in this State both before and since the adoption of the Uniform Commercial Code. J.A. Fay & Egan Co. v. Mims, 151 S.C. 484, 497-501, 149 S.E. 246; National Tire & Rubber Co. v. Hoover, 128 S.C. 344, 348, 122 S.E. 858; Lester v. Fox Film Corp., 114 S.C. 533, 536, 104 S.E. 178; Smith & Furbush Machine Co. v. Johnson, 102 S.C. 130, 140-141, 86 S.E. 489; McMeekin v. Southern Railway, 82 S.C. 468, 473, 64 S.E. 413; Standard Supply v. Carter & Harris, 81 S.C. 181, 62 S.E. 150 (and cases cited).
Lost profits are well recognized as a species of consequential damages. South Carolina Finance Corporation of Anderson v. West Side Finance Company, 236 S.C. 109, 122, 113 S.E. (2d) 329; Hiers v. Southeastern Carolinas Telephone Co., 216 S.C. 437, 443, 58 S.E. (2d) 692; Georgetown Towing Company v. National Supply Co., 204 S.C. 445, 451, 29 S.E. (2d) 765; Charles v. Texas Co., 199 S.C. 156, 178-181, 18 S.E. (2d) 719; National Tire & Rubber Co. v. Hoover, supra.
Respondent Arkon urges that its lost profits have exceeded two million dollars ($2,000,000.00). Arkon contends that the Hollingsworth equipment was expected to yield "economies of scale" which would have resulted in phenomenal production levels at no additional fixed cost. Hollingsworth attacks these claims as speculative and impermissible under the rule that lost profits for a new enterprise lack reasonable certainty. McMeekin v. Southern Railway, supra.
We conclude that the projections of Arkon introduce more than an acceptable level of uncertainty into the computation of damages in this case. Ultimately, however, *187 we resolve the issue of consequential damages on grounds of the contract language itself. Hollingsworth promised machinery that would perform at certain speeds and yield products of a certain quality. Nowhere in the contract (or in the negotiations prior thereto) does Hollingsworth guarantee that this machinery will operate at no additional fixed cost to Arkon. Whether or not such an expectation would be reasonable, we find no evidence that "economies of scale" were at anytime promised by the appellant to the respondent. Georgetown Towing Co. v. National Supply Co., supra; Liquid Carbonic Co. v. Coclin, 166 S.C. 400, 406, 164 S.E. 895; J.A. Fay & Egan Co. v. Mims, supra. We must therefore reject the theory upon which Arkon rests most of its claim for lost profits or extraordinary labor costs.
The record does, however, permit us to reach a reasonable figure for consequential damages in that Arkon establishes, without contradiction, that its actual profit margin during the damage period ranged between three and four percent (3-4%). We accept this figure along with Arkon's calculation of unrealized production directly prevented by the breach of Hollingsworth. We therefore find Arkon entitled to lost profits in the amount of Two Hundred Forty-eight Thousand Five Hundred and Ten ($248,510.00) dollars.
Incidental damages in this case are complicated by a number of factors. On the one hand, the 2.2-meter cards failed to meet contract specifications, giving rise to various expenses incurred in an effort to remedy the defects. On the other hand, the 4-meter cards were never delivered, necessitating a search for substitute machinery. As it developed, Arkon was ultimately required to purchase replacement machinery that was only 3.5 meters wide. Nevertheless, Arkon's statement of damages suggests that incidental costs were fully accrued and calculated as of April 30, 1979. The total of these reasonable expenses for additional fiber, repositioning of machinery, excessive waste and purchase of substitute equipment is Six Hundred Fifty-six Thousand Seven Hundred Forty-five ($656,745.00) dollars.
We conclude, therefore, that a proper award of incidental and consequential damages to Arkon for the breach of contract by Hollingsworth should not have exceeded the amount of Nine Hundred Five Thousand Two Hundred Fifty-five ($905,255.00) dollars. Amounts in excess thereof simply lack *188 support under the contract or in the evidence if measured by the standard of reasonable certainty. Accordingly judgment for the respondent is affirmed and damages awarded in the modified amount of $905,255.00.
The cause is remanded for entry of judgment accordingly.
LITTLEJOHN, NESS, GREGORY and HARWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726266/ | 721 So. 2d 716 (1998)
STATE of Florida, Petitioner,
v.
Steven RUBIN, et al., Respondents.
No. 91270.
Supreme Court of Florida.
September 24, 1998.
Rehearing Denied December 8, 1998.
Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, Miami, for Petitioner.
Ira N. Loewy of Bierman, Shohat, Loewy, Perry & Klein, P.A., Miami, for Respondent.
PER CURIAM.
We have for review Rubin v. State, 697 So. 2d 161 (Fla. 3d DCA 1997), which certified conflict with Hines v. State, 587 So. 2d 620 (Fla. 2d DCA 1991), concerning scoresheet errors. We have jurisdiction. See art. V, § 3(b)(4).
We resolved this issue in State v. Mackey, 719 So. 2d 284 (Fla.1998), by disapproving a rule of per se reversal in cases involving scoresheet errors. To that extent, we disapproved Mackey and approved Hines. Accordingly, that portion of the district court's decision that applied the per se rule of reversal is quashed. We remand for the Third District's reconsideration of this case in light of our decision in Mackey.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365990/ | 46 Cal.3d 1035 (1988)
761 P.2d 680
251 Cal. Rptr. 757
THE PEOPLE, Plaintiff and Respondent,
v.
FERNANDO EROS CARO, Defendant and Appellant.
Docket No. S004418. Crim. No. 22461.
Supreme Court of California.
October 6, 1988.
*1042 COUNSEL
Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Reil Rosenbaum and Jill Ishida, Deputy State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Donald E. Niver and Don Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PANELLI, J.
Defendant was convicted of first degree murder of Mary Booher and Mark Hatcher (Pen. Code, § 187),[1] kidnapping of Mary Booher (§ 207) with a firearm use finding (§ 12022.5), assault with intent to murder of Rick Donner and Jack Lucchesi (§ 217) with findings of intentional infliction of great bodily injury (§ 12022.7) and firearm use (§ 12022.5) as to each assault. Two multiple-murder special circumstances under the 1978 death penalty law were also found true (§ 190.2, subd. (a)(3)). The jury returned a verdict of death on each murder count; the appeal is automatic. (§ 1239, subd. (b).)
*1043 We conclude that one of the multiple-murder special circumstances must be set aside. In all other respects we affirm the judgment.
I. GUILT PHASE
A. Facts.
1. The Booher-Hatcher Murders and Booher Kidnapping.
Mary Booher and Mark Hatcher were cousins, 15 years old. About 7 p.m. on August 20, 1980, they left Hatcher's home in rural Fresno County for an after-dinner bicycle ride. About a half-hour later Hatcher's mother and grandmother went out for a walk, to meet the youths as they returned from their ride. As the women walked, they heard a single gunshot from the direction of an orchard behind the house and shortly thereafter saw a pickup truck leaving the orchard on an oiled access road. Some minutes later they returned with a flashlight and found Hatcher's body on a road in the orchard, shot in the face. Later examination revealed that the shot had been fired at a range of six to twenty-four inches.
The bicycles were found the following day in an irrigation canal about eight miles from Hatcher's home.
Booher's body was discovered on August 25 in an orange grove a few miles away, also shot in the head. The body was leaning against the lower branches of a tree, in a position consistent with having fallen there or with having been dumped. It was missing a rubber thong from one foot, and there were barefoot impressions on the ground nearby. Otherwise the body was fully clothed, and there were no indications of sexual activity. The body was in a state of decomposition consistent with its having been dead for four to five days, and the presence of undigested food in the stomach indicated that death had occurred within two hours of a meal.
2. The Donner-Lucchesi Assaults.
About 8:20 p.m. on August 20, 1980, Rick Donner and Jack Lucchesi were standing in the parking lot of a bar at an intersection about two miles from the scene of the Hatcher slaying. A pickup truck approached the intersection, proceeding somewhat erratically. It entered the parking lot and Donner observed the driver, later identified by both Donner and Lucchesi as defendant, to be looking down at the seat or floor of the cab. The pickup cut across the lot and as it exited, its right rear fender glanced against Donner's parked car, causing slight damage. The truck did not stop, and Donner and Lucchesi gave chase in their own vehicles.
*1044 After about five minutes the truck pulled to the side of the road and stopped, Donner and Lucchesi pulling in behind. The driver got out and stood facing the men, with his left hand hidden inside the cab. Lucchesi walked towards him and the driver put up his right hand and said "don't hurt me" several times. Lucchesi asked him why he had not stopped back at the bar, and the driver said he had been afraid they might beat him up. Lucchesi said no one was going to hurt him, and asked if he had any insurance. A bicycle was visible in the bed of the truck.
Suddenly the driver's expression changed and Lucchesi stepped back toward the middle of the road. The driver withdrew his left hand from the truck holding a revolver, which he fired at Lucchesi, hitting him above his right eye and knocking him to the pavement. He then fired two shots at Donner, hitting him once in the thigh. Approaching Lucchesi where he lay on the road the driver shot him once more in the chest. He then fired two more shots at Donner, who by this time was escaping through the orchard by the side of the road. Both shots missed, but Donner heard the bullets fly past him as he fled. Then, hearing the gun click empty, Donner turned and saw the driver get back in the truck and drive away.
Donner continued through the orchard to a house about 200 yards back along the road. Lucchesi made his way there also a short time later, having managed despite serious injuries to get into his vehicle and back it up to the driveway. The occupant of the house summoned police and an ambulance. Both men survived the shootings, but Lucchesi was left functionally blind in one eye.
3. Defendant's Arrest and Interview.
Within a few days of the incidents described above, defendant's supervisor at the Fresno chemical plant where he worked saw a police sketch in the newspaper based on Donner's description of his assailant and noted that it resembled defendant. The supervisor recalled that defendant owned an orange Chevrolet stepside pickup truck such as the one described in the newspaper account of the assaults, that defendant had not driven the pickup to work since the shootings, and that he had also seen defendant in the past with a large caliber handgun. The supervisor related this information to an acquaintance in the sheriff's department, and on August 25 defendant was arrested at the plant for murder and kidnapping. As defendant was being escorted to the locker room to change his clothes he broke free and ran, but was soon caught.
At the police station, defendant told officers he knew they were "going to come get me" because he looked just like the person in the sketch. He said *1045 that that was why he had shaved off his moustache the day before and parked his truck in his garage. He said there was damage to the side of the truck such as they were seeking.
Defendant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and denied being involved in either the Booher-Hatcher killings or the Donner-Lucchesi assaults. He said that on August 20 he was at home with his girlfriend, Cathy Lozano, from 4:30 p.m. onward, and that from 8 to 11 that evening they were watching television. He gave police consent to examine a.357-caliber Colt Python revolver owned by Lozano, and his orange Chevrolet stepside pickup truck. He said that he normally drove the truck to work but that around August 15 a car had collided with it in a store parking lot and it had sustained damage similar to that reportedly later done to the truck in the Donner-Lucchesi incident. He said that after he heard about the incident he thought the condition of the truck might arouse suspicion, so he decided to leave it in his garage and use Lozano's car to get to work. He denied that there had been a bicycle in his truck on August 20.
4. Ballistics and Other Evidence.
The police searched defendant's apartment in Fresno with his consent and seized Lozano's gun. Lozano said she had been away from the apartment between August 18 and midnight on August 20, and that she did not have the gun with her during that time. Two or three hours before she returned on the night of August 20 she had a telephone conversation with defendant in which he told her that he had had a "hassle" with two men and had "had to pull a gun."
Police experts determined that a bullet fragment removed from Hatcher's brain had been fired from Lozano's gun. The same was true of a bullet recovered from the wall of the house to which Donner fled from his attacker.
Paint on Donner's car from the collision matched defendant's truck, and tire tracks at the site of the assaults and near Booher's and Hatcher's bodies were consistent with the truck's tires. Donner recalled the license number on his assailant's truck as "30079N" or "30779N." Defendant's truck license number was "30997N." Shoe prints near both bodies matched prints in defendant's garage, although police found no shoes in defendant's possession which could have made the prints.
5. Defendant's Case.
Defendant did not testify. The thrust of his evidence and argument was to expose discrepancies in the prosecution's case and to attack the sufficiency *1046 of the evidence on the various counts. In particular, in arguing against the kidnapping charge, counsel disputed the prosecution's contention that defendant transported Booher in his truck to the orange grove and that she was still alive when she was moved. In addition he argued absence of motive for either of the killings.
B. Jury Selection.
(1a) After the jury was selected and sworn, the court recessed for the weekend with plans to select two alternate jurors the following week. When court convened on the day set for selection of the alternates, however, one of the jurors was excused due to a family illness. To fill the vacancy, the court proposed to select three alternates rather than the two originally planned, and to have one of those take the place of the juror who had been excused. Both sides agreed to this procedure, and the three alternates were selected. The prosecution used all three of its allotted peremptory challenges and defendant used two.[2] One of the alternate jurors so selected was then seated on the jury.
Defendant claims that this procedure improperly denied him the use of his 26 allotted peremptory challenges, of which he had used only 18 when the panel was sworn. (The prosecution had used 14 of its allotted 26.) Defendant contends that, upon the excuse of a sworn juror prior to the selection of the alternates, the court had a duty under In re Mendes (1979) 23 Cal.3d 847 [153 Cal. Rptr. 831, 592 P.2d 318], and People v. Armendariz (1984) 37 Cal.3d 573 [209 Cal. Rptr. 664, 693 P.2d 243], to reopen jury selection and to allow defendant to exercise any of his remaining eight peremptory challenges against any of the already seated jurors. Failure to do so, he argues, was cause for reversal.
In Mendes, supra, 23 Cal.3d 847, this court held that, for double jeopardy purposes, where a trial court has indicated that a trial will be conducted with alternate jurors, impanelment is not complete until the alternate jurors are sworn. (Id. at p. 853.) We further held that in a situation similar to the instant one the trial court did not abuse its discretion in allowing the exercise of unused peremptory challenges against jurors already sworn. (Id. at p. 855.) We noted that there is often an appreciable interval between the swearing of a juror and the point at which the jury is deemed complete, during which time a peremptory challenge may be made to the juror where there is good cause for the earlier failure to do so. A change in the composition of the panel, we observed, constitutes good cause. (Ibid.) In Armendariz, *1047 supra, 37 Cal.3d 573, we relied on Mendes to reverse a conviction where a trial court denied a defendant's request to exercise some of his twenty-two unused peremptory challenges against already seated jurors after two jurors were excused prior to the swearing of five alternates.
Defendant cites no case, however, in which this reasoning has been applied on direct appeal to overturn a conviction for error in the jury selection process where the defendant registered no objection. Rather, the defendant in such a situation may not be heard to complain absent a showing of prejudice. (2) (See fn. 3.) (People v. Patterson (1943) 58 Cal. App.2d 837, 843-845 [138 P.2d 341]; People v. Kennedy (1937) 21 Cal. App.2d 185, 200-201 [69 P.2d 224]; see Buckley v. Chadwick (1955) 45 Cal.2d 183, 203 [288 P.2d 12].)[3] (1b) Had defendant requested that the court reopen jury selection and been refused, he would have a claim for reversal under Armendariz, supra, 37 Cal.3d 573. The instant case is distinguishable, however, inasmuch as there is no indication that defendant was in any way dissatisfied with the panel as it was constituted. Defendant's reliance on People v. Diaz (1951) 105 Cal. App.2d 690 [234 P.2d 300], and People v. O'Connor (1927) 81 Cal. App. 506 [254 P. 630], is similarly unavailing, as the defendants in both those cases made their objections known at the time the purported errors occurred. Here, by contrast, defense counsel stipulated to the procedure.
Defendant argues that counsel's failure to object to the procedure adopted by the court constituted ineffective assistance. Moreover, he asserts that counsel's failure to act stemmed from ignorance rather than any conceivable tactical consideration, and that we must reverse since we cannot infer from the record that had counsel been aware of the holding in Mendes, supra, 23 Cal.3d 847, he would not have requested the reopening of the panel to peremptory challenges. As already noted, however, defendant does not allege that either he or counsel was dissatisfied with the panel. Thus, no prejudice has been shown from his counsel's asserted ignorance, and his claim of ineffectiveness of counsel must therefore fail. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal. Rptr. 855, 659 P.2d 1144]; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693, 104 S.Ct. 2052].)
C. Admissibility of Posthypnosis Testimony of Rick Donner.
The first and second day after the shootings, Rick Donner took part in two sessions in which law enforcement personnel purportedly hypnotized *1048 him in order to enhance his memory of the events of August 20. While Donner was informed only of the general purpose of the sessions, the officers' specific objective was to get him accurately to recall the license number of the pickup truck driven by his assailant. The first session, conducted in the hospital, lasted about two hours. It was not recorded, due to a malfunctioning tape recorder, and no transcript was prepared. The second session, at Donner's home, lasted about an hour and was taped and transcribed. Neither session yielded the information the officers sought.
Before trial, defendant moved to prevent Donner from testifying on the ground that his hypnotic experience had rendered him incompetent as a witness.[4] Defendant called Dr. Bernard Diamond, an expert on hypnosis, who testified to its damaging effects on the reliability of subsequent recollection. The prosecution presented its own expert, Dr. David Spiegel, who contested the views of Dr. Diamond and who also opined that Donner had never actually been hypnotized. Spiegel based his opinion on (1) a review of the record of the second hypnotic session and an interview with the officer who conducted it, which revealed that Donner had responded to the officer's inquiries with little if any emotion and in the past tense rather than the present, and (2) the results of a "Hypnotic Induction Profile" (HIP) test Spiegel performed on Donner to determine Donner's "hypnotizability."
The officer who conducted the first session testified that Donner generally responded in the past tense to her prompts and questions. She was not asked whether she thought Donner had actually been hypnotized during the session, and offered no opinion in that regard. The officer who conducted the second session testified that he could not be sure whether Donner was hypnotized or not, but did state that he did not consider Donner a good subject for hypnosis at the time "because of his movements." He also testified that he was "disappointed" to hear Donner speak in the past tense during the session, because it was an indication that Donner was "not in a very deep state [of hypnosis], if at all."
Donner testified that he did not feel he had been hypnotized at either session. While he could not account for the fact that the first session, which he remembered as lasting only 20 minutes, had actually lasted about 2 hours, the evidence showed that he had received a morphine injection the previous evening for pain and that the drug has a lingering sedative effect.
*1049 The court found that Donner had not in fact been hypnotized, and denied defendant's motion.
(3) Defendant contends that the court's ruling was error because it was based on the opinion of Dr. Spiegel, which was based in turn upon the results of the HIP test. He argues that the court should have disregarded Dr. Spiegel's opinion because the HIP test did not meet the Kelly-Frye standard (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal. Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir.1923) 293 Fed. 1013) of "[general] accept[ance] as reliable in the scientific community in which it [was] developed." (Guerra, supra, 37 Cal.3d at p. 410.) Defendant raised no such objection below. (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal. Rptr. 732, 579 P.2d 1048].) Nevertheless, he urges that we address his objection here or find alternatively that counsel's failure to raise the issue below constituted ineffective assistance.
We conclude that defendant's argument must fail. The court's factual finding was based not only on Dr. Spiegel's opinion but on the testimony of Donner himself and of the officers who conducted and witnessed the sessions, all evidence supportive of a finding that Donner had not in fact been hypnotized. Dr. Spiegel's opinion in turn was not based solely on the result of the HIP test. Rather, Dr. Spiegel referred to a variety of data which he was qualified to interpret, and on which, as an expert witness, he was entitled to base an opinion. Viewing the evidence in the light most favorable to the trial court's finding, there was substantial evidence to support the finding, and it must be upheld on appeal. (See People v. Ratliff (1986) 41 Cal.3d 675, 686 [224 Cal. Rptr. 705, 715 P.2d 665].)
D. Sufficiency of Evidence to Support the Finding of First Degree Murder as to Hatcher.
(4) Defendant claims that there was insufficient evidence as a matter of law to support the jury's finding of premeditation and deliberation as to the Hatcher murder, and that defendant's conviction of first degree murder on the Hatcher count must be reversed.[5]
*1050 In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal. Rptr. 550, 447 P.2d 942], we identified three categories of evidence which have been found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity; (2) facts suggesting motive; and (3) facts about the manner of killing which suggest a preconceived design. Although the evidence was not particularly strong on any one of the Anderson factors, the record reveals at least some support in each of the categories.
As to planning, the evidence shows that defendant armed himself and that he went in his pickup truck to the orchard. There it appears that he walked or ran into the orchard at a location about 200 feet from where Hatcher's body was found and that he proceeded toward that location in an irregular course roughly paralleling the road, evidence the prosecutor argued was supportive of an inference that defendant stalked Booher and Hatcher before attacking them.
As to motive, there is no evidence of a prior relationship. The jury could reasonably infer, however, that defendant killed Hatcher either because Hatcher had witnessed the kidnap of Booher or because defendant intended to kidnap her and wished to eliminate Hatcher as a potential witness. Defendant argues that he could just as easily have kidnapped Booher in a panic following the unpremeditated killing of Hatcher; however, the jury was entitled to infer from the difficulty and risk inherent in kidnapping Booher, as opposed to simply shooting her at the scene, that his intent to take her alive was overriding and provided a motive for the killing.
As to the manner of killing, a close-range gunshot to the face is arguably sufficiently "particular and exacting" to permit an inference that defendant was acting according to a preconceived design. (See People v. Cruz (1980) 26 Cal.3d 233, 245 [162 Cal. Rptr. 1, 605 P.2d 830].)
"Although the evidence was far from overwhelming, we need not be convinced beyond a reasonable doubt that defendant premeditated the *1051 [murder]. The relevant inquiry on appeal is whether `"any rational trier of fact"' could have been so persuaded. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal. Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], quoting from Jackson v. Virginia [1979] 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781], italics original.)" (People v. Lucero (1988) 44 Cal.3d 1006, 1020 [245 Cal. Rptr. 185, 750 P.2d 1342].) The evidence in this case meets this test.
II. SPECIAL CIRCUMSTANCE FINDINGS
(5a) Defendant contends that it was error to charge him with two multiple-murder special circumstances rather than one. He is correct. We have repeatedly held that regardless of the number of murders charged in an information it is error to charge more than one special circumstance alleging multiple murder. (See, e.g., People v. Kimble (1988) 44 Cal.3d 480, 504 [244 Cal. Rptr. 148, 749 P.2d 803]; People v. Allen (1986) 42 Cal.3d 1222, 1273 [232 Cal. Rptr. 849, 729 P.2d 115].) Accordingly, one of the multiple-murder special circumstances should be set aside.
III. PENALTY PHASE
A. Facts.
1. Prosecution Evidence.
In addition to presenting evidence of the guilt phase crimes, the prosecution at the penalty phase put on evidence of two prior uncharged murders, a prior kidnapping conviction stemming from a forcible kidnap and rape, and two escape attempts.[6]
a) The Prior Uncharged Murders.
In April 1980 the bodies of two unidentified teenage girls were found in an orchard near Bakersfield in Kern County, about 100 miles south of Fresno. Both had been recently shot in the head. One of the victims had been bound at the wrists and ankles. The other was partially clad and was unbound. The latter victim showed signs of recent sexual activity; sperm and semen were found in the victim's vagina and rectum. Pubic hairs found on a nylon jacket near the body were indistinguishable from defendant's. A bullet fragment recovered at the scene was incontrovertedly shown to have been fired from the revolver belonging to defendant's girlfriend Cathy *1052 Lozano. Tire tracks near one of the bodies, while they could not have been left by defendant's truck, were not inconsistent with Lozano's car.
Evidence from defendant's time cards showed that he was working in Fresno on the dates the killings had to have occurred. It would have been possible, however, for him to drive from Fresno to the Bakersfield area and back again between clocking out on one of the two nights in question and clocking back in the next day. Lozano was outside the state at that time, with her car but without her revolver, which she believed to be in defendant's possession.[7]
b) The Prior Rape and Kidnap.
Defendant admitted that he had been previously convicted of kidnapping and that five years had not elapsed since the conclusion of his state prison term for that offense.
The victim, Deborah S., testified that defendant picked her up hitchhiking to her job as a law clerk in San Diego in October 1975. She was 27 years old. After she got in his car he pulled a gun on her and drove more than 50 miles out of the city into the desert, where he raped her. Defendant then told Deborah he would drive her to El Centro where she could get a bus back to San Diego. When he appeared to be bypassing the town, however, Deborah struggled with defendant and escaped from his moving car. Defendant was charged with kidnapping (§ 207) and rape (§ 261), with a gun use allegation (§ 12022.5). In May 1976 he pled guilty to kidnapping; the rape charge and gun use allegation were dismissed.
c) The Attempted Escapes.
On July 8 and November 17, 1981, defendant attempted to escape from the superior court holding facility. In both incidents defendant struggled with sheriff's deputies before being subdued and returned to his cell.
2. Defense Evidence.
Defendant did not testify at either phase of the trial. At penalty phase, he presented evidence casting doubt on his guilt in the uncharged murders. He also introduced extensive background and character evidence by way of the *1053 testimony of his parents, a brother, childhood and other friends, his high school coach, his brother-in-law, his ex-wife, his girlfriend Cathy Lozano, his supervisor from his job in Fresno and a vocational instructor from the California Correctional Institution at Tehachapi where defendant served his prison term for the 1975 kidnapping. In addition defendant presented the testimony of a clinical psychologist who had subjected him to a battery of psychological tests and of a licensed clinical social worker familiar with his case.
a) Personal History.
Born in 1949, defendant was the oldest of eight children of poor farm laborers in rural Imperial County. Defendant's father was an alcoholic and beat defendant's mother, who left the father three times before defendant was thirteen. Both parents were strict disciplinarians and often hit defendant as a child. The entire family was cold and emotionally distant from one another. Defendant did well in school, and was respected as a student and athlete, earning honors at every stage. He was well-liked in high school and in college, but had few if any close friends and was known as a person who handled his problems privately. He attended San Diego State University after high school, pursuing a major in engineering. He was active in community service activities and in ROTC. He dropped out of college his final year and joined the Marines, where he earned a lieutenant's commission and aviator's wings.
While still in college, defendant met Rosalyn Duran, whom he eventually married. Their relationship was far from smooth, however. Once during their courtship defendant took Duran against her will from her parents' home in San Jose to his apartment in San Diego, and from there to his parents' home in Brawley where he threatened her with a gun when she indicated that she was not sure she wanted to marry him. After the wedding they separated and reunited a number of times, defendant attempting suicide after one such separation. At the time of the Deborah S. kidnapping and rape, Duran was pregnant with the couple's second child and they were living with defendant's parents in Brawley.
Duran and defendant were divorced during his three-year term in Tehachapi, where he learned air conditioning and was a model inmate. Paroled in 1978, defendant moved to Fresno and found a job first as a watchman and then in the maintenance department of the chemical plant where he was employed at the time of his arrest in 1980. Despite their divorce, defendant and Duran remained close, and he occasionally visited her and their three children in San Jose. They also talked frequently on the telephone.
*1054 Defendant met Cathy Lozano in Fresno in 1978, and they moved in together about six months later. He helped her move to Arizona in February 1980, where she lived until about July, when she returned to Fresno and moved in with him again. After Lozano returned, they fought often, mostly about defendant's frequent calls from Duran. When they fought, Lozano testified, defendant would become "cold, distant ... like another person." After one such fight in August 1980 Lozano moved out and went to stay at a friend's house. She returned after three days, but they fought again. Apparently during one of these arguments the revolver was out and defendant put it to his head, telling Lozano that if she wanted him dead he would kill himself. Lozano left again, and was gone another three days, during which time the charged murders and assaults occurred.
b) Psychological Evaluation.
Errol Leifer, a licensed clinical psychologist who had administered a battery of psychological tests to defendant but who was otherwise unfamiliar with defendant's background, testified that defendant was of superior intelligence but that he seemed periodically to lapse into a lower level of functioning in which he appeared to lose his grip on reality and to indulge in hostile and aggressive thoughts. He said that defendant manifested a sense of loneliness and separateness from other people, had difficulty attaching any emotions to his early memories, and that he produced punitive or otherwise disturbing associations to words having to do with family relationships. Dr. Leifer also said defendant exhibited low self esteem and that he appeared anxious to please. He testified that all of these traits were consistent with someone who was a victim of child abuse and with an unpredictable and explosive personality.
Lynn Woodward, a licensed clinical social worker, testified that she had interviewed defendant and his mother, and that she had familiarized herself with defendant's case and history through reviewing police, prison, probation, military and medical reports and taped interviews with family members and others who knew defendant. She testified that defendant was a victim of serious beatings as a child, that he felt "withdrawn and isolated" as a result, that he "overachieved" in order to get some kind of approval from his parents and others, that he had a lot of suppressed rage and was very sensitive to rejection, and that his bottled emotions could conceivably manifest themselves in periods of explosive, uncontrolled aggression. She said that on August 20, 1980, defendant was probably so devastated by his breakup with Lozano that he became extremely explosive and may have killed Booher and Hatcher in a rage at seeing what appeared to be a happy couple sharing something he felt he could never have.
*1055 B. The Uncharged Murders.
Prior to the guilt trial, defendant made the following alternative motions with respect to the prosecution's notice of circumstances in aggravation: (1) to strike or alternatively to demur to evidence of the uncharged murders; (2) to continue the penalty phase until after trial in Kern County on the uncharged murders or until the Kern County District Attorney's office should unequivocally state that it would not prosecute the offenses; or (3) for a "preliminary hearing" on the evidence of the uncharged crimes. The trial court denied the motions, possibly on the ground they were premature, since there was as yet no assurance that there would even be a penalty phase in the case.
After the guilt verdicts were returned, defendant raised the motions again, and the court, after hearing argument from both sides, denied the first two but granted the third. It then held a "preliminary hearing" at which it determined that there was probable cause to put the evidence of the uncharged murders before the jury. The court rejected defendant's requests (1) that an advisory jury be impaneled to hear the evidence of the uncharged killings, or (2) that the penalty phase jury hear that evidence first and a new jury be impaneled to hear the rest of the penalty phase evidence if the first jury did not find beyond a reasonable doubt that defendant committed the killings. The court did instruct the jurors, however, not to consider the evidence of either of the uncharged killings in aggravation unless they found unanimously that defendant had committed the killing beyond a reasonable doubt, and it provided the jury with special verdict forms for that purpose. The jury reported at the conclusion of its deliberations that it did not unanimously find that defendant had committed the killings.
Defendant contends that the admission of evidence of the uncharged murders violated (1) his state constitutional privilege against self-incrimination by putting him in the intolerable position of having to choose between exercise of that privilege and his right to testify at his trial, and (2) his federal and state due process right to be tried before a fair and impartial jury.
1. The Right to Testify and the Privilege Against Self-incrimination.
(6) Defendant argues that by allowing the introduction of evidence of killings for which he might at some future date be tried, the court forced him to surrender his right to testify at penalty phase in order to preserve his state constitutional privilege against self-incrimination as to the uncharged offenses. He contends that without a continuance of the penalty trial, or a guaranty from the Kern County District Attorney's office that it would not *1056 prosecute the killings, he was forced to remain silent and to give no mitigating account of himself for fear the prosecution would compel him to testify about the Kern County crimes on cross-examination.
The forced choice of which defendant complains is permissible under the federal Constitution. (See McGautha v. California (1971) 402 U.S. 183 [28 L.Ed.2d 711, 91 S.Ct. 1454].) In McGautha the United States Supreme Court held that Ohio's practice of determining guilt and penalty issues in a single "unitary" trial in capital cases violated neither the Fifth Amendment privilege against self-incrimination nor any federal constitutional right of the defendant to be heard on the issue of punishment,[8] even though it meant that the defendant would be forced to waive his privilege against self-incrimination on the issue of guilt if he chose to testify on the issue of punishment. (402 U.S. at pp. 213-220 [28 L.Ed2d at pp. 729-733]; see also People v. Williams (1988) 44 Cal.3d 883, 966, fn. 48 [245 Cal. Rptr. 336 [751 P.2d 395].) Curtailing the reach of earlier broad language in Simmons v. United States (1968) 390 U.S. 377, 394 [19 L.Ed.2d 1247, 1259, 88 S.Ct. 967], which had declared it "intolerable that one constitutional right should have to be surrendered in order to assert another[,]" the McGautha court observed: "The criminal process ... is replete with situations requiring the `making of difficult judgments' as to which course to follow. [Citation.] Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." (402 U.S. at p. 213 [28 L.Ed.2d at p. 729].)
Relying on People v. Coleman (1975) 13 Cal.3d 867 [120 Cal. Rptr. 384, 533 P.2d 1024] (probation revocation proceeding), and In re Ramona R. (1985) 37 Cal.3d 802 [210 Cal. Rptr. 204, 693 P.2d 789] (juvenile court fitness hearing), defendant argues that he should have been given use immunity for any penalty phase testimony similar to that established in those cases. We need not resolve the issue, however, because it is clear that defendant was not prejudiced by the denial of use immunity.
The jury was ultimately instructed to disregard all evidence of the uncharged killings. Thus, defendant's failure to testify about them could not have been prejudicial. As to defendant's decision not to testify even as to general aspects of his background and character, we are not persuaded that it reasonably was caused by the lack of use immunity. Had defendant not testified about the killings on direct examination, any attempt to cross-examine him on that subject would not have survived a timely objection as to *1057 scope. Thus, defendant faced no greater dilemma in that regard than that facing any witness whose testimony might be vulnerable to impeachment based on evidence of prior criminal activity.
2. Due Process.
(7a) Defendant contends that it was humanly impossible for the jurors, having heard and viewed two full days of testimony and numerous exhibits regarding the uncharged murders, to follow the trial court's instruction that absent a unanimous finding that defendant committed either of the killings beyond a reasonable doubt, they should disregard the evidence in its entirety. He notes that a finding such as that rendered by the jury that "[w]e ... do not unanimously find the [defendant] committed [the] crime[s]," is quite different from an ordinary verdict of not guilty, in which jurors must unanimously join. Rather, he argues, it presents the possibility that as many as 11 jurors may actually have found to their individual satisfaction that he did commit the killings, making it impossible for them to ignore the evidence in their deliberations.
(8) Jurors may only consider evidence of other crimes in aggravation of penalty under section 190.3, factor (b) if they find the other crime proven beyond a reasonable doubt. (People v. Davenport (1985) 41 Cal.3d 247, 280 [221 Cal. Rptr. 794, 710 P.2d 861]; People v. Robertson (1982) 33 Cal.3d 21, 53 (plur. opn.), 60 (Broussard, J., conc.) [188 Cal. Rptr. 77, 655 P.2d 279].) There is no requirement of unanimity, however, and it is entirely proper under the statute for individual jurors who find the aggravating circumstance beyond a reasonable doubt to consider that evidence in the weighing process. (People v. Miranda (1987) 44 Cal.3d 57, 99 [241 Cal. Rptr. 594, 744 P.2d 1127]; People v. Ghent (1987) 43 Cal.3d 739, 773-774 [239 Cal. Rptr. 82, 739 P.2d 1250].) (7b) Since it would have been permissible for each juror who did find that defendant had committed either or both of the uncharged killings beyond a reasonable doubt to consider that evidence in aggravation of penalty, the court's requirement of a unanimous special finding in that regard actually provided greater protection than that to which defendant was entitled under the statute.
(9) As to the possibility that jurors who were not convinced of defendant's guilt in the uncharged crimes might have been influenced by the prejudicial effect of the evidence, such a risk is inherent in the introduction of any evidence of prior criminal activity under factor (b), and has been condoned by this court: "The penalty phase is unique, intended to place before the sentencer all evidence properly bearing on its decision under the Constitution and statutes. Prior violent criminality is obviously relevant in this regard; the reasonable doubt standard ensures reliability; and the *1058 evidence is thus not improperly prejudicial or unfair." (People v. Balderas (1985) 41 Cal.3d 144, 205, fn. 32 [222 Cal. Rptr. 184, 711 P.2d 480].)
C. Admissibility of Testimony of Victim of Prior Kidnapping and Rape.
(10) Defendant argues that it was error to admit the testimony of Deborah S. about the 1975 forcible kidnapping and rape.
First he contends that since the rape charge and gun use allegation were dismissed pursuant to a plea bargain, any evidence of those offenses was barred under section 190.3, paragraph 3, which prohibits admission of evidence of criminal activity "for which the defendant was prosecuted and acquitted." He argues that, absent any contrary agreement, a dismissal obtained in exchange for a plea of guilty to another charge is made with the "[i]mplicit ... understanding ... that [the] defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (People v. Harvey (1979) 25 Cal.3d 754, 758 [159 Cal. Rptr. 696, 602 P.2d 396].) We recently rejected the identical argument in People v. Melton (1988) 44 Cal.3d 713, 755-756 [244 Cal. Rptr. 867, 750 P.2d 741].) Moreover, the rape and gun use occurred during the course of the kidnapping for which defendant was convicted, and thus the underlying facts did not pertain solely to the dismissed counts. (Cf. Harvey, supra.)
Second, defendant contends that, since he admitted the kidnapping conviction, S.'s testimony should have been excluded as an impermissible attempt by the prosecution to show an element of force and violence unnecessary to the conviction. We have rejected similar arguments in Melton, supra, 44 Cal.3d at pages 754-755, and People v. Gates (1987) 43 Cal.3d 1168, 1203 [240 Cal. Rptr. 666, 743 P.2d 301].
D. Admissibility of Evidence of the November 1981 Escape Attempt.
(11) During the guilt phase, the prosecution orally amended its notice of circumstances in aggravation to include an escape attempt by defendant which had occurred only two days before, on November 17, 1981.[9] Defendant's counsel made no objection, indicating only that he would need time to investigate the incident. The trial court granted the amendment, and at the penalty phase the prosecution introduced evidence about the escape attempt.
*1059 Defendant now contends this was error. He relies on the language of section 190.3, paragraph 4, which requires that notice of evidence to be introduced at the penalty phase be provided "within a reasonable period of time as determined by the court, prior to trial." (Italics added.)
The purpose of the notice provision is to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial. (See People v. Miranda, supra, 44 Cal.3d at p. 96.) In People v. Howard (1988) 44 Cal.3d 375, 419-425 [243 Cal. Rptr. 842, 749 P.2d 279], we found no prejudice resulting from the prosecution's giving of notice of certain evidence at the end of the guilt phase when the prosecution first became aware of the evidence. The important factor, we stated, was that defendant was given extra time to prepare and never requested more. In the present case, the escape attempt did not occur until after the guilt phase was underway. Thus it would not have been possible to have given notice before the beginning of the guilt phase trial. The reasoning in Howard applies equally here, and the statutory purpose of the notice provision was fulfilled. We find no error in the admission of this evidence.
E. Refusal to Limit Cross-examination of Defense Psychiatrist.
(12a) Defendant proposed to call Dr. Samuel Benson, a psychiatrist, to testify that defendant suffered from "intermittent explosive disorder" and a "reality testing" defect, and that he was a borderline psychotic. Prior to calling the witness, however, defendant sought an order preventing the prosecution from cross-examining the witness on the subject of any statements defendant may have made to him about the crimes for which defendant was convicted at the guilt phase. Defendant maintained that while he had indeed spoken to Dr. Benson about the crimes, Dr. Benson at counsel's request had disregarded all such statements in reaching his diagnosis, basing it solely on defendant's statements about his history and upbringing and on police reports of the crimes themselves. Defendant proposed to make what he characterized as a "conditional waiver" of the attorney-client and/or psychotherapist-patient privilege (Evid. Code, §§ 954, 1014) to allow Dr. Benson to testify only to his diagnosis and the information which formed the basis therefor.
The prosecution objected, arguing that it was inconceivable that the witness could have arrived at a diagnosis without considering defendant's statements about the crimes, and that even if the witness were so to testify the prosecution would still be entitled to question him as to the broad range of information available to him which he could, and perhaps ought to, have considered in forming an expert opinion. Thus, the prosecutor argued, any partial waiver of the privilege such as defendant was proposing was illusory, *1060 and would only result in an unfair limitation on the prosecution's right to a full and fair cross-examination. The court agreed, defendant's request was denied, and defendant declined to call Dr. Benson to testify.
(13) (See fn. 11.), (12b) Defendant now argues that the court's ruling was error. He contends that questions about any statements to Dr. Benson other than those on which the witness purportedly based his diagnosis would have been beyond the scope of proper cross-examination of an expert witness as set forth in Evidence Code section 721, subdivision (a),[10] and that calling Dr. Benson to testify would not have amounted to a waiver of the attorney-client privilege as to those statements defendant sought to protect from disclosure.[11]
Defendant's arguments are unpersuasive. Dr. Benson did not testify, and, counsel's assertions notwithstanding, we cannot conclude from the record precisely which of defendant's statements the witness actually referred to in reaching his diagnosis. Similarly, we have only counsel's unsworn assertions to counter the prosecution's reasonable claim that eliciting testimony about Dr. Benson's diagnosis of defendant and the basis therefor would have involved disclosure of a "significant part" of the communication sought to be protected and as such would have constituted a waiver of defendant's attorney-client privilege under Evidence Code section 912, subdivision (a).[12]
If Dr. Benson had testified and had asserted that his opinion was based in no part on statements by defendant about the events surrounding the crimes, the prosecution might have been foreclosed from cross-examining him about such statements. (People v. Reyes (1974) 12 Cal.3d 486, 503-504 [116 Cal. Rptr. 217, 526 P.2d 225].) The court did not abuse its discretion, *1061 however, by refusing to rule on this question in advance of any testimony from the witness.
F. Alleged Improper Excusal of Prospective Penalty Jurors.
1. Challenges for Cause.
Defendant argues that the excusal of 10 prospective jurors for cause based on their conscientious scruples regarding imposition of the death penalty was improper insofar as the court did not inform them of their civic duty to sit as jurors if they could subordinate their personal beliefs and abide by existing law. He contends that without such a sua sponte admonition the court had no grounds to conclude that the reservations of any individual prospective juror about the death penalty would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770].) We have recently rejected precisely this argument in People v. Miranda, supra, 44 Cal.3d at page 96. Review of the voir dire of the 10 prospective jurors named by defendant reveals no cause for us to doubt that each was properly excused.
2. Peremptory Challenges.
Defendant also contends that the prosecution improperly exercised peremptory challenges to exclude 14 prospective jurors who, though not excusable for cause, nonetheless expressed a "lack of enthusiasm" for imposing the death penalty. (14) There is no constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty. (People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal. Rptr. 196, 690 P.2d 669] (plur. opn.); People v. Belmontes (1988) 45 Cal.3d 744, 799 [248 Cal. Rptr. 126, 755 P.2d 310].)
G. Failure to Delete Allegedly Irrelevant Factors.
Defendant argues that the trial court committed reversible error when it denied his request to omit factors (d) and (f) (§ 190.3, factors (d) ["Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance"] and (f) ["Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct"]) from its instructions, as factors not applicable to the case. We have resolved this issue against defendant by our holding in People v. Ghent, supra, 43 Cal.3d 739, 776-777.
*1062 H. Age, Factor (k) Evidence and Absence of Evidence of Factors in Mitigation as Aggravating.
The prosecution in closing argument characterized defendant's age at the time of the offenses (defendant was 30) as an aggravating factor.[13] The argument was permissible. (See People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal. Rptr. 1, 753 P.2d 1052].)
(15) The prosecution also argued that some of the evidence introduced by defendant under factor (k) (§ 190.3, factor (k) ["any other circumstance which extenuates the gravity of the crime"]) was aggravating rather than mitigating.[14] Factor (k) is "an open-ended provision permitting the jury to consider any mitigating evidence." (People v. Boyd (1985) 38 Cal.3d 762, 775 [215 Cal. Rptr. 1, 700 P.2d 782]; People v. Easley (1983) 34 Cal.3d 858, 878 [196 Cal. Rptr. 309, 671 P.2d 813].) In Boyd, supra, 38 Cal.3d at page 775, we observed: "The language of factor (k) refers to circumstances which extenuate the gravity of the crime, not to circumstances which enhance it." Accordingly, we held that while the defendant may present evidence relevant to any factor listed in the statute, including factor (k), "the prosecution's case for aggravation is limited to evidence relevant to the listed factors exclusive of factor (k)...." (Ibid.) The prosecutor, however, did not overstep that line in arguing that defendant's evidence under factor (k) *1063 did not excuse his conduct it made it worse. He was merely arguing the lack of weight of defendant's evidence.[15]
I. Excessive Multiple-murder Special-circumstance Findings.
(5b) As previously mentioned, the guilt phase jury was improperly permitted to find two, rather than one, special circumstances based on multiple murder. It was also error for the penalty jury to consider those findings as two aggravating factors. We have repeatedly held that the consideration of such excessive multiple-murder special-circumstance findings where, as here, the jury knows the number of murders on which they were based, is harmless error. (People v. Kimble, supra, 44 Cal.3d at p. 504; People v. Allen, supra, 42 Cal.3d at pp. 1281-1283.)
J. Double-counting of Guilt Phase Crimes and Special Circumstances Under Factors (a) and (b).
(16) Defendant argues that the court had a sua sponte duty to instruct the jury that the crimes for which he was convicted during the guilt phase and the special circumstances found to be true were to be considered in aggravation only under factor (a) (§ 190.3, factor (a) ["The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true"]) and not also under factor (b) (§ 190.3, factor (b) ["presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence"]). He points to the fact that the prosecution argued the Booher kidnapping and the Donner-Lucchesi assaults in aggravation under factor (b), thus making it possible that the jury considered them under both factors (a) and (b) and to have given them an improperly inflated aggravating effect.
In People v. Miranda, supra, 44 Cal.3d 57, we stated that to avoid any possible confusion trial courts in the future should instruct capital sentencing juries that factors (b) (violent criminal activity) and (c) (prior felony convictions) refer to crimes other than those underlying the guilt determination. (Id. at p. 106, fn. 28.) We do not believe that the absence of such an instruction here caused any confusion. Although the prosecutor did argue for consideration of the Booher kidnapping and Donner-Lucchesi assaults *1064 under factor (b), he did not suggest to the jury that the crimes should be counted twice. Thus, we find no reasonable possibility that the jury was misled.
K. Consideration of Non-extreme Mental or Emotional Disturbance.
Defendant argues that the court's instructions precluded the jury from considering any mental or emotional disturbance which he might have been suffering at the time of the offenses unless it was "extreme." (See § 190.3, factor (d).) He claims that both Dr. Leifer and Lynn Woodward testified to defendant's tendency to episodes of explosive hostility, and that the jury should have been instructed that they could consider such a condition even if it did not amount to "extreme mental or emotional disturbance" under factor (d).
(17) We have held that the factor (k) instruction (factor (j) under the 1977 law) to consider "`any other circumstance which extenuates the gravity of the crime' [citation], ... is sufficient to permit the penalty jury to take into account a mental condition of the defendant which, though perhaps not deemed `extreme,' nonetheless mitigates the seriousness of the offense." (People v. Ghent, supra, 43 Cal.3d 739, 776.) This is particularly true in this case, where the jury received an expanded factor (k) instruction.[16]
L. Alleged Ramos Error.
(18) After the jury received its instructions, one juror asked the court whether the penalty of life imprisonment without the possibility of parole meant "no parole ever? Or, I mean, could he ever come up for parole, as sometimes it happens?" The court answered: "The law provides for life imprisonment without possibility of parole. That's the way the statute reads."
Defendant contends that the court committed reversible error under People v. Ramos (1984) 37 Cal.3d 136 [207 Cal. Rptr. 800, 689 P.2d 430], by not admonishing the jury in response to the above-quoted question "not to speculate about how some future Governor might act" in defendant's case. We disagree.
*1065 In Ramos, this court held that the "Briggs Instruction," informing capital sentencing juries about the Governor's power to commute a sentence of life imprisonment without possibility of parole to one that would include the possibility of parole, violated state constitutional guaranties of due process because of its one-sided reference to the commutation power. (37 Cal.3d at pp. 153-155.) Moreover, we held that even an instruction referring to the Governor's power to commute both a sentence of death and one of life imprisonment without possibility of parole would violate the state Constitution, because it would invite the jury "to consider matters that are both totally speculative and that should not, in any event, influence the jury's determination." (Id. at p. 155.)
Defendant is correct that this reasoning, which was based on our decision in People v. Morse (1964) 60 Cal.2d 631 [36 Cal. Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810], applies equally to parole as it does to commutation. (See Ramos, supra, 37 Cal.3d at pp. 155-156.) However, no instruction was given below which could have misled the jury with regard to defendant's future eligibility for parole or indeed for any other modification of sentence.[17]
Defendant argues that the the trial court was under an obligation to admonish the jurors that, while the Governor can commute any sentence to include the possibility of parole, they were not to consider the possibility of commutation or parole in determining the sentence. (Ramos, supra, 37 Cal.3d at p. 159, fn. 12.) We find that in the absence of any reference to the commutation power by the jury, however, such an admonition would have been in clear violation of Ramos. Rather the court's response was correct, and cannot have left the jury with any doubt that the term "without possibility of parole" meant anything but "without possibility of parole."
M. Sentencing Discretion.
(19) The court instructed the jury in the language of former CALJIC No. 8.84.2, with certain additions: "I have previously read to you the list of aggravating circumstances which the law permits you to consider, if you find any of them is established by the evidence. These are the only aggravating circumstances that you may consider. [¶] You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case. [¶] In deciding penalty, the law does not forbid you from being influenced by pity for Mr. Caro. However, the law does forbid you from being governed by mere conjecture, prejudice or public opinion. [¶] In weighing the aggravating and mitigating factors, you are not to merely count numbers on either *1066 side. You are instructed rather to weigh and consider the factors. One mitigating circumstance or aggravating circumstance may be sufficient to support a decision as to which is the appropriate punishment in this case. [¶] The weight you give to any factor is for you individually to decide.... [¶] After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. [¶] If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances you shall impose a sentence of confinement in the state prison for life without possibility of parole."
In People v. Brown (1985) 40 Cal.3d 512, 538-545 [220 Cal. Rptr. 637, 709 P.2d 440] (revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934]), we upheld the 1978 death penalty statute against a challenge that it withdrew constitutionally compelled sentencing discretion from the jury. We observed that "the word `weighing' is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary `scale,' or the arbitrary assignment of `weights' to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider.... By directing that the jury `shall' impose the death penalty if it finds that aggravating factors `outweigh' mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the `weighing' process, he decides that death is the appropriate penalty under all the circumstances." (40 Cal.3d at p. 541.) We acknowledged, however, that the words "shall impose a sentence of death" left room for confusion and stated that each case must be considered on its own merits to determine whether the jury "may have been misled to defendant's prejudice about the scope of its sentencing discretion under the 1978 law." (Id. at p. 544, fn. 17.)
In this case, we find no reasonable possibility that the jury may have been misled about the scope of its sentencing discretion. The court's supplementation of CALJIC No. 8.84.2 insured that the jury was properly informed of its sentencing discretion and responsibility, and the prosecutor's argument did not divert the jury from this proper understanding. The jury's request, after deliberating eight hours over a two-day period "May we reconvene at 9:00 a.m. in the courtroom and have the judge repeat his instructions as to the law if we find preponderance of evidence on aggravating or mitigating side" does not reveal a fundamental misunderstanding of its sentencing *1067 discretion. In our view, it cannot reasonably be interpreted as anything more than a simple request for repetition of the instructions on weighing aggravating and mitigating circumstances.
N. Mercy.
(20) Defendant argues that the judgment must be reversed because the jury was not instructed that it had "the power to exercise mercy" in its sentencing discretion. The argument fails. The jury was instructed that it could consider sympathy, and counsel did not contradict this instruction. The jury also received an expanded factor (k) instruction, commending to its consideration specific aspects of defendant's character and background as shown by the evidence. Defendant contends that there is a crucial difference between pity, sympathy, and mercy, inasmuch as the first two are sentiments whereas the third implies action. We do not agree, however, that instructions to consider various factors, including sympathy for the defendant, could leave a jury with any ambiguity as to its power and duty also to act on such considerations. (People v. Melton, supra, 44 Cal.3d 713, 760.)
O. Motion for Modification of Sentence.
In its statement of reasons for upholding the death verdict under section 190.4, subdivision (e), the court twice referred to defendant's lack of remorse in connection with the killings.[18] Defendant contends that this indicates the court improperly considered a nonstatutory aggravating factor and that the case should be remanded for a reconsideration of that determination.
In People v. Ghent, supra, 43 Cal.3d 739, 771 and other recent cases (e.g., People v. Miranda, supra, 44 Cal.3d at pp. 111-112; People v. Dyer (1988) 45 Cal.3d 26, 82 [246 Cal. Rptr. 209, 753 P.2d 1]; People v. Odle (1988) 45 Cal.3d 386, 422 [247 Cal. Rptr. 137, 754 P.2d 184]) we have considered and *1068 rejected the contention that consideration of a defendant's lack of remorse is error. We adhere to those decisions here.
P. Constitutionality of the 1978 Statute.
Defendant contends that the 1978 Briggs death penalty statute violates the Eighth and Fourteenth Amendments to the United States Constitution by its lack of standards to "guide, regularize, and make rationally reviewable the process for imposing a sentence of death." (Woodson v. North Carolina (1976) 428 U.S. 280, 303 [49 L.Ed.2d 944, 960, 96 S.Ct. 2978].) Specifically, he asserts that the statute is deficient for want of the following safeguards: (1) specific and objective enumeration of aggravating and mitigating factors to guide the penalty jury; (2) exclusion of nonstatutory unspecified aggravating factors as a basis for the death penalty; (3) a requirement that the prosecution prove the existence of any aggravating factors beyond a reasonable doubt; (4) a requirement of penalty jury unanimity regarding any aggravating factors found in support of a death sentence; and (5) a requirement that the jury find beyond a reasonable doubt that aggravating circumstances outweigh mitigating and that death is the appropriate penalty. We have previously upheld the statute against challenges on all these grounds. (People v. Howard, supra, 44 Cal.3d 375, 444; People v. Rodriguez (1986) 42 Cal.3d 730, 777-779 [230 Cal. Rptr. 667, 726 P.2d 113].)
Q. Proportionality of Sentence.
(21) Defendant contends he should be given proportionality review on both an intracase and intercase basis. We have held in numerous cases that intercase proportionality review is not required. (See, e.g., People v. Allen, supra, 42 Cal.3d at pp. 1285-1288; People v. Howard, supra, 44 Cal.3d at pp. 444-445.) As to intracase review under People v. Dillon (1983) 34 Cal.3d 441 [194 Cal. Rptr. 390, 668 P.2d 697], defendant gains no support from that case. The facts of defendant's case bear no similarity to the circumstances in Dillon, where an immature 17-year-old defendant, who shot and killed his victim out of fear and panic, was sentenced to life imprisonment despite the view of the judge and jury that the sentence was excessive in relation to his true culpability. (34 Cal.3d at p. 487.) Defendant here committed two senseless and cold-blooded murders of youths who were complete strangers and no threat to him. The situation is in no way comparable to that in Dillon.
IV. CONCLUSION
One of the multiple-murder special-circumstance findings is vacated, and the judgment is affirmed in all other respects.
*1069 Lucas, C.J., Mosk, J., Arguelles, J., Eagleson, J., and Kaufman, J., concurred.
Broussard, J., concurred in the judgment.
Apellant's petition for a rehearing was denied December 1, 1988, and the opinion was modified to read as printed above.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] The court followed the procedure set out in section 1089, which provides in pertinent part that in the selection of alternate jurors "the prosecution and the defendant shall each be entitled to as many peremptory challenges ... as there are alternate jurors called."
[3] This is the logical corollary of the long-held rule that a party objecting to errors in the jury selection process must exhaust all available peremptory challenges in order to preserve the objection for appeal. (People v. Winthrop (1897) 118 Cal. 85, 88 [50 P. 390]; People v. Estorga (1928) 206 Cal. 81, 85-87 [273 P. 575]; People v. Hernandez (1979) 94 Cal. App.3d 715, 719 [156 Cal. Rptr. 572].)
[4] In People v. Shirley (1982) 31 Cal.3d 18 [181 Cal. Rptr. 243, 641 P.2d 775], this court ruled inadmissible the testimony of any nondefendant witness who has been hypnotized for the purpose of restoring his or her memory of the events in issue, and that the prejudicial effect of erroneous admission of such testimony is to be judged under the "reasonable probability" test of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. In People v. Guerra (1984) 37 Cal.3d 385 [208 Cal. Rptr. 162, 690 P.2d 635], we held that Shirley was to be applied retroactively.
[5] The only theory of first degree murder on which the jury was instructed was premeditation and deliberation. The instruction was in the words of CALJIC No. 8.20 (1979 rev.) as follows: "All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
"The word `willful' as used in this instruction means intentional.
"The word `deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word `premeditated' means considered beforehand.
"If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
"The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
"The true test is not the duration of time but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include[s] an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
"To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice, and having in mind the consequences, he decides to and does kill."
[6] The court had granted defendant's motion for separate guilt phase and penalty phase juries.
[7] The jurors were instructed that, in order to consider the evidence of either one of these murders in aggravation, they must find beyond a reasonable doubt that defendant had committed it, and their finding must be unanimous. At the end of their deliberations, they reported, on the special verdict forms provided, that they did not unanimously find beyond a reasonable doubt that defendant had committed either of the killings.
[8] The United States Supreme Court consolidated two cases, McGautha v. California and Crampton v. Ohio, under the McGautha caption, supra. The challenge to Ohio's unitary trial system was raised by the Ohio petitioner.
[9] This oral amendment was duly followed by a written notice filed on November 24.
[10] Evidence Code section 721, subdivision (a) provides in pertinent part that "a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his qualifications, (2) the subject to which his expert testimony relates, and (3) the matter upon which his opinion is based and the reasons for his opinion."
[11] Defendant does not seek protection here under the psychotherapist-patient privilege (Evid. Code, § 1014), nor would he find any in light of the "client-litigant" exception of Evidence Code section 1016 (no psychotherapist-patient privilege where communication is relevant to patient's mental state and patient has put such state in issue). The attorney-client privilege (Evid. Code, § 954), however, does attach to a defendant's communications to a psychiatrist assisting the defendant's attorney, and this is true whether or not the defendant puts his or her mental state in issue at trial. (People v. Lines (1975) 13 Cal.3d 500, 514 [119 Cal. Rptr. 225, 531 P.2d 793]; City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227 [231 P.2d 26, 25 A.L.R.2d 1418].)
[12] Evidence Code section 912, subdivision (a) provides in pertinent part that "the right ... to claim a privilege provided by Section 954 (lawyer-client privilege) ... is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure...."
[13] The prosecution's exact statements were: "Down to the age of the defendant, and that would be either way. I would argue that if we had a very young defendant here, never had any chances in his life, even though this is pretty big trouble to be in, that would be a mitigating factor for sure. [¶] On the other hand, I would submit to you that you have a defendant, certainly old enough to know better, certainly has lived through enough things and had enough experiences and what-not to know the consequences of his actions, certainly has had chances already to screw up and then make good again, and he did a fair job of it for about twenty-six months. [¶] I submit to you that's an aggravating factor here, but again for you to determine."
[14] The prosecutor argued at length that the testimony of the licensed clinical social worker, Lynn Woodward, about the effect defendant's deprived and abusive upbringing should be given little weight due to its selective character. He then stated: "The real tragedy ... in the defendant's background, the real tragedy is that all these opportunities, that is the opportunity to go to college If you noticed it on his application somewhere to college, told about how he became aware of minorities funding, stuff like that. He took advantage of it, apparently. And the opportunity to learn to fly in the Marines, things like that. A lot of hard work that goes into that, but definitely a good opportunity. [¶] The real tragedy is all those opportunities that society gives or holds out for a person who is willing to work hard enough for them were wasted. It's almost as big a tragedy for society that the defendant wasted those opportunities as it is that he deprived society of two possibly very useful members of society in killing Mark Hatcher and Mary Booher. [¶] Ladies and gentlemen, is that mitigating? Did he have the opportunity first to go to college and then failed in that, and then to be in the Marines and then failed in that? And then after prison, the training and what-not and job when he got out, and he failed in that. He threw them all away. [¶] Does that make you feel sorry for him? Does that make you feel sorry for society? Does that extenuate the gravity of these crimes? I submit to you, no, it doesn't. It makes it even worse."
[15] Defendant argues additionally that the prosecution committed Davenport error by arguing "in effect" that the absence of evidence under factors (d) and (f) constituted evidence in aggravation. (People v. Davenport (1985) 41 Cal.3d 247 [221 Cal. Rptr. 794, 710 P.2d 861].) This argument finds no support in the record, which shows the prosecution argued as to these factors merely that the jury would have to determine whether or not the evidence presented was mitigating.
[16] In this pre-Easley case (People v. Easley, supra, 34 Cal.3d 858), the court supplemented the statutory factor (k) language as follows: "Any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime, including but not limited to any of the following circumstances: The defendant's childhood, upbringing, education and military accomplishments, conduct while serving prior prison term, participation in community service. And then any other extenuating circumstances relating to his family including his relationship with his children and former wife."
[17] Though the case was tried prior to Ramos, the trial court omitted the Briggs Instruction.
[18] Specifically, the court made the following findings: "When you go further, you consider the special findings of the jury in connection with the events there shown, it indicates to me that there has been never been any remorse that I could see shown by your client, counsel, in connection with this case. At every opportunity, he's sought to escape. First at the time of the arrest, and then the summer when he was here. And the last time during the trial, I believe it was. [¶] The court finds that the jury verdict was the proper verdict under the evidence and the law and I do uphold the jury's findings in this case and direct the clerk to enter upon the minutes that the court finding [sic] the aggravating circumstances outweigh the mitigating circumstances[; t]hat the killing of the two teenagers in the Fresno case was unprovoked, was cold blooded murder[; t]hat the defendant has shown no remorse, that he intended to kill the two persons involved in the hit-and-run accident, and it was evident that after one man had been shot, the defendant went over and shot him again. It is only a miracle that that man is alive." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366029/ | 167 Ga. App. 11 (1983)
305 S.E.2d 830
CLEMENTS et al.
v.
LONG et al.
65468.
Court of Appeals of Georgia.
Decided June 16, 1983.
Robert H. Reeves, for appellants.
Benjamin F. Easterlin IV, for appellees.
McMURRAY, Presiding Judge.
This is a wrongful death action. Summary judgment was granted in favor of defendants.
On April 18, 1981, Billy Earl Clements was a passenger in a pickup truck owned by James Emmett Long and Mavis Stevens Long, d/b/a Long's Welding and Machine Shop, being driven by John G. Long. John G. Long was the son of the above persons (albeit emancipated age 36) but was an employee of the machine shop and was driving with the express consent and knowledge of said owners, his mother and father. The pickup truck was provided to John G. Long for purposes of going to and from work and making service calls on behalf of the business and his personal purposes. On the date in question Billy Earl Clements was a guest passenger in the truck being driven by John G. Long when the driver attempted and did elude certain police officers attempting to stop him (the officers having wrecked the police car). However, either shortly before or after the police car wrecked John G. Long lost control of the pickup truck, and Billy Earl Clements was killed when he was thrown from the vehicle. John G. Long made an admission against his interest to the divorced wife of the decedent that "he lost control of the truck and that he was just so involved in driving the truck and maintaining ... control that he just couldn't he didn't know what happened. It just happened so fast . . ."
The ex-wife, as next friend and natural guardian of the two children of herself and the decedent, Billy Earl Clements, brought an action in three counts against the defendants John G. Long, James Emmett Long and Mavis Stevens Long, d/b/a Long's Welding and Machine Shop. Plaintiffs' complaint alleges that the death of Billy Earl Clements resulted from the negligence of the driver of the vehicle, defendant John G. Long. The complaint contends that the other defendants are liable on theories of respondeat superior and the family purpose car doctrine. Both John G. Long and James Emmett Long were served and separately answered the complaint admitting the above circumstances and facts surrounding the death of Billy Earl Clements. However, Mavis Stevens Long was not served and is not a party to this action. In addition, the defendants in their separate answers each admitted in paragraph 5 that the defendant John G. Long was driving the vehicle "in a negligent manner" on the date in question and "by his negligence did cause said vehicle to overturn resulting in the death of Billy Earl Clements, deceased." Notwithstanding that they admitted the above they then in their answer sought to neither admit nor deny this averment "for lack of *12 sufficient information to form a belief as to the truth thereof." Each also added a defense of assumption of the risk by the decedent and that his death resulted from the known danger of the manner in which defendant John G. Long was driving the vehicle, the same being imputable to the plaintiffs. Another defense was that the death of plaintiffs' decedent was the result of comparative negligence, that is, his negligence was greater than any negligence of the defendant John G. Long, the same being imputable to the plaintiffs.
After discovery the defendants filed their motion for summary judgment. In support of this motion, by affidavit, John G. Long deposed much of the above facts that he had possession, as an employee, of the truck owned by the machine shop which was provided to him for purposes of going to and coming home from work and for making service calls away from the business establishment being "often required to perform services out in the county or in surrounding towns," having permission to utilize this truck for personal use but the sole basis for the possession of the truck was the furtherance of the business. On the evening prior to the decedent's death he and the decedent met at an establishment and at approximately 3:00 a. m. on April 18, 1981, left the establishment together and he was driving the pickup truck when he noticed police officers following them. He told the passenger "we might as well try to outrun them." The decedent replied to him, "he would do whatever I wanted to do, that he would go along with my suggestion, and he encouraged me to go faster," that he encouraged me "to go as fast as I could and ... that he was with me all the way," acknowledging "to me his awareness that I was going to travel at a high speed in an attempt to outrun the police before I began to do so." Affiant further deposed that decedent "did not attempt to warn me against any hazard from traveling at a high rate of speed... did not ask me not to speed, nor did he attempt to stop me from doing so," and "did not ask me to let him out of the vehicle before I began speeding; rather he stated his willingness to go along with me." He then added "I lost control of our vehicle and we wrecked." He then added that at no time during the events of this incident was he performing any services on behalf of the business or furthering the business in any way, his activities being "totally personal and completely unrelated" to his employment. Summary judgment was then granted in favor of the defendants, and plaintiffs appeal. Held:
1. "Issues of negligence, including the related issues of assumption of risk, lack of ordinary care of one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the *13 defendant, but must be resolved by a trial in the ordinary manner." Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178). See also Malin v. Jaggers, 134 Ga. App. 806 (216 SE2d 666), citing Wakefield v. A. R. Winter Co., supra. It is further stated in Wakefield v. A. R. Winter Co., supra, at page 260, that even where there is no dispute as to the facts it is, however, "usually for the jury to say whether the conduct in question met the standard of the reasonable man," citing and quoting textbook law and that questions necessitating a decision as to whether a given state of facts shows the lack of ordinary care for one's own safety which will bar recovery (assumption of the risk cases), or comparative negligence which will reduce recovery, are generally for the jury, citing Stukes v. Trowell, 119 Ga. App. 651 (168 SE2d 616) and McCurry v. Bailey, 224 Ga. 318 (162 SE2d 9), revg. Bailey v. McCurry, 117 Ga. App. 100 (159 SE2d 425).
In the case sub judice the defendant driver has in one breath admitted (in the pleadings) his negligence and then seeks to deny same as lacking sufficient information. He then made certain admissions against interest (prior to suit) to the divorced wife of decedent (mother of plaintiff children) that he had lost control of the truck and he was just so involved in the driving and maintaining control that he just couldn't or didn't know what happened, that it "just happened so fast." Now after deliberation and being sued he seeks to establish in his testimony by affidavit that the decedent assumed all the risk of attempting to elude the police officers and was willingly a participant in this activity and the resulting wreck due to his loss of control of the vehicle and that this defendant was at all times on his own personal mission and not in any wise driving the vehicle in furthering the business in any way.
Notwithstanding the above evidence these defendants have made certain admissions by their answers to the complaint and testimony which conflicts with a presumption and testimony offered in support of the motion for summary judgment.
We note here that the interest of a witness in the result of a suit may always be considered in passing upon his credibility where there are circumstances inconsistent with his testimony. Chaffin v. Community Loan &c. Co., 67 Ga. App. 410 (20 SE2d 435). Further, the interest of a witness in a suit may always be considered, and his credibility therein is a matter for the jury's determination. Hall v. Turner, 198 Ga. 763, 764 (2), 772 (32 SE2d 829). In such situations as here the jury are the exclusive judges of the credibility of witnesses. Rome R. Co. v. Barnett, 94 Ga. 446, 447 (5) (20 S.E. 355). Clearly as to the defendant driver, in the cases cited above, this case remains for jury determination as to where the preponderance of the evidence *14 will lie, that is, after considering all the facts and circumstances, including the witnesses' manner of testifying, their means and opportunity for knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest and their personal credibility. See OCGA § 24-4-4 (formerly Code § 38-107). See also in this connection Sparks v. Porcher, 109 Ga. App. 334, 342 (136 SE2d 153); Evans v. Caldwell, 45 Ga. App. 193 (163 S.E. 920); Higdon Grocery Co. v. Faircloth, 107 Ga. App. 558 (130 SE2d 760); Peacock v. Sheffield, 115 Ga. App. 116, 120-121 (2) (153 SE2d 619). Under the circumstances here we are unable to hold as a matter of law that the guest passenger was afforded a reasonable opportunity to take appropriate action to avoid being killed with reference to his opportunity to save himself from the wantonness or carelessness of the host driver. The court erred in granting summary judgment for the defendant driver. See Smith v. Harrison, 92 Ga. App. 576 (4), 580-581 (89 SE2d 273); Hennon v. Hardin, 78 Ga. App. 81, 83-84 (50 SE2d 236); Peacock v. Sheffield, 115 Ga. App. 116, supra.
2. We are next concerned with the issue of respondeat superior and the family purpose car doctrine in the driving of the pickup truck by John G. Long, the vehicle being owned by his father, James Emmett Long in partnership with his mother, Mavis Stevens Long, who was not served. The defendant John G. Long by affidavit gave positive and uncontradicted testimony that he was age 36 years, residing separately with his wife from his parents and was self-supporting. However, we are not faced with a presumption with reference to the family purpose car doctrine that we are with reference to the principle of respondeat superior. This evidence is clearly positive and uncontradicted that he was not a member of his mother and father's household.
Where a vehicle is involved in a collision and the automobile is owned by a person, and the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision and the burden is then on the defendant employer to show otherwise. See West Point Pepperell v. Knowles, 132 Ga. App. 253, 255 (208 SE2d 17); Dawson Motor Co. v. Petty, 53 Ga. App. 746 (186 S.E. 877); Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186). But despite the language of OCGA § 24-4-4 (Code Ann. § 38-107) that the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, the probability or improbability of their testimony and interest or want of interest and their personal *15 credibility insofar as the same may legitimately appear from the trial, the Supreme Court of Georgia in Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 779, 783, supra, has held that even if a witness having an interest in the outcome of the case gives direct and positive testimony which is not in itself incredible, impossible or inherently improbable even on summary judgment such testimony can overcome the presumption that the employee was in the scope of his employment at the time of the collision. This is true, unless his testimony that at the time in question he had possession of the vehicle for the sole basis of "furtherance of the business" in that he was "often required to perform services out in the county or in surrounding towns" meets the criteria set forth in Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, supra, at page 783, as being "subject to call at any time," from which a jury could legitimately infer that he was serving in some way to prosecute the employer's business by having the vehicle in his possession at all times, being in some degree evidence that he was thus furthering the master's business in some manner. Accordingly, in the case sub judice we must hold that despite the clear, positive and uncontradicted evidence of the employee here that the defendant employee was on a purely personal mission at the time of the collision, the trial court erred in granting summary judgment to the employer defendant as the presumption has not been overcome. See also in this connection Massey v. Henderson, 138 Ga. App. 565, 566-568 (226 SE2d 750), affd. s.c., 238 Ga. 217 (232 SE2d 53). Compare Evans v. Dixie Fasteners, 162 Ga. App. 74 (290 SE2d 172). The Supreme Court has set forth that in such situations involving the master-servant relationship there must be some "other fact" that the employee was acting within the scope of his employment to create an issue of fact for the jury when there is uncontradicted testimony that the employee was not acting within the scope of his employment. The "other fact" is therefore still present as to the master. See Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 778-783, supra.
Judgment reversed. Shulman, C. J., and Birdsong, J., concur in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366030/ | 167 Ga. App. 233 (1983)
305 S.E.2d 840
WEST et al.
v.
DORSEY et al.
65727.
Court of Appeals of Georgia.
Decided June 16, 1983.
Rehearing Denied June 30, 1983.
Durwood T. Pye, for appellants.
*240 Michael C. Ford, for appellees.
BIRDSONG, Judge.
In 1973, the Wests lent the Dorseys $9,700 at 9% interest per annum. The loan was secured by second security deeds. The Dorseys made some payments on the loan and then defaulted.
Subsequent developments in the case are set forth in West v. Dorsey, 248 Ga. 790 (285 SE2d 703); Dorsey v. West, 161 Ga. App. 253 (289 SE2d 827); Dorsey v. West, 159 Ga. App. 274 (283 SE2d 314). The gist of those proceedings is that because the Wests had charged 9% interest at a time when maximum allowable simple interest rate was 8%, the loan was usurious. The penalty extracted from the Wests for their usury was the forfeiture of the entire principal and interest, and the return to the Dorseys of any payments made by them on the *234 loan. See Dorsey v. West, 159 Ga. App. 274, supra, which reversed the trial court's judgment in favor of the Wests.
Ultimately, this court at 161 Ga. App. 253, 254, on February 12, 1982, remitted the case to the trial court with our earlier reversal intact, and with instructions "to enter judgment in favor of the [Dorseys] for the amount paid by them on the indebtedness."
However, the trial court did not, as specifically instructed by this court, enter a judgment for the Dorseys which would have assessed the penalty of forfeiture of principal and interest and return of payments made. Rather, on March 5, 1982, the trial court merely "ordered that the judgment of the Court of Appeals of the State of Georgia in [this] case, be and the same is hereby made the judgment of this court." Thus it remained until August 31, 1982. On that date, the trial court "nunc pro tunc" entered a money judgment order requiring the Wests to pay back the $2,013.81 which the Dorseys had paid on the loan. This order still did not mention a forfeiture of principal and interest against the Wests.
In the meantime, however, the Georgia legislature passed an act effective April 12, 1982, providing in pertinent part: "Notwithstanding the provisions of other laws to the contrary, on loans of $5,000.00 or more, a person . . . or other legal entity may charge ... interest and charges at any actuarial rate and amount and in any manner of repayment agreed upon by the parties for a loan of $5,000.00 or more amount financed, as that term is defined by the federal Truth in Lending Act, if said loan is secured in whole or in part by [second] security deed ... executed by an individual or individuals. The claim or defense of usury by any borrower under this Code section or his successor or anyone on his behalf is prohibited." Ga. L. 1982, pp. 488, 492. This act is now codified at OCGA § 7-4-34.1 (Code Ann. § 57-204.1).
It is contended that if this act is applied retrospectively, all the penalties against the Wests for their usurious loan are wiped out completely, i.e., not "merely . . . ameliorated [but] lifted by subsequent legislation." See Southern Discount Co. v. Ector, 246 Ga. 30, 31 (268 SE2d 621), distinguishing Maynard v. Marshall, 91 Ga. 840 (2) (18 S.E. 403). See also Dorsey v. West, 159 Ga. App. 274, 275, supra (reversed on other grounds in 248 Ga. 790, supra).
The Wests have appealed the August 31, 1982 "nunc pro tunc" judgment against them. This appeal is defended by the appellees Dorsey on the ground that the appeal is untimely because the final judgment of the trial court, on remittitur from this court, was rendered in March 1982, and the August 31 order was merely nunc pro tunc and hence only "related back" to March. See Walden v. Walden, 128 Ga. 126 (57 S.E. 323). If this appeal is timely, it raises *235 interesting questions, which we will address solely upon the status of this case as being one involving a penalty. We will state at the outset that no grounds authorize us to rule that the $2,013.81 money judgment was incorrect as to amount. Held:
1. This appeal is timely. The August 31, 1982 order granting money judgment to the Dorseys was not nunc pro tunc, although it purported to be.
"The meaning of a nunc pro tunc judgment is to enter now a judgment which was rendered and should have been recorded at a previous time. . . . A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered ... but such entry cannot be made to serve the office of . . . supplying non-action on the part of the court.... Where the pleadings present no question that should be submitted to a jury, the judgment may be entered nunc pro tunc, but the entry must be based on some previous judicial act. . . ." (Emphasis supplied.) Davis & Shulman, Georgia Practice & Procedure, § 17-6, pp. 267-268 (4th ed.); and cases cited.
The records and pleadings in this case may disclose without dispute that the Wests had lent the Dorseys $9,700 and that the Dorseys had paid $2,013.81 on the loan, but these facts lay impotent in the record and would do so forever until the trial court made a judgment out of them, as it had been instructed to do. The trial court's remittitur order of March 5, 1982, did not make such a judgment. No execution could be made upon it; it certainly could not be appealed. See Givens v. Gray, 124 Ga. App. 152 (183 SE2d 29). The August 31 order granting the Dorseys a money judgment supplied a non-action and still omitted to enter judgment forfeiting the Wests' principal and interest. This order contained at last something to appeal by either party, if there was any error in it. See Cordele Ice Co. v. Sims, 120 Ga. 428, 431 (48 S.E. 12). The September 15 notice of appeal from the August 31 order was timely.
2. Was the August 31 penalty judgment, giving the Dorseys judgment in the specific amount they had paid on the loan, appealable solely on the basis that a law repealing the penalty had become effective before the direction of this court was complied with? The answer must be yes.
The decisions of the Supreme Court and this court became the law of the case (OCGA § 9-11-60 (h) (Code Ann. § 81A-160)) and were binding upon the trial court. Though the law penalizing the Wests had been changed, we think the trial court was bound to follow the mandate of the Court of Appeals. See White v. Ga. Power Co., 247 Ga. 256, 258 (2) (274 SE2d 565).
If the final appellate decision had been one of affirmance merely, with nothing more to be done below, it would have been a *236 final disposition of the case with no right of review, even if the remittitur was not made the judgment of the trial court. Pearle Optical v. State Board of Examiners, 219 Ga. 856 (136 SE2d 371); Fed. Investment Co. v. Ewing, 166 Ga. 246, 247 (142 S.E. 890). But the ultimate decision of the Court of Appeals was one reversing the trial court and mandating further action by the trial court. Where the appellate decision is a reversal, the case does not stand finally disposed of, but remains in the jurisdiction of the trial court until some further proper action is taken. John A. Roebling's Sons Co. v. Southern Power Co., 145 Ga. 761 (1) (89 S.E. 1075). The cause is still pending for further proceedings, or until what is de facto ordered to be done, by the appellate court's reversal, is done. Berrien County Bk. v. Alexander, 154 Ga. 775, 777-778 (115 S.E. 648); Roebling's Sons Co., supra; Perdue v. Anderson, 137 Ga. 512, 514 (73 S.E. 1050); Davis House, Inc. v. Jennings 112 Ga. App. 185, 186 (144 SE2d 476).
We do not recite the foregoing principles and cases to contradict what was said in Shepherd v. Shepherd, 243 Ga. 253, 254-255 (253 SE2d 696), where the Supreme Court held that on its prior reversal of that case without direction, the reversal was a final disposition. We think there is no conflict in the more ancient principles announced by the Supreme Court and the Shepherd case. The Shepherd case merely forbade a party to circumvent an appellate disposition by improperly amending his allegations. Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 185 (3) (190 S.E. 552). No penalty or forfeiture was involved and no new law lifting the penalty was in issue. Wilson, supra, p. 186 (4).
All these cases are consistent that what the appellate court orders to be done, expressly or implicitly, must in fact be done; but if, on an appellate reversal what is done on remittitur is itself reviewable, there is no final judgment until that time for review has passed. There was no final judgment in this case until the time had passed for review of the trial court's actions upon remittitur from this court's reversal. Calhoun v. State Hwy. Dept., 223 Ga. 65, 67 (153 SE2d 418). The Dorseys had no vested right in the penalty itself, or any part of it (Southern Discount Co. v. Ector, supra). They had no more superior vested right in it merely because it was established by appellate decisions interpreting the penalty statute, where the trial court's first judgment denying the penalty was reversed and there remained more to be done in assessing the entire penalty. The penalty was not made a judgment until August 1982, and was not choate until the time had run for review of the last appealable judgment. See Bank of St. Mary's v. State of Ga., 12 Ga. 475, 493.
In Bank of St. Mary's, supra, p. 481, it was held "a penalty cannot be recovered, after the [repeal] of the law which imposes it..." *237 The whole penalty in this case is forfeiture of all principal and interest as a punishment. See 91 CJS 748, Usury, § 142. There are not two penalties in this case; there is only one. The punishment, forfeiture, necessarily includes the obligation to pay back any payments made on the loan by the borrower. So long as there was no enforceable judgment requiring the Wests to pay back loan payments, there was no "forfeiture of all principal and interest" as a matter of fact. No punishment had been assessed by final judgment until after the penalizing statute was repealed. Bank of St. Mary's, supra, p. 475 (and see pp. 494-495) held, "No judgment can be rendered on a repealed Statute; the repeal prevents the imperfect right from being consummated; and it is competent for the Legislature to pass such repealing Statute at any time before final judgment." (Emphasis supplied.) "Up to that time it was under the control of the law." Bank of St. Mary's, supra, p. 488. "As long as [a party] has a right of exception to any judgment which may have been rendered in such an action, such judgment is not final, and the repeal of the statute deprives the courts of any further jurisdiction of the case." (Emphasis supplied.) Western Union Telegraph Co. v. Lumpkin, 99 Ga. 647 (26 S.E. 74); Fulton County v. Spratlin, 210 Ga. 447 (80 SE2d 780). Where there is a reversal, and where there is more to be done in the case, "[t]he cause is pending just as long as it is litigated, whether in the superior court or in [the appellate court]." Twilley v. Twilley, 195 Ga. 297, 299 (24 SE2d 46); Holleman v. Holleman, 69 Ga. 676.
The trial court has jurisdiction to construe and perform the direction of the appellate court, and its doing so can always be excepted to. Cordele Ice Co. v. Sims, supra. This must be especially true where what is being litigated is a penalty. In taking exception to the penalty judgment, it is not necessary that the Wests prove substantive fault with the amount of the money judgment, or the forfeiture of penalty and interest. OCGA § 5-6-34 (c) (Code Ann. § 6-701). So long as the penalty has not fully and finally been assessed, the Wests can except to it merely on the basis that the law had changed before the penalty was assessed by final judgment and the Dorseys were not entitled to it. Hensel Phelps Constr. Co. v. Johnson, 164 Ga. App. 404, 405 (298 SE2d 261).
The Supreme Court, in City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759), held: "[A] reviewing court should apply the law as it exists at the time of its [this] judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered ... where the law has been changed in the meantime and ... the new law will impair no vested right under the prior law." *238 (Emphasis supplied.)
The judgment under review here is the August, 1982 penalty mandated by this court. This penalty arose not by contract but by the decisions of this court and the Supreme Court under the penal statutes then existing. See Dorsey v. West, 159 Ga. App. 274, supra. But since we adjudged that penalty (a penalty which was inchoate until the trial court by mandate made an operative judgment of it and the time for review had passed), the status of the law has changed. Wilson v. Missouri State Life Ins. Co., supra.
3. But to apply the law as it exists at the time of this appeal (City of Valdosta v. Singleton, supra), we must determine what is the law. Is it the 1966 law in existence when the note was executed in 1973, and when this case previously appeared in the appellate courts? Or is it the law effective April 12, 1982, which abolished the defense of usury and lifted all penalties to certain loans in excess of $5,000 (OCGA § 7-4-34.1 (Code Ann. § 57-204.1))? The new law is applied retrospectively where it impairs no vested rights. City of Valdosta v. Singleton, supra. In Bank of St. Mary's, supra, p. 494, and in Southern Discount Co. v. Ector, supra, the Supreme Court held that a party has no vested right to a penalty or forfeiture granted by law. Nor, as we said in Division 2, should he have any greater right to a penalty or forfeiture adjudged by case law under such a penal statute, where the entire penalty has not been actually assessed by final judgment and is still subject to review.
There is a decided policy at issue here: "The general position [is] that where a Statute creating an offense is repealed by a subsequent Statute... no punishment can be inflicted after the repeal of the first Statute...." (Bank of St. Mary's, supra, p. 481.) A "penalty cannot be recovered after the repeal of the law by which it is imposed" (Bank of St. Mary's, supra, p. 485). The new law under consideration in Bank of St. Mary's, expressly provided for retrospective effect; but Southern Discount Co. v. Ector, supra, specifically held that retrospectivity is not governed by statutory language in this type of case.
The 1966 law under which the Wests forfeit the $9,700 principal and interest, and such amounts as they were able to collect on the indebtedness, was a penal statute egregiously severe. The traditional abhorrence of usury, a good enough object in itself, was overextended, we think, by that and similar statutes and by the cases that construed them, until the Supreme Court's decision in Southern Discount Co. v. Ector, supra, p. 30 (1).
The Supreme Court in 1980 said "Forfeitures and penalties are not favored. Courts should construe statutes relieving against forfeitures and penalties liberally so as to afford maximum relief. *239 Such a construction of the Act does not bring it into conflict with our constitution since a person has no vested rights to a forfeiture or penalty. [Cits.] Cf. Maynard v. Marshall, 91 Ga. 840 (18 S.E. 403) (1893), in which the penalty merely was ameliorated rather than lifted by the subsequent legislation." Southern Discount Co. v. Ector, supra, pp. 30-31.
The distinction governing retrospectivity, as to whether a penalty is "merely ... ameliorated rather than lifted by subsequent legislation," is well taken in this case. The 1982 enactment, OCGA § 7-4-34.1 (Code Ann. § 57-204.1), did not merely ameliorate the penalty, but lifted it entirely, to the point of providing: "The claim or defense of usury by any borrower under this Code section or his successor or anyone on his behalf is prohibited." This is strong language indeed. It indicates a total absence of the traditional abhorrence of usury as to certain loans made upon terms agreed to by the parties. Moreover, it expresses an abhorrence of the practice of certain borrowers who extract money from a lender by agreeing to the terms of the loan but then renege and take advantage of the usury laws to avoid their own contracts and keep the lender's money.
In the face of such strong expression of public policy, it would be unjust to extract from the appellants, while their case is still pending and the full penalty had not finally been assessed, that severe penalty which the Dorseys had no vested, choate right to, and which no longer exists. To do so would, because of an old penal law now in disrepute, violate that "naked and changeless equity which forbids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing: an equity which is natural which savages understand [and] which cultivated reason approves.. ." Culbreath v. Culbreath, 7 Ga. 64, 67.
The 1982 Act lifting the penalty is applied retrospectively. We reverse the judgment of the trial court granting judgment to the Dorseys and de facto forfeiting the Wests' principal and interest, and remand the case for further proceedings not inconsistent with OCGA § 7-4-34.1 (Code Ann. § 57-204.1), including the threshold determination whether this loan is within the class of loans described in that code section.
Judgment reversed. Shulman, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366028/ | 305 S.E.2d 771 (1983)
STATE ex rel. Robert HILL
v.
Honorable Robert K. SMITH, Judge, etc.
No. 15880.
Supreme Court of Appeals of West Virginia.
July 7, 1983.
Dissenting Opinion July 21, 1983.
*772 Michael R. Cline, Allen, Cline & Forbes, Charleston, for relator.
Philip B. Hereford, Charleston, for respondent.
HARSHBARGER, Justice:
Can a municipal deputy clerk in a home rule city issue a valid warrant? Robert Hill, about to be prosecuted on a Charleston city charge for shoplifting, hopes not.
Our constitution provides for Home Rule for Municipalities, Article VI, Section 39(a):
The legislature shall provide by general laws for the incorporation and government of cities.... Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have power and authority to frame, adopt and amend the charter of such corporation, or to amend an existing charter thereof, and through its legally constituted authority, may pass all laws and ordinances relating to its municipal affairs: Provided, that any such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this Constitution or the general laws of the State then in effect, or thereafter, from time to time enacted. (Emphasis supplied.)
Municipalities are therefore entitled to enact charters and local laws and ordinances that are not inconsistent with statutes or the constitution. See also W.Va.Code, 8-1-6.
The constitution provides that the legislature may authorize establishment of municipal courts, and may name officers who can issue and execute writs, warrants and process:
The legislature may provide for the establishment in incorporated cities, towns or villages of municipal, police or mayors' courts, and may also provide the manner of selection of the judges of such courts. W.Va. Const. art. VIII, § 11.
The legislature may designate the courts and officers or deputies thereof who shall have the power to issue, execute or serve such writs, warrants or any other process as may be prescribed by law, and may specify before what courts or officers thereof such writs, warrants or other process shall be returnable. The legislature may also designate the courts and officers or deputies thereof who shall have the power to admit persons to bail. No person exercising such powers shall be compensated therefor on a fee basis. W.Va. Const. art. VIII, § 12.
The legislature has complied with these constitutional directives in W.Va.Code, Chapter 8. In Article 10, it specified the duties of mayor, police court or municipal judge, and recorder. The mayor's powers include:
He shall have jurisdiction to hear and determine any and all alleged violations thereof [of ordinances, orders, bylaws, acts, resolutions, rules and regulations of the municipality's governing body] and to convict and sentence persons therefor.... [P]erform all duties vested by law in a justice of the peace.... Upon complaint he shall have authority to issue a search warrant in connection with the violation of a municipal ordinance. Any search warrant, warrant of arrest or other process issued by him may be directed to the chief of police or any member of the police department.... W.Va.Code, 8-10-1 (in part).
*773 W.Va.Code, 8-10-2, specifies the powers of a police or municipal court judge:
Notwithstanding any charter provision to the contrary, any city may provide by charter provision and any municipality may provide by ordinance for the creation and maintenance of a police or municipal court, for the appointment or election of an officer to be known as police court judge or municipal court judge, and for his compensation, and authorize the exercise by such court or judge of such of the jurisdiction and the judicial powers, authority and duties set forth in section one [§ 8-10-1] of this article and similar or related judicial powers, authority and duties enumerated in any applicable charter provisions, as set forth in the charter or ordinance.
So a city can have a municipal court/police court judge who may have the same judicial powers that a mayor has. A municipal court's and mayor's authority to issue warrants is the same as our magistrates. W.Va.Code, 8-10-1 and 8-10-2. W.Va.Code, 50-2-3 provides that only magistrates may issue criminal arrest and search warrants.
W.Va.Code, 8-10-2 limits the authority to issue warrants to two municipal officers, the mayor and municipal or police court judge. We have used the maxim, expressio unis est exclusio alterius, in finding invalid, city ordinances that went beyond power granted by the legislature. State ex rel. Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970). The legislature had constitutional authority to extend this power to "neutral and detached" clerks, but it did not choose to do so. W.Va. Const. art. VIII, § 12; Shadwick v. Tampa, infra.
Charleston's City Charter provides at § 44:
The municipal judge shall be ex officio a justice and a conservator of the peace, and with authority to issue processes for all offenses committed within the police jurisdiction of the City of Charleston, of which a justice of the peace has jurisdiction under state statutes, and for all violations of any city ordinances, and shall have charge of and preside over the municipal court of such city.... Before trying any person charged with any violation of any state law or ordinance a warrant specifying the offense or violation charged shall be issued as herein provided....
Section 45 sets out qualifications of the municipal judge, and then states:
In the absence of, or in case of the inability of the municipal judge to perform his duties, the municipal court clerk shall act as municipal judge in his stead, and in the event that neither the municipal judge nor the municipal court clerk can for any cause perform such duties, then the mayor shall act as municipal judge.[1]
Section 94 provides:
The municipal judge, mayor, city clerk, municipal court clerk, chief of police, or in the absence of the chief of police, the captains of police and lieutenants of police shall each have authority to issue warrants for all offenses committed within the police jurisdiction of the City of Charleston. Any vacancy in the office of municipal judge shall be filled by appointment by the mayor until the next election.
This provision clearly violates the Fourth Amendment of the United States Constitution, in that it allows police and law enforcement officials to issue warrants. Shadwick v. Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120. See also Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The United States Supreme Court has decided that the person issuing a warrant "must be neutral and detached, and he must be capable of determining *774 whether probable cause exists for the requested arrest or search." Shadwick v. Tampa, 407 U.S. at 350, 92 S.Ct. at 2123, 32 L.Ed.2d at 788. While it is not necessary that the warrant issuer be a lawyer or a judge,[2] the person may not be a law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948). See also State v. Slonaker, W.Va., 280 S.E.2d 212 (1981); State v. Wotring, W.Va., 279 S.E.2d 182, 187-188 (1981); State v. Stone, W.Va., 268 S.E.2d 50 (1980); State v. Dudick, W.Va., 213 S.E.2d 458 (1975). This city charter provision, Section 94, is invalid because it violates our state and federal constitutions, by allowing law enforcement officers to issue arrest warrants. In State ex rel. Sahley v. Thompson, 151 W.Va. 336, 151 S.E.2d 870 (1966), we found a similar municipal charter provision valid. We were wrong, and overrule the Syllabus in that case.[3]
Section 94 has another defect: it extends authority to issue warrants far beyond the two officials specified by statute. Municipalities are legislative creatures and their powers derive directly and solely from those granted to them by state law. Hogan v. South Charleston, W.Va., 260 S.E.2d 833 (1979); Marra v. Zink, W.Va., 256 S.E.2d 581, 584 (1979). Accord, 56 Am.Jur.2d Municipal Corporations § 194; 62 C.J.S. Municipal Corporations §§ 107, 117. Provisions in city charters that are inconsistent with, conflict with or exceed powers granted by the legislature are void. W.Va. Const. art. VI, § 39(a). Accord Rogers v. South Charleston, W.Va., 256 S.E.2d 557 (1979); State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970).
In recodifying the State municipal law in 1969 in order to achieve uniformity in powers granted to municipalities, the Legislature intended that the provisions of the State municipal law should have primacy over conflicting provisions in a municipal charter. W.Va.Code, 8-1-6. Syllabus Point 2, Hogan v. South Charleston, supra.
Any charter provisions or city ordinances that permit municipal employees other than mayors or municipal court judges to issue arrest warrants are invalid. W.Va. Const. art. VII, § 12; art. VI, § 39(a); W.Va.Code, 8-10-1 and 8-10-2. Therefore, Sections 16-4(c)[4] and 16-5[5] of the Charleston City Code also fail to meet these standards because they permit the municipal court clerk and deputy clerks to issue warrants.
Hill was arrested on a warrant issued by the deputy clerk. Because the clerk was without authority to issue warrants, we *775 prohibit any further court proceeding based on that warrant.
Prohibition granted.
MILLER, Justice, dissenting:
I respectfully dissent because I believe that the majority has failed to understand the history and application of the Home Rule for Municipalities amendment to the West Virginia Constitution, Article VI, Section 39(a). This amendment does not foreclose a municipality which has obtained a special charter prior to the adoption of the Home Rule for Municipalities amendment in 1936 from utilizing the provisions of its special charter. The only inhibition is that special charter provisions cannot be utilized if they are inconsistent with our general municipal statutes.
The majority has concluded that Section 45 of the City of Charleston's Charter that authorizes the municipal court clerk to act in the absence of the municipal judge, and Section 94 of its Charter which authorizes the municipal court clerk to issue warrants are invalid because there are no similar provisions in our general municipal statutes. This conclusion would be correct if special charters were abolished or if the Charleston Charter provisions were in conflict with our general municipal statutes. However, special charters have not been abolished nor are the Charter provisions in conflict since the general municipal statutes do not have any contrary provisions.
We addressed the general effect of the Home Rule for Municipalities amendment in Matter of City of Morgantown, W.Va., 226 S.E.2d 900, 903 (1976):
"The Municipal Home Rule Amendment, ratified in 1936, required the Legislature to provide by general law for the incorporation and government of all municipalities. Prior to this constitutional amendment, the Legislature with very limited restriction, was empowered to exercise its absolute power over municipalities through special acts." (Emphasis in original; footnotes omitted)
After the adoption of the Home Rule for Municipalities amendment, the Legislature enacted W.Va.Code, 8A-1-1, et seq. (1937), entitled Municipal Home Rule, which was a comprehensive statute relating to the procedures that municipalities could follow in order to obtain Home Rule powers as set out in Chapter 8A. Under the provisions of W.Va.Code, 8A-1-9 (1937), the existing status of special charter cities was expressly confirmed:
"The corporate being and powers of every city now existing is hereby confirmed. General and special laws and municipal charters in effect upon the adoption of this chapter shall remain in operation and effect unless amended or repealed by a general law hereafter enacted, or until a municipal charter is amended in accordance with article two of this chapter."
In State ex rel. Tucker v. City of Wheeling, 128 W.Va. 47, 35 S.E.2d 681 (1945), we recognized that a special charter city could not claim the powers under the Municipal Home Rule Act unless it had elected to come within it by holding a charter election and adopting Home Rule powers as set out in W.Va.Code, 8A-2-1, et seq. (1937).
In 1969, the Legislature enacted a comprehensive revision of our municipal statutes and we spoke to the scope of this act in Hogan v. City of South Charleston, W.Va., 260 S.E.2d 833, 835 (1979):
"In 1969 the Legislature made an extensive revision of Chapter 8 of the West Virginia Code. One of the principal purposes of our State municipal law set out in W.Va.Code, 8-1-1, was to provide a degree of uniformity to the type of powers granted to municipalities by the Legislature. Prior to 1969, the powers of a given municipal corporation were embodied in several scattered and sometimes conflicting sources, viz., special legislative charters, the general municipal statutes found in former Chapter 8 of the W.Va. Code and powers granted under the home rule provisions of former Chapter 8A of the Code.
"The new State municipal law did not abolish existing municipal charters, *776 W.Va.Code, 8-1-5, but did provide a set of specific interpretive guidelines to resolve conflicts or dissimilarities between the provisions of the new municipal law and existing charter provisions, W.Va. Code, 8-1-6." (Emphasis added; footnotes omitted)
That the 1969 Act did not abolish existing special legislative charters can be seen from the definition of the word "city" in W.Va. Code, 8-1-2(a)(2) (1969):
"`City' is a word of art and shall mean, include and be limited to any Class I, Class II and Class III city, as classified in section three [§ 8-1-3] of this article (except in those instances where the context in which used clearly indicates that a particular class of city is intended), heretofore or hereafter incorporated as a municipal corporation under the laws of this State, however created and whether operating under (i) a special legislative charter, (ii) a home rule charter framed and adopted or revised as a whole or amended under the provisions of former chapter eight-A of this Code or under the provisions of article three [§ 8-3-1 et seq.] or article four [§ 8-4-1 et seq.] of this chapter, (iii) general law, or (iv) any combination of the foregoing." (Emphasis added)
Furthermore, and as discussed in Hogan v. City of South Charleston, supra, the Legislature created a statutory formula under W.Va.Code, 8-1-6 (1969), for classifying and solving potential conflicts between the provisions of old legislative special charters and the provisions of the 1969 Municipal Code of West Virginia. Of particular applicability to the present case is classification number 4 which is: "As to any particular charter provisions, there may be no counterpart of such provisions in this chapter."[1]
In the latter part of this statute, the Legislature has resolved the class four problem as follows:
"As to possibility (4), the charter provisions shall remain in operation and effect until amendment or repealed by general law hereafter enacted or until hereafter supplanted by a new charter or revised as a whole or amended in accordance with the provisions of this chapter."
There is no argument over the fact that our general Municipal Code does not contain any provision relative to the right of a municipal court clerk to issue warrants. The majority ignores the provisions of W.Va.Code, 8-1-6 (1969), and in particular the class four language which would authorize validation of Charleston's special charter provision.
While the United States Supreme Court has held that a person issuing a warrant must be neutral and detached from law enforcement activities, it is clear that a municipal clerk who is not connected to law enforcement can constitutionally perform such functions. This was the unanimous opinion of the United States Supreme Court in Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972), where *777 the Court sanctioned warrants issued by the Clerk of the Municipal Court of Tampa.[2]
The fundamental error of the majority lies in not realizing that Charleston's special charter provision authorizing a municipal court clerk to issue warrants is a valid provision since there is no counterpart under our general municipal statutes.
NOTES
[1] W.Va.Code, 8-10-3 authorizes a municipal recorder to act in a mayor's stead when a mayor is absent or ill. The legislature has not authorized anyone to act in the absence of the municipal judge and, therefore, the municipal clerk may not do so.
[2] Some courts do require the arrest warrant issuer to be a judicial officer. Caulk v. Municipal Court, Del., 243 A.2d 707 (1968); State v. Paulick, 277 Minn. 140, 151 N.W.2d 591 (1967); State ex rel. White v. Simpson, 28 Wis. 2d 590, 137 N.W.2d 391 (1965).
[3] Syllabus, State ex rel. Sahley v. Thompson, supra:
"Article 7, Section 7.6 of the charter of the City of South Charleston delegating to the mayor, city clerk, clerk of the municipal court, chief of police, or, in the absence of the chief of police, the captains and lieutenants of police the authority to issue warrants for offenses in violation of the ordinances of that city is not invalid as in contravention of Article V, Section 1, of the constitution of this state and a warrant for a violation of a city ordinance issued by a lieutenant of police in the absence of the chief of police is valid."
[4] Charleston City Code, § 16-4(c), referring to duties of the municipal court clerk:
"Fines, costs, process and oaths. He shall tax all costs in the municipal court and make out all executions for fines, penalties and costs imposed by the municipal judge, make out and issue all processes of the court and sign them as clerk, and administer oaths."
[5] Charleston City Code, § 16-5:
"The mayor may appoint, within the limit of fund available, one or more deputy municipal court clerks who shall have, in addition to such other duties as may be assigned to them by the municipal court clerk or the municipal judge, the authority to administer oaths to complainants and to issue arrest warrants thereon for all violations of this Code and other municipal ordinances."
[1] The relevant portion of W.Va.Code, 8-1-6 (1969), classifying the potential conflicts is:
"[W]hen the provisions of existing special legislative charters are compared with and are considered in the light of the provisions of this chapter, there are five basic possibilities as to the relationship between such charter provisions and the provisions of this chapter, namely: (1) As to any particular charter provisions, such charter provisions may be inconsistent or in conflict with the pertinent provisions of this chapter; (2) although relating to the same subject matter and although not inconsistent or in conflict with any provisions of this chapter, certain charter provisions may be sufficiently different from pertinent provisions of this chapter as to indicate, as a matter of practical construction, that either the charter provisions or the provisions of this chapter, but not both, should be applicable; (3) although varying in certain respects, certain charter provisions may be similar to and in essential harmony with corresponding provisions of this chapter; (4) as to any particular charter provisions, there may be no counterpart of such provisions in this chapter; and (5) as to any provisions of this chapter, there may be no counterpart charter provisions."
[2] I agree that to the extent that Section 94 of the City of Charleston's Charter authorizes law enforcement personnel to issue warrants, it is unconstitutional and that State ex rel. Sahley v. Thompson, 151 W.Va. 336, 151 S.E.2d 870 (1966), which sanctions this practice, must be overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366042/ | 166 Ga. App. 737 (1983)
305 S.E.2d 465
SMITH
v.
MORICO et al.
66034.
Court of Appeals of Georgia.
Decided May 25, 1983.
R. Wade Gastin, Rowe Brogdon, Jack P. Friday, Jr., for appellant.
R. Stephen Sims, A. Martin Kent, for appellees.
DEEN, Presiding Judge.
Appellant Geneva Smith received injuries to her back and neck of the kind known as "whiplash" when the taxicab in which she was a passenger was struck from the rear by an automobile owned and driven by appellee Morico. She brought an action against the driver of the cab, the owner of the cab company, and appellee Morico, alleging negligence on the part of the two drivers and vicarious negligence on the part of the owner.
At the close of plaintiff's evidence appellee moved for a directed verdict in his favor, on the ground that no evidence of actionable negligence on his part had been adduced. The court granted the motion, thereby dismissing appellee from the main case. The jury subsequently found for the plaintiff against the other two defendants, who are not parties to this appeal. Appellant assigns as error the trial court's award of a directed verdict in favor of appellee Morico. Held:
The record sustains appellee's contention that there was offered at trial no competent evidence of fault on his part. The only evidence presented on this issue was the testimony of appellant Smith herself, who admittedly did not see appellee's oncoming car until after the collision had occurred and who therefore was not competent to testify as to appellee's speed, position on the roadway, or manner of operating his vehicle. Smith did not call the cab driver to testify in this regard and did not object to the court's refusal to allow him to testify because he had failed to file an answer and was therefore in default. Moreover, the cab driver's default was tantamount to admission of the allegations of the complaint, including that, without exercising due care, he drove into the middle lane, where appellee was driving and where the collision occurred. This tacit admission had the effect of tending to exculpate Morico.
Smith thus failed to establish the elements of negligence and thereby to make out a prima facie case against appellee. Plaintiff's evidence suggested only the elements of duty and injury with reference to appellee Morico; nothing was offered to indicate breach of duty or causation on his part. It is axiomatic that "[t]he mere fact that an accident happened and the plaintiff may have sustained injuries or damages affords no basis for recovery against [a particular] defendant unless the plaintiff carries the burden of proof and shows that such accident and ... damages were caused by specific acts of negligence on the part of [that] defendant . . ." Brown v. Kirkland, 108 Ga. App. 651, 655 (134 SE2d 472) (1963). Moreover, *738 "[n]egligence is not to be presumed ... In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence." Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 368 (203 SE2d 587) (1973). While it is true that questions of negligence are ordinarily for the trier of fact, Thompson v. Walker, 162 Ga. App. 292 (290 SE2d 490) (1982), plaintiff here has failed to establish any relationship between the collision and the conduct of appellee beyond the fact that his car was involved. Where "[p]laintiff simply fail[s] to prove his case ... the direction of a verdict [is] proper... The mere existence of conflicts in the evidence does not render the direction of a verdict erroneous if it was demanded, either from proof or from lack of proof on the controlling issue or issues." Carr v. Jacuzzi Bros., 133 Ga. App. 70, 74 (210 SE2d 16) (1974); Wagner v. Timms, 158 Ga. App. 538 (281 SE2d 295) (1981); OCGA § 9-11-50 (Code Ann. § 81A-150).
The trial court did not err in directing a verdict for appellee.
Judgment affirmed. Banke, Birdsong, Sognier and Pope, JJ., concur. Shulman, C. J., Quillian, P. J., McMurray, P. J., and Carley, J., dissent.
CARLEY, Judge, dissenting.
I cannot agree with the majority that the trial court correctly directed a verdict in favor of the defendant in this rear-end collision case. At the heart of the majority's conclusion that this is one of the rare cases wherein the submission to the jury of the issues of negligence and contributory negligence is not warranted, is the majority's statement that "the record sustains appellee's contention that there was offered at trial no competent evidence of fault on his part." My review of that same record compels me to reach the opposite conclusion. I do agree with the majority that "the only evidence presented on this issue was the testimony of appellant Smith herself, who admittedly did not see appellee's oncoming car until after the collision had occurred . . ." However, this true statement does not necessarily support the majority's following analysis that the appellee "therefore was not competent to testify as to appellee's speed, position on the roadway, or manner of operating *739 his vehicle". While there was no direct testimony in this regard, the appellant did testify that the taxi cab, in which she was a passenger, pulled out onto the roadway and that the roadway was clear and unobstructed at that time. Appellant also stated that the taxi cab attained a speed of 35-40 miles per hour, was not slowing down, and so proceeded down the highway for a quarter of a mile when suddenly and without warning, "it hit so hard I hit the front seat of the cab first, then I came back and I hit the back of the cab." The appellant further testified that after she got into the ambulance with defendant driver, she smelled a strong odor of alcohol coming from the defendant.
"The evidence here was in conflict as to how the collision occurred other than that it was a rear-end collision, after the [taxi cab] drove into the traffic on the [roadway . . .;] and in particular as to the amount of traffic on the [road], as to the movement or speed of the various vehicles, and as to whether or not the [taxi cab driver] or the defendant exercised ordinary care and diligence the [taxi cab driver] in entering traffic ahead of the [defendant's car] which then collided with the vehicle [containing] plaintiff; and the defendant driver in controlling his vehicle to avoid the collision. Clearly, as was stated in Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (although the verdict was there directed for the plaintiff as shown in Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga. App. 362 (218 SE2d 36)), `[i]n rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause ... [and] ... these issues should be resolved, . . . by the jury and not by trial and appellate judges.' The trial court erred in directing the verdict against the plaintiff in favor of the defendants." Jenkins v. Lampkin, 145 Ga. App. 746, 747 (244 SE2d 895) (1978). It is my opinion from a review of the instant record that, as in Jenkins, the trial court in this case incorrectly withdrew the controlling issues from consideration by the jury, and that the direction of a verdict for appellee was error. Accordingly, I must respectfully dissent.
I am authorized to state that Chief Judge Shulman, Presiding Judge Quillian and Presiding Judge McMurray join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366049/ | 761 P.2d 1375 (1988)
Richard A. CHRISTENSON, Trustee for Cape Trust, Plaintiff and Appellant,
v.
J. Paul JEWKES and Lorna Jewkes, Defendants and Appellees.
No. 19984.
Supreme Court of Utah.
August 25, 1988.
*1376 Scott W. Cameron, Salt Lake City, for plaintiff and appellant.
H. Hal Visick, Provo, for defendants and appellees.
STEWART, Justice:
The plaintiff, Cape Trust, appeals a judgment entered on a jury verdict in favor of the defendants, J. Paul and Lorna Jewkes, in an action for a deficiency judgment pursuant to Utah Code Ann. § 57-1-32 (1986), following a nonjudicial trust deed sale of undeveloped real property.
The defendants owed $264,000 on a loan made by the plaintiff. The plaintiff commenced this action seeking a deficiency judgment for $109,000, which was owed after a nonjudicial sale of 38.78 acres of undeveloped property which secured the loan. The plaintiff purchased the property at the trustee's sale for $100,000. The complaint alleged that, according to Cape Trust's appraisal, the market value of the property was $155,000 or $4,000 per acre.[1] Subsequent to filing the complaint, the plaintiff made various discovery requests in September and November, 1983, and in February, 1984. The defendants answered the September and November requests; they did not answer the February, 1984 request.
At a January 13, 1984 pretrial conference, the court set the case for trial on March 13, 1984, and ruled that discovery could continue up to ten days before trial. The pretrial order stated that neither unfinished discovery nor failure to discover would be grounds for continuance of the trial date.
On March 8, 1984, five days before trial, the defendants informed the plaintiff that they intended to call as an expert witness Mr. Gerald Higgs, an appraiser who would testify concerning the fair market value of the property, which he had determined to be approximately $685,000, or $17,700 per acre. The defendants' counsel offered to make this witness available to the plaintiff's counsel despite the expiration of the discovery period.
The day before trial, the defendants gave the plaintiff a copy of the appraiser's report, and the plaintiff thereafter asked the defendants for a continuance. Although both the plaintiff's and the defendants' counsel agreed to a continuance, the trial judge refused to grant one. Just before trial the plaintiff renewed the motion for a continuance and, in the alternative, moved to preclude the testimony of Gerald Higgs, *1377 pursuant to the sanction provisions of Rule 37(b), Utah Rules of Civil Procedure. The court denied the plaintiff's motion to continue and later, during the trial, denied the motion to strike.
At trial, the plaintiff presented the testimony of its expert appraiser, who appraised the value of the land at approximately $4,000 per acre, or $155,000 total. The defendants' expert, Mr. Higgs, after adjusting for the time interval between the date of foreclosure and the date of the appraisal, estimated the fair market value of the land to be approximately $622,775, or $16,070 per acre. Paul Jewkes, one of the defendants, also an expert appraiser, testified that the value of the property was approximately $16,500 per acre, or $639,375 total.
The jury was asked to return a special verdict fixing the fair market value of the property on the date of the foreclosure sale. The jury found the value to be $9,600 per acre, or $372,288 total. Because the value of the property was found to be in excess of the amount of the debt owed, the court entered judgment in favor of the defendants.
After the trial, the plaintiff brought a timely motion for a new trial based on Rule 59(a)(3) of the Utah Rules of Civil Procedure, claiming that it was surprised by the defendants' expert witness, Higgs, who had not been identified in the defendants' answers to the pretrial discovery requests. The motion for a new trial was denied, and this appeal followed.
On appeal, Cape Trust contends that the trial court abused its discretion by denying the continuances which were requested the day before and the day of trial. Cape Trust also contends that the trial court erred in failing to grant a motion for a new trial due to the surprise caused by late notification that Gerald Higgs would testify. Because both of these contentions involve the same issue, i.e., the propriety of the trial court's allowing Higgs to testify, we shall discuss them together.
Trial courts have substantial discretion in deciding whether to grant continuances. Utah R.Civ.P. Rule 40(b). See also State v. Humpherys, 707 P.2d 109 (Utah 1985); Griffiths v. Hammon, 560 P.2d 1375 (Utah 1977); Sharp v. Gianulakis, 63 Utah 249, 225 P. 337 (1924). Similarly, both the granting of, and the refusing to grant, a new trial is a matter left to the discretion of the trial judge, and that decision will be reversed only if the judge has abused that discretion by acting unreasonably. Batty v. Mitchell, 575 P.2d 1040, 1043 (Utah 1978); Smith v. Shreeve, 551 P.2d 1261 (Utah 1976); Page v. Utah Home Fire Ins. Co., 15 Utah 2d 257, 391 P.2d 290 (1964); Thorley v. Kolob Fish & Game Club, 13 Utah 2d 294, 373 P.2d 574 (1962).
Cape Trust contends that it was prejudiced by Higgs' testimony. The jury was concerned with only one issue at trial, the fair market value of the land. Cape Trust asserts that since it did not know of the defendants' expert until five days before trial and did not receive his report until one day before trial, it did not have adequate time to evaluate comparable sales which were used as the basis for the expert's testimony concerning the value of the land. Cape Trust further claims that because it had inadequate time to prepare, it was unable to conduct an adequate cross-examination of the defendants' expert witness.[2]
The argument is unconvincing. Although Cape Trust did not know that Higgs would testify until after the time for discovery closed, the expert was made available to the plaintiff either for an informal interview or for a deposition. The *1378 plaintiff did not take advantage of either option.
Further, since the only issue in the case was the value of the land and the plaintiff had to prepare and present evidence on that issue anyway, the plaintiff surely was not prejudicially unprepared to conduct an adequate cross-examination. In fact, the record reveals that Cape Trust conducted a very thorough examination of Mr. Higgs. He was questioned closely concerning both his written report and the properties listed as comparable sales in the report Furthermore, Cape Trust recalled its own expert appraiser as a rebuttal witness. That appraiser testified concerning the properties listed in the Higgs appraisal. Cape Trust's appraiser was familiar with at least five of the comparable sales listed in the Higgs appraisal. In short, the prejudice claimed by Cape Trust is simply not validated by an examination of the record.
Finally, one additional factor tends to support the conclusion that Cape Trust was not prejudiced by the introduction of Higgs' testimony. The jury found the value of the land to be $9,600 per acre. Undisputed testimony was given that the property in question had sold for $9,000 per acre in 1977, some six years before the valuation at issue in this case. The jury therefore had a figure for the value of the land which was independent of the appraisers' reports and could well have been a basis for the verdict. In short, Cape Trust has demonstrated no error and no prejudice.
AFFIRMED.
HALL, C.J., HOWE, Associate C.J., and DURHAM, J., concur.
ZIMMERMAN, Justice (concurring in the result):
I agree that the decision below should be affirmed. However, I join the result reached by the majority only because any error committed by the trial court in unreasonably refusing either to grant a continuance or to exclude the evidence made known to Christenson immediately before trial in violation of the court's orders has not been shown to have sufficiently undermined the outcome so as to lead me to believe that the error was harmful under the harmless error test of Utah Rule of Civil Procedure 61 and Utah Rule of Evidence 103(a). See Ashton v. Ashton, 733 P.2d 147, 154 (Utah 1987); Redevelopment Agency of Roy v. Jones, 743 P.2d 1233, 1235 (Utah Ct. App. 1987); see also State v. Knight, 734 P.2d 913, 919-20 (Utah 1987).
NOTES
[1] Section 57-1-32 requires that a complaint seeking a deficiency judgment must state the amount of the indebtedness, the amount for which the property was sold, and the fair market value of the property on the date of the sale.
[2] Cape Trust does not contend that the defendants' counsel acted in bad faith. The third set of interrogatories submitted by Cape Trust requested, among other things, the identity of every witness the defendants intended to call. The record indicates that the defendants' counsel provided such information to the plaintiff's counsel as soon as it was determined that Higgs would be a witness for the defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366173/ | 383 S.E.2d 286 (1989)
William Anthony WAGNER
v.
Jerry C. HEDRICK, Warden, West Virginia Penitentiary.
No. 18478.
Supreme Court of Appeals of West Virginia.
April 18, 1989.
Rehearing Denied July 20, 1989.
Dissenting Opinion August 2, 1989.
*287 Jane Moran, Williamson, for William Anthony Wagner.
*288 Charles G. Brown, III, Atty. Gen., Charleston, for Jerry C. Hedrick.
BROTHERTON, Chief Justice:
The petitioner, William Anthony Wagner, was convicted of first degree felony murder by a Mingo County Circuit Court jury on January 8, 1983. He was sentenced to life imprisonment with a recommendation of mercy. Wagner now assigns as error (1) the admission of evidence discovered during a warrantless search of his clothing while he was being treated in a hospital emergency room, and (2) the admission of testimony regarding a letter allegedly written by him without requiring the production of the actual letter.[1] We find no reversible error and affirm Wagner's conviction for the reasons set forth below.
I.
The body of Dwight Truman Elswick was found in the early morning hours of July 21, 1982, at his work site, a Norfolk and Western shack adjacent to the railroad tracks in Williamson, West Virginia. Co-workers were first alerted to his circumstances when an unidentified plea, "Somebody come to me," was transmitted over the railroad yard's radio system at 12:57 a.m. Elswick's body was discovered minutes later, lying face down on the floor of the shack, with the radio microphone near his hand and his back pants pockets turned inside out. Subsequent investigation revealed that Elswick was killed by a shot from a .38 caliber revolver and that he was robbed of a substantial amount of money and a 1903 ten dollar gold piece. There were no witnesses to his killing and no evidence was found at the scene that indicated the identity of Elswick's assailant.
Later that day, at approximately 9:24 p.m., the petitioner, William Anthony Wagner, and his traveling companion, Chatwan Smith, were involved in a motorcycle accident in Logan, West Virginia. State Police Trooper S.M. Pinion arrived at the scene at 9:40 p.m. He secured the accident victims' personal effectsconsisting of two duffle bags and motorcycle helmetsby putting them in the trunk of his cruiser. Pinion stated that he did not look through the duffle bags, but kept them solely for the purpose of "safekeeping." A wrecker was also called to the accident scene and arrived at approximately 10:15 p.m. After helping to load the motorcycle onto the back of this wrecker/pick-up truck, Pinion went to Logan General Hospital in order to complete an accident report and check on the condition of the victims.
According to Trooper Pinion's testimony, he arrived at the hospital to find an extremely chaotic emergency room which was packed with people. Wagner was in a bed in the emergency room, apparently conscious but also intoxicated and in extreme pain. Smith was in a nearby bed, but they were separated by a curtain between them. Dr. Patricia Lewis, the emergency room physician who treated Wagner that night, testified that he suffered a compressed fracture of the spine and also had a fractured clavicle. She indicated that he was lethargic and in a great deal of pain, and that his blood alcohol level was .170. Chatwan Smith sustained fractured ribs in the accident and the doctor indicated that she was also "incapacitated."
Pinion attempted to identify the victims in order to complete his accident report, asking those present, in general, "Does anybody have any identification?" He stated that he looked for a hospital admissions sheet but could not find one. Joyce Dean, a supervisor at Logan General Hospital, testified at the suppression hearing that at approximately 10:25 p.m., Wagner provided her with information she needed to fill out the emergency room record, which she said should have been on a desk in the emergency room. Dean said that Wagner seemed to be coherent, but that when she wrote down the admissions data she put a question mark by his name because *289 he appeared uncertain or hesitant about giving it to her. Pinion testified that he directed questions to Wagner, but concluded that Wagner either couldn't answer questions or didn't want to answer questions because of the pain he was in.
Wagner's clothing had been removed and placed in a basket underneath his bed. Pinion removed the pants and looked in the pockets for I.D., but found only dollar bills, some change, and a gold coin. Attaching no particular significance to the gold coin, he put everything back into the basket. A few minutes later, a nurse handed him Wagner's drivers license. Pinion became suspicious upon seeing an Ohio drivers license, as he recalled that the motorcycle had cardboard tags on it indicating that its Rhode Island tags had been stolen. Pinion proceeded to call the State Police office in Logan, and he asked that an NCIC check be run on "William A. Wagner." At this point, Dispatcher Buzz Keesee informed Pinion that the Williamson city police had issued an APB for an "Anthony Wagner" at around 9:00 p.m. and that he was wanted in connection with the robbery and murder of a railroad worker in Williamson. Pinion asked for more details and awaited a phone call from someone who could provide additional information.
Concerned that Wagner might have a gun, Pinion informed a doctor that two people being treated in the emergency room may have been involved in a robbery and murder in Williamson. Pinion was told that the woman, Chatwan Smith, had a roll of money she wouldn't let loose of, even though a nurse had tried to secure it. Pinion told a doctor they had better attempt to get the money because it may be connected with the robbery. A doctor finally took the money from Ms. Smith and handed it to Pinion, who counted $2,750.00 in hundreds and fifties.
A few minutes later, Pinion received a phone call from Corporal B.L. Baker, who was in Williamson and who filled Pinion in on the details of Elswick's death and Wagner's possible connection to the crime. The police believed it was Wagner who had bought a motorcycle earlier that day from Trooper John Zirkle, who was off duty and not in uniform, paying him $1,500.00 in one hundred dollar bills for it. Police suspected that Wagner had robbed Elswick of between $5,000.00 and $7,000.00, as well as a gold coin. Pinion then told Baker that he had observed a ten dollar gold piece in Wagner's pants pocket when he was looking for I.D. Both Baker and Pinion considered Wagner to be a suspect at this point. Baker told Pinion to secure the gold coin and the money and that he (Baker) would be over to the hospital the next day. They discussed obtaining a search warrant but concluded that because Pinion was the only police personnel at the hospital at such a late hour and because Pinion was unaware of the extent of Wagner's injuries and was afraid he might attempt to dispose of the coin, taking the coin without a warrant was the "practical thing to do under the circumstances."
After his conversation with Corporal Baker, Pinion felt that he had probable cause to arrest Wagner, indicating that "if he had tried to get up, I would have detained him." He subsequently removed the contents of Wagner's pants pockets. Pinion told hospital personnel to keep Wagner in a secured room that night. The two duffle bags, helmets, and other personal effects belonging to Wagner and Chatwan Smith were placed in a plastic bag and locked in the evidence room at the state police barracks in Logan that night.
At 3:50 p.m. on July 22, 1982, Corporal Baker applied to Magistrate Johnny Mendez for a warrant to search the duffle bags. The warrant indicated that the police were looking for a wallet, money, identification cards, or papers belonging to Dwight T. Elswick and a .38 caliber revolver that may have killed him. As grounds for probable cause for issuance of a warrant, the warrant stated "that the bags listed are the property of William A. Wagner and may contain property stolen of Dwight T. Elswick and may contain evidence of the crime due to the oral statement from Trooper S.M. Pinion that William A. Wagner had in his possession a gold coin belonging to Dwight Elswick."
*290 Upon obtaining the search warrant, Trooper Pinion unlocked the evidence room for Corporal Baker and turned over the money retrieved from Chatwan Smith as well as the gold coina 1903 series ten dollar gold piecewhich had been placed in an envelope and remained in Pinion's possession until he turned it over to Baker. In the duffle bag Baker found a .38 caliber revolver with six cartridges in the cylinder of the weapon. Later that evening, at around nine or ten o'clock, Wagner was officially placed under arrest and informed of his Miranda rights.[2]
Prior to trial, an extensive suppression hearing was held at which Trooper Pinion, Corporal Baker, the defendant Wagner, Chatwan Smith, and ten hospital employees testified as to the events occurring in the Logan General Hospital emergency room on July 21, 1982. After hearing the arguments of counsel, the court ruled on various motions, including the defendant's motion to suppress the gold coin and all evidence obtained as a result of the gold coin. The court stated that the first search of the defendant's pockets presented the real issue to be addressed as the subsequent seizure of the coin occurred after Trooper Pinion had probable cause to arrest the defendant, based upon the information received from Corporal Baker, the fact that an A.P.B. had already been issued for Wagner, and the money that was taken from Chatwan Smith.
Noting the police officer's duty to preserve an accident victim's property and notify any next-of-kin of the accident, depending upon the extent of the injuries, the court denied the defendant's motion to suppress. The court found that Trooper Pinion was not engaging in a search for evidence of criminal activity, but was simply attempting to ascertain the identity of a person involved in a motor vehicle accident, as he is required to do by statute.[3] Thus "[h]e did not seize this coin and he was not in the process of making any kind of search as is contemplated by the United States Constitution or the West Virginia Constitution." The court concluded that the initial warrantless search of the defendant's pants pockets for identification did not unreasonably interfere with Wagner's property interests and, therefore, "the officer's behavior was reasonable under the circumstances, and did not violate the Fourth Amendment."
II.
Wagner now argues that the trial court violated his Fourth Amendment right to be free from unreasonable searches and seizures when Trooper Pinion invaded his reasonable expectation of privacy by searching the basket of clothes underneath his hospital bed without first attempting to determine his identity through other available sources. Wagner argues that because the initial warrantless search produced the gold coin which provided probable cause to support the subsequent warrant to search his duffle bags, all evidence obtained as a result of the first illegal search should be excluded as "fruits of the poisonous tree."[4]
Both "[t]he Fourth Amendment of the United States Constitution and Article III, Section 6 of the West Virginia *291 Constitution[5] protect an individual's reasonable expectation of privacy." Syllabus point 7, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981). A claim of protection under the Fourth Amendment and the right to challenge the legality of a search depends not upon a person's property right in the invaded place or article of personal property, but upon whether the person has a legitimate expectation of privacy in the invaded place or thing. Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed. 2d 576, 583 (1967).[6] If a person is in such a position that he cannot reasonably expect privacy, a court may find that an unreasonable Fourth Amendment search has not taken place.
While the word "search" is capable of many definitions, the United States Supreme Court has stated that "a search ordinarily implies an intrusive `quest by an officer of the law.'" J.W. Hall, Search and Seizure § 1:6 (1982). However, "when there is no intrusion on an expectation of privacy, there is no search." Id.
The first issue before us, then, is whether William Anthony Wagner maintained a reasonable expectation of privacy in the contents of his pants pockets once he was brought into the emergency room of Logan General Hospital. Given the facts evident from the record, we cannot find that Wagner could have exhibited a reasonable expectation of privacy in his personal effects in this hospital emergency room on this particular night. Rather, we believe Wagner's expectation of privacy was necessarily diminished by the circumstances under which he was brought into the hospital. Any expectation of privacy which Wagner may have had could not be termed "reasonable" because he was in a hospital emergency room, one which many people had access to and in which many people, particularly medical personnel, were constantly moving around. The area was freely accessible to law enforcement officers, and Trooper Pinion had a right to be there that night by virtue of his duty to investigate this particular accident. It is apparent that Wagner had very little control over what happened in the emergency room area and that he and his personal effects could be placed wherever the hospital staff chose to put them.[7]
*292 Moreover, when Wagner was given the opportunity to insure that his personal effects would be kept in a private place during his hospital stay, he chose not to do so. We note with interest the fact that Wagner rejected an offer by a hospital employee to have his personal effects, including the gold coin, secured in the hospital safe, thus exposing his property to the possibility that it might be lost, misplaced, or even stolen while he was being treated for his injuries and moved to other areas of the hospital.[8] We conclude that any expectation of privacy which Wagner may have had was not reasonable under the circumstances, but was diminished by the fact that he was a patient being treated for injuries in a hospital emergency room.
Although Wagner alleges otherwise, we are satisfied that Pinion's search for identification was not merely a pretext for a larger scale search for evidence linking Wagner to Elswick's murder. We believe, as the trial court specifically found, that Pinion was unaware that Wagner was a murder suspect at this time. We next consider the fact that Trooper Pinion's "search" in this instance was very limited in both scope and purpose. Pinion stated that his sole motivation in looking through Wagner's pants pockets was to find some type of identification so that he could complete his accident report. No one in the busy hospital emergency room responded affirmatively to Pinion's questions regarding the victims' identities, nor was he able to locate anyone who had secured any type of identification. Pinion looked for, but could not find, admissions information, and he also attempted to question Wagner, who did not respond.
We do not doubt the testimony of Supervisor Joyce Dean that she obtained information from Wagner when he arrived at the hospital. However, it does not necessarily follow that Wagner was later in any condition to respond to Pinion's inquiries. In fact, the treating physician in the emergency room testified that Wagner was lethargic and had an abnormal awareness level. He was undoubtedly in pain and was receiving medication that included a sedative. When considered with the fact that Wagner was legally intoxicated with a blood alcohol level of .170, we conclude that Trooper Pinion's search was a legitimate quest for identification.
We realize that the Fourth Amendment protects everyone from all unreasonable searches of their persons, houses, papers and effects. "No matter how minor the intrusion, the government conduct must still be scrutinized under Fourth Amendment standards." 1 Ringel Searches & Seizures, Arrests and Confessions § 2.2 (2d ed. 1988). However, "[a] minor intrusion will militate toward a judicial finding of reasonableness under the Fourth Amendment ..." although "it does not exempt the conduct from all scrutiny." Id. An examination of the record reveals that Pinion tried to obtain the identification information through other less intrusive measures before he removed Wagner's pants from the basket underneath his bed and looked in the pockets in the hopes of finding his drivers license. Trooper Pinion made an extremely limited search of just Wagner's pants pockets for the sole purpose of locating identification.
After scrutinizing Pinion's limited "intrusion" using the appropriate Fourth Amendment *293 criteria, we simply cannot conclude that his "search" was anything other than reasonable under the circumstances. The facts in this case are complicated and not conducive to a typical Fourth Amendment search analysis because Pinion's search of Wagner's pants pockets was not the type of search that is usually challenged as unconstitutional and certainly not the type of search for which it seems reasonable to have expected Pinion to obtain a search warrant. The more typical Fourth Amendment case involves a search that is initiated for the purposes of obtaining evidence of criminal activity. Certainly, however, we recognize that there are numerous instances in which the nature of a police officer's duty requires that he engage in searches for reasons other than obtaining evidence of criminal activity.
The policeman, as a jack-of-all-emergencies, has "complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses;" by default or design he is also expected to "aid individuals who are in danger of physical harm," "assist those who cannot care for themselves," and "provide other services on an emergency basis." If a reasonable and good faith search is made of a person for such a purpose, then the better view is that evidence of crime discovered thereby is admissible in court.
2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 5.4(c) at 525 (2d ed. 1987) (footnotes omitted.)[9]
After reviewing the record of the extensive suppression hearing held by the trial court below, we find that the facts support a conclusion that Trooper Pinion acted both reasonably and in good faith when he searched Wagner's pants pockets for identification, in light of the circumstances in the hospital emergency room which frustrated his attempts to identify these particular accident victims.
Although we conclude that Trooper Pinion conducted a reasonable and good faith search, we reject the State's argument that the emergency exception to the warrant requirement justified the search.[10] We adopted the emergency doctrine in State v. Cecil, ___ W.Va. ___, 311 S.E.2d 144 (1983), in which we held that the emergency doctrine permitted "a limited, warrantless search or entry of an area by police officers where (1) there is an immediate need for their assistance in the protection of human life, (2) the search or entry by the officers is motivated by an emergency, rather than by an intent to arrest or secure evidence, and (3) there is a reasonable connection between the emergency and the area in question." Id. 311 S.E.2d at 149.
The application of the emergency doctrine requires the existence of a "compelling need to render immediate assistance to the victim of a crime, or insure the safety of the occupants of a house when the police reasonably believe them to be in distress and in need of protection." Id. at 150 (citing State v. Kraimer, 99 Wis. 2d 306, 315, 298 N.W.2d 568, 572 (1980)). The facts of this case provide no evidence of precisely this type of medical emergency, *294 as Wagner was already receiving treatment for his injuries.[11]
We find instead that Pinion's search in this case was very similar to "a limited search for identification ... undertaken to facilitate a noncriminal disposition of a person in police control." 2 LaFave, supra § 5.4(c) at 526. LaFave states that in this situation it is "clearly unnecessary to find a reasonable belief of a medical emergency." Id.[12]
However, we do not feel compelled to categorize our holding by placing this "search" within one of the exceptions to the warrant requirement. As this Court stated in State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559, 575, "Some cases fall between the categories. The labels do not always fit. Many decisions turn, not upon the labels, but upon a close analysis of the facts." Id. 280 S.E.2d at 575 (quoting Carlton v. Estelle, 480 F.2d 759, 761 (5th Cir.1973)). We concluded that a decision in any given case "must turn on the facts of that particular case examined in the light of the purposes served by the Fourth Amendment and the interests protected by that amendment." Id.
We conclude that Pinion's warrantless search of Wagner's pants pockets did not violate Wagner's right to be free from an unreasonable search as it was a reasonable and good faith attempt to locate necessary identification of an accident victim, as required by law. Nor do we find that Pinion's search invaded Wagner's reasonable expectation of privacy. Although injured persons being treated in a hospital emergency room are entitled to Fourth Amendment protections, the degree of privacy they are reasonably entitled to expect may be diminished by the circumstances under which they are brought into the hospital. We thus affirm the holding of the trial court below as to the propriety of this search and agree as well with the trial court's conclusion that the subsequent warrantless seizure of the gold coin was based upon probable cause to arrest Wagner and justified by the exigent circumstances present at that time.
III.
We will now address the defendant's second assignment of error which involves the trial court's admission of testimony regarding a letter Chatwan Smith alleges Wagner wrote to her without requiring production of the actual letter.
Chatwan Smith testified at trial that when Wagner returned home on the morning of July 21, 1982, he told her he had "robbed and shot a man." During cross-examination, Wagner's defense attorney, Mr. Davis, introduced a letter written by Smith to Wagner in August, 1982. In the letter, she wrote, among other things, that the "... cops are actually trying to blame you for a murder you didn't commit" and "[t]heir [sic] not going to stick you with know [sic] bad rap and keep us apart for the rest of our life...." Smith also referred to money, stating "Say I know they got your money (the cops) so ask them to get your cigarettes or the trustee cause that money on you is yours."
Mr. Davis indicated that the purpose of introducing the letter was to contradict Smith's testimony on direct examination, and thus impeach her credibility as a witness. Mr. Davis stated, "She says in this *295 letter that this money belongs to Mr. Wagner and that he had not shot and killed anyone and that is what we are trying to straighten out."
On redirect examination, the prosecuting attorney, Mr. Ward, questioned Smith about statements in the letter. Smith stated that the money she was referring to in the letter was money she had received from a "date" and then gave to Wagner. She said she referred to this as his money that the police had taken from him in addition to the money belonging to Dwight Elswick. Smith was then asked if she was "lovesick" when she wrote this letter to Wagner, and she replied, "Yes. I missed him." The redirect examination of Smith continued as follows:
Q. You had been away from him a little bit at that time?
A. Yes.
Q. You wrote in that letter they were trying to put a bad rap on him for a murder he hadn't done?
A. Yes.
Q. Was that in response to a letter by this defendant?
A. He had wrote a letter to me telling me he didn't kill the man, so I was just responding to his letter and letting him know if he hadn't killed the man he should tell what had happened.
Q. Was he beginning to make you believe he hadn't done it?
A. I really didn't know, because I wasn't there.
Q. Did he ask you to do anything else in that letter?
A. Yes. He told me to say it was prostitute money and that
At this point defense attorneys objected to Smith offering testimony from a letter that was not in evidence. Smith then indicated that the letter she had received from Wagner was at her home in Dayton, Ohio. The objection was overruled and Smith was allowed to testify as to the contents of the letter. She stated that in the letter she received from Wagner, "He wanted me to say it was prostitute money and how he had hustled by shooting pool and playing cards and shooting craps." Smith said that Wagner was asking her to lie for him.
Wagner contends that he was denied due process of law when Chatwan Smith was allowed to testify regarding the contents of a letter not before the Court as the testimony was used to rehabilitate a crucial witness for the State. He states that he was denied his constitutional right to confront his accusers and that admission of this testimony created "circumstances impugning fundamental fairness."
We reject Wagner's contention that Smith's testimony regarding the letter she said she received from Wagner violates West Virginia Rule of Evidence 1002, also referred to as the best evidence rule.[13] An applicable exception to the best evidence rule is found in W.Va.R.Evid. 1004(4), which states that an original writing is not required and other evidence of the contents of a writing is admissible if the writing "is not closely related to a controlling issue." Cleckley states that:
If the writing or document is considered as evidence relating to a matter which does not form the foundation of the "cause of action or defense" the best evidence rule does not apply.... A writing is collateral if under the circumstances it is of such minor importance that no useful purpose would be served in requiring its production. State v. Clark, 64 W.Va. 625, 63 S.E. 402 (1908); Rule 1004(4). For example, the impeachment of a credibility witness as to his prior written statement that he "believed the accused should be hung."
Cleckley, Handbook, at § 9.3(F)2.d. In this case, Smith's statement about receiving a letter from Wagner was relevant only in the sense that it was her explanation for why she wrote the letter which was admitted into evidence and which contradicted her direct testimony that Wagner told her *296 he robbed and shot a man.[14] The credibility of witness Smith was an issue to be decided by the jury and we believe there was sufficient evidence before the jury upon which they could base this determination without requiring the production of the letter.
Finally, having found that the trial court committed no error when it admitted Smith's testimony regarding the letter without requiring the production of the letter, we conclude that Wagner suffered no due process violation or other substantial prejudice which affected the outcome of his trial.
Finding no reversible error, we affirm the decision of the trial court below.
Affirmed.
McGRAW, J., participated and concurred in this decision but departed from the Court prior to the preparation of the opinion. WORKMAN, J., did not participate in the consideration or decision of this case.
MILLER, Justice, dissenting:
I respectfully dissent. One of the principles of law firmly planted in our Fourth Amendment jurisprudence is that a search made in the absence of a warrant is conclusively presumed to be unreasonable. To justify a warrantless search, it must be fitted within one of the narrow exceptions derived from the case law. This principle finds expression in Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967): "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well delineated exceptions." (Footnotes omitted).
I am distressed that the majority so readily departs from this settled law.[1] In spite of the clarity of the language in Katz, the majority weakens it by stating that "[t]he labels [for exceptions to the warrant requirement] do not always fit." For this reason, decisions in warrant cases must "turn ... upon a close analysis of the facts." ___ W.Va. at ___, 383 S.E.2d at 294. I submit that the majority's approach turns Katz into a dog.
The majority asserts that it refuses to apply the emergency exception to the facts of this case.[2] I recognize that courts in other jurisdictions have authorized a warrantless search of an individual for identification when an officer encounters someone who is unconscious or otherwise unable to *297 respond to questions even though there is no immediate medical emergency. The purpose of this "caretaker" function is to put the individual into some more secure place for his own protection and, necessarily, involves determining identity in order to contact family or other relatives. E.g., Vauss v. United States, 370 F.2d 250, 125 U.S.App.D.C. 228 (1966); Gilbert v. State, 289 So. 2d 475 (Fla.App.1974); People v. Smith, 47 Ill. 2d 161, 265 N.E.2d 139 (1970); State v. Miller, 486 S.W.2d 435 (Mo.1972); Perez v. State, 514 S.W.2d 748 (Tex.Crim. 1974).
It should also be stressed, as Professor LaFave points out in his treatise, that the Supreme Court of the United States has never held that caretaker activities may justify a warrantless search.[3] 2 W. LaFave, Search and Seizure § 5.4(c) at 525 n. 32 (1987). The Newman case,[4] cited by the majority, is easily distinguished. Newman permitted a limited search for identification to enable police officers to return an inebriate to his home. This authority was derived exclusively from statute. Newman cannot be read to throw open the door to warrantless searches in other nonemergency situations.
It is obvious, however, that "caretaker" facts simply do not exist in this case. The defendant was not in control of the police. He was at the hospital in control of the people in the emergency room. There was no need for the police to exercise a caretaker function when the defendant was already in competent medical care. The majority's solicitous concern over the possible loss of the defendant's clothing and personal effects as motivating the caretaker officer cannot be treated seriously. This is because after the officer rummaged through the defendant's personal effects, he made no effort to have them placed in a more secure place.
The sole basis, then, on which the majority rests its decision is the duty to report vehicular accidents under W.Va.Code, 17C-4-7. This section requires police officers to prepare a report of every vehicular accident and to forward the same to the department of motor vehicles. This is a far cry from the type of exigency[5] required to override an individual's reasonable expectation of privacy.
Finally, I am led to conclude, contrary to the majority, that the officer's search for identification was merely a pretext for a broader search for evidence. Even the majority credits the testimony of the emergency room supervisor, who stated that identifying information was received from the defendant on his arrival. This information was recorded and the record was made available at the admissions desk. By his failure to inquire at the admissions desk, the officer ignored standard hospital procedure.
Other testimony also casts doubt on the innocent nature of the search. For example, the officer says that he questioned emergency room staff about whether the defendant's identity was known. This fact is uncorroborated by any of the seven doctors, nurses, and orderlies who were on duty that night. Also notable is the fact that the all points bulletin for the defendant was issued at least two hours before the search was made. It is fairly inferable that the officer knew of the bulletin at the time of his search.
*298 Most damaging of all is the testimony of Randall Franklin Day, the orderly who prepared the defendant for treatment. Day states that even before he removed the defendant's pants or searched for identification, he was directed by the officer to search the defendant's jacket for a weapon. One may reasonably wonder why the officer would make such a request if he believed the defendant simply to be an accident victim. Also overlooked by the majority is Day's statement that he located a billfold in the defendant's pants and handed it to the officer for his review. Day's testimony clearly belies the State's theory that the search was one for identification only.
For these reasons, I respectfully dissent.
NOTES
[1] A third issue assigned as error, involving the application of the recidivist statute, has been resolved. The State has stipulated that the statute was incorrectly applied to Wagner's sentence and thus, as a result of the jury's recommendation of mercy, he is eligible for parole after serving ten years of his life sentence.
[2] However, oral statements subsequently made by Wagner to Corporal Baker were later suppressed as the trial judge found that the State failed to meet its burden of demonstrating by a preponderance of the evidence that Wagner was properly advised of his constitutional rights.
[3] West Virginia Code § 17C-4-7 (1986) requires written reports of accidents occurring on the public highways of this State which result in bodily injury to or death of any persons or total property damage to an apparent extent of two hundred fifty dollars or more. Section 17C-4-7(c) provides, in relevant part, that:
Every law-enforcement officer who, in the regular course of duty, investigates a motor vehicle accident of which report must be made as required in this section, either at the time of and at the scene of the accident or thereafter by interviewing participants or witnesses shall, within twenty-four hours after completing such investigation, forward a written report of such accident to the department....
[4] Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 2d 307 (1939).
[5] The Fourth Amendment to the United States Constitution states that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Parallel language is found in Article III, Section 6 of the West Virginia Constitution.
[6] Justice Harlan discussed the "reasonable expectation of privacy" test in his concurring opinion in Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587-88, in which he stated, "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'"
[7] See Sullivan v. District Court of New Hampshire, 384 Mass. 736, 429 N.E.2d 335 (1981), in which the court found that a nurse could not have had a reasonable expectation of privacy after leaving his jacket in the hospital canteen, a common area open to all hospital employees. Id. 429 N.E.2d at 338-39. The jacket was discovered by a special police officer at the hospital, who saw a pouch in one of the jacket pockets containing "a green substance" which he "assumed to be marijuana." Id. at 337.
The Sullivan court held that there was no "search" in the Fourth Amendment sense because "[a] person cannot claim to have been the victim of a search violative of the Fourth Amendment unless he had a legitimate expectation of privacy in the particular circumstances." Id. at 338 (citations omitted). Noting the Supreme Court's statement in Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582, that "the Fourth Amendment protects people, not places," the court said that, nevertheless, "the place involved may be relevant in deciding whether the person ha[d] a reasonable expectation of privacy." (quoting Commonwealth v. Ortiz, 376 Mass. 349, 351, 380 N.E.2d 669, 672 (1978)). Id. Other relevant considerations included "whether a particular place is a common area, whether it was freely accessible to others besides the defendant, and whether the defendant controlled access to the area." Id. (citations omitted). The court concluded that "an individual can have only a very limited expectation of privacy with respect to an area used routinely by others." Id.
See also Buchanan v. State, 432 So. 2d 147 (Fla.App. 1 Dist.1983), in which the court concluded that the defendant had no reasonable expectation of privacy in the area underneath a mattress in a hospital emergency room bed, where the defendant attempted to hide a bag containing illegal drugs, because medical personnel were constantly walking in and out of the area and the defendant could have expected to remain there for no more than a few hours; United States v. Mankani, 738 F.2d 538 (2nd Cir.1984), acknowledging that occupants of a hotel room are entitled to Fourth Amendment protection but stating that "it is the transitory nature of such places, commonly understood as such, that diminishes a person's justifiable expectation of privacy in them." Id. at 544.
[8] Randall Day, an attendant at Logan General Hospital, testified at the suppression hearing that he was responsible for making sure that the personal property of accident victims who were being admitted was locked up. Day indicated that when he asked Wagner if he wanted the gold coin locked up, Wagner said "no," at which point Day put the coin back into the pants pocket and then returned the pants to the basket beneath the bed. Day stated, "If he wanted it locked up, it would have been."
[9] LaFave notes that the Supreme Court has never ruled on precisely this type of search, but cites Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), in which the Court, "in upholding the warrantless search of a vehicle, made specific reference to the necessity for local police to engage in `community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" 2 LaFave, supra § 5.4(c), at 525 n. 32.
But cf. United States v. Pichany, 687 F.2d 204 (1982), in which the Seventh Circuit Court of Appeals refused to extend the "community caretaking" exception to the Fourth Amendment warrant requirement to the warrantless search of the defendant's unlocked warehouse, where the officers were not investigating the defendant's involvement in any crime but discovered stolen farm equipment while investigating an unrelated burglary.
[10] We also reject the State's initial argument that the search issue has been previously litigated within the meaning of W.Va.Code § 53-4A-1(b) (1981). We are not satisfied that the issues now raised in this petition were adequately presented to this Court in Wagner's previous pro se petitions.
[11] See generally Bacigal, The Emergency Exception to the Fourth Amendment, 9 Rich.L.Rev. 249 (1975); Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419 (1973).
[12] To illustrate this point LaFave cites language from State v. Newman, 49 Or.App. 313, 619 P.2d 930 (1980), rev'd 292 Or. 216, 637 P.2d 143 (1981), cert. denied, 457 U.S. 1111, 102 S. Ct. 2915, 73 L. Ed. 2d 1321 (1982), in which the police placed an intoxicated woman in their care under a "civil hold." The police were acting pursuant to a statute which permitted them discretion in deciding whether to take intoxicated persons home rather than to jail. When the woman could not or did not supply them with identification, they searched her purse for identification and found drugs. The court stated that "[t]he search of defendant's purse for identification was neither physically nor psychologically intrusive and was, under the circumstances of this case, the most efficient means of ascertaining her identity." 2 LaFave, supra, at 527.
[13] West Virginia Rule of Evidence 1002 states:
Requirement of Original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.
[14] Wagner also argues that the State failed to provide a foundation for the introduction of the secondary evidence of Smith's testimony. However, it was Wagner's attorney who introduced Smith's handwritten letter to Wagner into evidence in an effort to impeach her credibility by showing that her own letter contained statements which were inconsistent with her direct testimony. Once Smith's letter was admitted into evidence, she was entitled to explain any apparent inconsistencies between what she wrote in the letter and what she said Wagner told her on the night in question. "Under Rule 613, if extrinsic evidence of the prior statement is to be admissible, the witness who made the prior statement must be given the opportunity to explain or deny it." Cleckley, Handbook on Evidence for West Virginia Lawyers § 4.1(B)2.c (2d ed. 1986). Smith explained that she wrote the letter that was introduced to impeach her direct testimony in response to a letter she received from Wagner. She stated that in his letter Wagner told her that "he didn't kill the man" and asked her to "say it was prostitute money." The defense made no hearsay objection to Smith's testimony.
[1] We have followed this rule in a number of cases, as illustrated by Syllabus Point 1 of State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980):
"Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitutionsubject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative."
See also State v. Choat, ___ W.Va. ___, 363 S.E.2d 493 (1987); State v. Cook, ___ W.Va. ___, 332 S.E.2d 147 (1985).
[2] This exception is limited to circumstances that involve "[t]he need to protect or preserve life." Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290, 300 (1978); State v. Cecil, ___ W.Va. ___, 311 S.E.2d 144 (1983).
[3] Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), relied on by the majority, does refer to "caretaking" activities of local police in regard to an automobile which had been towed from the scene of an accident. This reference was made to support the proposition that since local police have routine contact with motor vehicles, they may be treated differently from houses for Fourth Amendment purposes. Cady does not, therefore, stand for the broader proposition for which it is cited by the majority.
[4] State v. Newman, 49 Or.App. 313, 619 P.2d 930 (1980), rev'd, 292 Or. 216, 637 P.2d 143 (1981), cert. denied, 457 U.S. 1111, 102 S. Ct. 2915, 73 L. Ed. 2d 1321 (1982).
[5] I am unimpressed by the majority's attempts to emphasize as an "emergency" the need to locate identifying information as promptly as possible. W.Va.Code, 17C-4-7, requires only that the officer's report be forwarded within twenty-four hours of the completion of his investigation. Presumably, the investigation would remain incomplete until the identity of those involved in the accident was ascertained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366189/ | 383 S.E.2d 64 (1989)
FOURCO GLASS COMPANY
v.
WEST VIRGINIA HUMAN RIGHTS COMMISSION and Jerry Wayne Lewis.
No. 18319.
Supreme Court of Appeals of West Virginia.
July 7, 1989.
*65 Charles G. Johnson, Jane Mainella Myers, Johnson & Johnson, Clarksburg, for Fourco Glass.
Barbara Fleischauer, Asst. Atty. Gen., Morgantown, for appellees.
PER CURIAM:
This is an appeal by Fourco Glass Company from the final order of the Circuit Court of Taylor County which affirmed, in part, a decision of the West Virginia Human Rights Commission, which found that the appellant discriminatorily refused to hire the appellee, Jerry Lewis, due to an x-ray which revealed a "potential back problem." Since the Human Rights Commission, as well as the complainant, treated this discriminatory practice as one involving a "perceived handicap," we reverse the decision of the Circuit Court because the Commission's decision relied on an interpretive agency rule that we have previously declared invalid as improperly promulgated. Chico Dairy Co. v. West Virginia Human Rights Commission, 382 W.Va. 75, 382 S.E.2d 75 (1989), opinion as modified on denial of rehearing.
The appellee, Jerry Lewis, had a few years experience as a worker in a glass factory. He applied for a job at Fourco. As part of its hiring practices, Fourco required the appellee and other applicants to undergo a physical examination which included a back x-ray.
The back x-rays were reviewed by Dr. Dale Simmons, a general practitioner at United Hospital Center in Clarksburg, West Virginia. Dr. Simmons is salaried by the hospital and also works for the West Virginia Department of Vocational Rehabilitation, where he routinely reviews occupational injury cases for a six to eight county region.
It is undisputed that the x-ray revealed a transitional vertebrae at L5-S1. The right side of the vertebrae is sacralized. The left is not. Dr. Simmons noted on the complainant's examination form "potential back problem."
As a result of Dr. Simmons' opinion, the complainant was not hired. The complainant subsequently filed a complaint with the Commission in 1982, alleging that Fourco's pre-employment screening practices were discriminatory. The complaint was treated throughout the entire administrative process as a "perceived handicap" under an interpretive rule of the Commission. See Chico Dairy, supra, for discussion of the interpretive rule. During this time, the legislature had never included in the definition of "handicap" the concept of "perceived handicap" under the Human Rights Act." W.Va.Code, 5-11-3 [1987].
At a hearing conducted on the matter, the complainant produced evidence from another doctor, neurologist Thomas Crosby, who opined that the complainant would not have future back problems. Further, the complainant introduced evidence of his ability to perform manual labor for employers throughout 1984 and 1985, after Fourco refused to hire him in 1982.
The Commission noted the claimant's "fitness" and ability to work in "comparably *66 strenuous" occupations after Fourco's refusal to hire him. It then found that Fourco discriminated against the complainant on the basis of the Commission's interpretive rule concerning a "perceived handicap." The Commission held that the "pre-employment back x-ray is a discriminatory screening device because it is relied upon to reject applicants for employment who are able to work and who may never develop back problems."[*] The Commission then awarded the complainant $100,000 back pay and $3,000 for humiliation.
Fourco appealed to the Circuit Court of Taylor County. In its brief, filed with the circuit court in 1986, the appellant specifically assigned as error the Commission's lack of statutory authority to expand the legislature's definition of "handicap" under W.Va.Code, 5-11-3 [1987] through an interpretive rule in order to include a "perceived handicap."
By order dated April 25, 1986, the circuit court affirmed all findings of fact and conclusions of law, except the award of $3,000 for humiliation was reduced to $300.
The appellant petitioned this Court for appeal, again contending that the Commission lacked the authority to expand the statutory definition of "handicap" to include a "perceived handicap." While appellant's case was pending, the Court decided the issue in syl. pt. 1 of Chico Dairy Co. v. West Virginia Human Rights Commission, ___ W.Va. at ___, 382 S.E.2d at 77 (1989), opinion as modified on denial of rehearing:
The rule of the West Virginia Human Rights Commission, 6 W.Va.Code of State Rules § 77-1-2.7 (1982), defining a `handicapped person,' for purposes of the West Virginia Human Rights Act, to include a person who does not in fact have a `handicap,' as defined by W.Va.Code, 5-11-3(t), as amended, but who `is regarded as having such a handicap,' is invalid. That rule is a `legislative rule' under W.Va.Code, 29A-1-2(d), as amended, but was not submitted to the legislative rule-making review committee for its approval, as required by W.Va.Code, 29A-3-9 to -14, as amended.
In doing so, we acknowledged in Chico Dairy ___ W.Va. at ___, 382 S.E.2d at 85 n. 10, that the legislature amended W.Va. Code, 5-11-3(t) and included in the definition of handicap one who "[i]s regarded as having such an impairment." Since the effective date of the amendment is July 1, 1989, we noted "[a]n amendment is meant to change the law." Chico Dairy, supra. Prior to the amendment, the Commission was not delegated the authority to fashion an interpretive rule on the matter, since the statute did not previously envision a "perceived handicap" as a "handicap."
The appellant has preserved the precise error for which we reversed the circuit court in Chico Dairy. Therefore, we must reverse the decision of the Commissioner, as it was based on an improperly promulgated interpretive rule. To the extent that the appellee contends that this Court should consider the complaint, as one concerning an actual handicap, the complainant *67 never pursued this cause of action below. Syl. pt. 3, Chico Dairy, supra.
Based upon the foregoing, the decision of the Circuit Court of Taylor County is reversed.
Reversed.
NOTES
[*] This blanket holding of the Commission that a back x-ray is a per se discriminatory screening device is rooted in note 8 of Rules of the Human Rights Commission, 6 W.Va.Code of State Rules § 77-1-2.7 (1982), wherein the Commission gives examples of "discrimination against persons who are regarded as substantially impaired." (emphasis added). Among the examples is "the refusal to hire a person with x-ray evidence of a congenital back anomaly even though the person has no impairment as a result of such anomaly."
The legal principles regarding perceived handicaps are elusive, at best, and most assuredly far less "cut and dry" than the Commission's interpretive rule indicates. See Ranger Fuel Corp. v. Human Rights Commission, ___ W.Va. ___, ___, 376 S.E.2d 154, 159 (1988) and the federal authorities cited therein, at note 2, Ranger Fuel, supra.
For a good discussion of the numerous elements of a perceived handicap claim that must be proven by the complainant, see Thomas Edward Seguine, "What's a Handicap Anyway? Analyzing Handicap Claims under the Rehabilitation Act of 1973 And Analogous State Statutes," 22 Williamette L. Rev 529 (1986); Note "The Rehabilitation Act of 1973: Focusing the Definition of A Handicapped Individual," 30 William and Mary L.Rev. 149 (1988); Note "Employment Discrimination Against the Handicapped and Section 504 of the Rehabilitation Act: An Essay on Legal Evasiveness," 97 Harvard L.Rev. 997 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/78704/ | 603 F.3d 825 (2010)
Bob BURRELL; Susan Burrell, Plaintiffs-Appellees/Cross-Appellants,
v.
Leonard ARMIJO, Governor of Santa Ana Pueblo and Acting Chief of the Santa Ana Tribal Police, Defendant-Appellant, *826
Lawrence Montoya, Lt. Governor of Santa Ana Pueblo, Defendant-Cross-Appellee, and
Nathan Tsosie, Tribal Administrator of Santa Ana Pueblo; Jerry Kinsman, Farm Administrator of Santa Ana Pueblo, Santa Ana Pueblo, Defendants.
Nos. 09-2034, 09-2039, 09-2154.
United States Court of Appeals, Tenth Circuit.
April 27, 2010.
*827 Richard W. Hughes (Donna M. Connolly, with him on the briefs), Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, NM, appearing for Appellant and Cross-Appellee.
Chris Lucero, Jr., Albuquerque, NM, appearing for Appellees/Cross-Appellants.
Before TACHA, EBEL, and KELLY, Circuit Judges.
TACHA, Circuit Judge.
A jury found Santa Ana Pueblo Governor Leonard Armijo and Lieutenant Governor Lawrence Montoya liable for discriminating and conspiring to discriminate against the plaintiffs, Bob and Susan Burrell, in violation of 42 U.S.C. §§ 1981 and 1985. Thereafter, Governor Armijo and Lieutenant Governor Montoya filed a motion for judgment as a matter of law based in part on sovereign immunity. The district court denied the motion as to Governor Armijo but granted it as to Lieutenant Governor Montoya. The district court then awarded the Burrells attorney's fees as prevailing parties against Governor Armijo. See 42 U.S.C. § 1988(b).
Governor Armijo now appeals the denial of his motion for judgment as a matter of law and the award of attorney's fees. The Burrells cross-appeal the district court's grant of judgment as a matter of law to Lieutenant Governor Montoya and a prior order of the court striking portions of their complaint under Fed.R.Civ.P. 12(f). Taking jurisdiction under 28 U.S.C. § 1291, we conclude that both Governor Armijo and Lieutenant Governor Montoya are entitled to immunity. We further find no error in the order striking portions of the complaint. Finally, because the Burrells are no longer prevailing parties, they are not eligible for § 1988(b) attorney's fees. *828 Thus, we REVERSE in part and AFFIRM in part.
I. BACKGROUND
The evidence at trial demonstrated the following. On May 20, 1980, Mr. Burrell entered into a ten-year land lease with the Santa Ana Pueblo under which the Pueblo leased him nearly 172 acres in exchange for specified annual payments. The lease was later extended to September 2000. Although Mr. Burrell and the Santa Ana Pueblo were the only parties to the lease, the contract was drawn on a standard form under the authority of the United States Department of the Interior, Bureau of Indian Affairs ("BIA") and approved by the same agency. The lease contained a provision that upon the termination or expiration of the lease, all buildings and improvements placed on the land by Mr. Burrell would become the property of the Santa Ana Pueblo. In addition, the lease authorized the BIA to perform the following functions: to suspend rental payment when the leased land is held in trust; to approve subleases, assignments, or amendments to the lease; to resolve the amount of damages in the event of an oil and gas or right-of-way dispute; to notify the parties of the termination of federal trust responsibilities with respect to the land; to authorize or prohibit alfalfa plowing during the last year of the lease contract; to plan a soil conservation program and demand specific performance of the program or payment of specified damages; and to enter and inspect the land.
On the evening of June 1, 1997, the Burrells were baling alfalfa on the leased land. Mr. Burrell's practice, as well as standard practice in the area, was to bale alfalfa between 9 p.m. and 7 a.m. to ensure that the alfalfa would have the proper moisture content. That night, a member of the Santa Ana Pueblo phoned Governor Armijo and complained about noise coming from the Burrells' alfalfa baling operations. Governor Armijo drove to the Burrells' land, told them that they were making too much noise, and said that they must stop baling or he would arrest them.
At the Burrells' request, Governor Armijo put the no-nighttime-baling order in writing the following day. The order was written on Santa Ana Pueblo letterhead and stated: "The Pueblo of Santa Ana is requiring that you do not bale hay between the hours of 9:00 pm and 7:00 am." The order was concluded, "Sincerely, Pueblo of Santa Ana" and was signed by Governor Armijo.
The Burrells believed that without nighttime baling, their alfalfa operation would fail. Accordingly, Mr. Burrell tried to contact Governor Armijo, Lieutenant Governor Montoya, and other tribal officials in order to schedule a meeting with the Santa Ana Pueblo Tribal Council so that he could attempt to persuade it to rescind the order. These attempts to have the order rescinded, however, were unsuccessful.
During this time, the Burrells also met with Lieutenant Governor Montoya. At this meeting, Mr. Burrell suggested that the Santa Ana Pueblo could buy him out of the lease for $500,000. Lieutenant Governor Montoya told Mr. Burrell that he would raise the issue with the Santa Ana Tribal Council.
The Burrells consulted with a lawyer who sent a letter addressed to the Santa Ana Tribal Council on June 18. The letter read:
Unfortunately and regretfully, after seventeen years of hard work and dedication, a situation has arisen in Mr. Burrell's current situation which will make it virtually impossible for Mr. Burrell to continue farming as a profession.... *829 The situation which has arisen includes but is not limited to the incidents regarding the letter of Governor Leonard Armijo attached hereto....
Mr. Burrell still has a loan through the Farm Home Administration on the equipment he has purchased over the years to accomplish the task of farming the subject land. Mr. Burrell will have to liquidate the equipment to satisfy the lien of the Farm Home Administration.
It is my understanding that the crop mix that Mr. Burrell has planted on the subject land is in various stages of growth and will be ready for harvesting and grazing in the near future. It is also my understanding that the crops will be lost if someone does not take over maintenance of the crops as soon as possible after Mr. Burrell vacates the farming operation. Mr. Burrell has indicated that he feels that the current crop and future crop produced by the land will be prosperous and sell for fair market values if properly maintained and harvested.
... Mr. Burrell hereby formally requests the Tribal Council to purchase his interest in the remaining term of the lease and compensate him for the capital improvements he has placed on the land such as laser leveling, improved irrigation facilities, prime crops in progress and his conscientious care of the land over the last seventeen years.
On July 10, the Tribal Council held a meeting. The written agenda for the meeting included an item titled "Bob Burrell request to enter into negotiations regarding termination of lease." This agenda item was included in response to Lieutenant Governor Montoya's meeting with the Burrells and the Burrells' June 18 letter. At the meeting, the Tribal Council created a committee, which included Lieutenant Governor Montoya but did not include Governor Armijo, to address the Burrells' concerns. Lieutenant Governor Montoya understood the purpose of the committee was to negotiate terms for the termination of the Burrells' lease.
In July and August, Lieutenant Governor Montoya and another member of the committee noticed the Burrells' crops appeared not to have been irrigated, and they hired a third party to bale and haul away some of the Burrells' crops. Mr. Burrell testified that this was done without his permission. Lieutenant Governor Montoya testified, however, that this action was undertaken because the Burrells' letter had told the Tribal Council to take care of their crops.
On August 5, Governor Armijo wrote to the BIA, explaining that Mr. Burrell was the lessee of Santa Ana lands under a lease approved by the BIA; that Mr. Burrell had advised him that he did not intend to continue with the lease and requested the Santa Ana Pueblo to cut the existing crop, which the Pueblo had done; that improvements to the land would become the property of the Pueblo on termination or expiration of the lease and thus the Pueblo would not compensate Mr. Burrell for such improvements; and that the BIA should take whatever steps necessary to terminate or enforce the lease based on Mr. Burrell's abandonment, including exercising the Pueblo's rights under the payment bond required under the lease.
The BIA responded by letter, stating that the agency had completed an inspection of the leased lands on August 27 and found Mr. Burrell to be in compliance with the provisions of the lease regarding soil conservation and the prohibition on alfalfa plowing during the last year of the lease *830 contract,[1] and that no damages could be assessed under that provision. The BIA further noted that Mr. Burrell had expected to recoup $9,750 in the years remaining on the lease for certain expenditures he had incurred out of his personal funds. The BIA ended the letter by explaining that the Santa Ana Pueblo should consider all that information in deciding on a fair settlement.
The Burrells moved from the land in late August or early September. Thereafter, Mr. Burrell met at least twice with members of the committee appointed to negotiate with him, including at least once with Lieutenant Governor Montoya. At the second meeting, which occurred on September 23, committee members provided Mr. Burrell with a proposed resolution that they were planning on submitting to the Tribal Council if the terms were satisfactory to Mr. Burrell. The resolution provided that the Santa Ana Pueblo would pay off Mr. Burrell's Farm Home Administration Loan,[2] waive the $15,000 in water charges that were due to the BIA, hire Mr. Burrell as a farm consultant for three years, and pay for Mr. Burrell's moving expenses. Mr. Burrell verbally accepted those terms, and the Tribal Council passed the resolution on September 24.
After Mr. Burrell had indicated his agreement with the proposed terms, however, he met with an attorney and thereafter decided that the terms were not satisfactory. The attorney sent a letter at the Burrells' request to the Santa Ana Pueblo on September 25. The letter contended that the Pueblo had violated the Burrells' constitutional rights by taking their property without due process and had subjected them to emotional abuse in the negotiation process, and the letter stated that the attorney was preparing for a federal lawsuit.
This lawsuit ensued. The Burrells' complaint raises claims against the Santa Ana Pueblo, Governor Armijo, and Lieutenant Governor Montoya[3] for violations of their civil rights under 42 U.S.C. §§ 1981, 1983, and 1985, as well as claims for breach of a federal farm lease and "respondeat superior." See Burrell v. Armijo, 456 F.3d 1159, 1161 (10th Cir.2006). The district court initially dismissed all the Burrells' claims because the court gave preclusive effect to a ruling from the Santa Ana Pueblo Tribal Court that the Pueblo and individual defendants were entitled to sovereign immunity. See id. On appeal, we rejected the court's use of preclusion but independently concluded that the Santa Ana Pueblo was entitled to sovereign immunity. Id. at 1162, 1173, 1174. We further concluded that the Burrells' complaint sufficiently alleged that Governor Armijo and Lieutenant Governor Montoya were not immune from suit by stating that prior to September, the Tribal Council had passed a resolution to buy out the Burrells for $500,000 but Governor Armijo and Lieutenant Governor Montoya had, in excess of their authority, refused to effectuate this resolution, and instead attempted themselves to negotiate with the Burrells for less money. We therefore remanded the § 1981 and § 1985 claims against Governor Armijo and Lieutenant Governor Montoya to the *831 district court for further consideration.[4]
On remand, Governor Armijo and Lieutenant Governor Montoya moved to dismiss these remaining claims on the basis that their actions were within the scope of their tribal authority and thus protected by sovereign immunity. The district court denied the motion, suggesting that the Burrells' allegations in their complaint that Governor Armijo and Lieutenant Governor Montoya ignored the Tribal Council's resolution were sufficient to establish that they had not acted within their official authority.
The case then went to trial. During the Burrells' case-in-chief, the district court excluded the Burrells' evidence regarding their allegations that the defendants had refused to carry out an alleged resolution of the Tribal Council prior to the September resolution. Thus, the evidence at trial established only that Governor Armijo ordered the Burrells to stop baling alfalfa during the night, and that Lieutenant Governor Montoya played a role in taking the Burrells' crops after the June 18 letter and also took part in negotiations with Mr. Burrell that culminated in the Tribal Council's September resolution.
The jury found both defendants had violated the Burrells' rights under § 1981 and had conspired to violate those rights in violation of § 1985(3). The jury awarded the Burrells $347,000 in compensatory damages and $1 million in punitive damages. Thereafter, Governor Armijo and Lieutenant Governor Montoya filed a joint motion for judgment as a matter of law under Fed.R.Civ.P. 50(b). The motion argued that the evidence showed that both defendants' actions were within their authority as tribal officials and they were therefore protected from suit by the doctrine of sovereign immunity. The motion further contended that the evidence was insufficient to establish the Burrells' substantive claims under § 1981 and § 1985 and did not support the punitive or compensatory damages award.
The district court largely denied the motion as to Governor Armijo, concluding that he was not entitled to sovereign immunity, sufficient evidence supported the Burrells' § 1981 discrimination claim, and the damages award was appropriate; the court, however, granted judgment as a matter of law to Governor Armijo on the Burrells' § 1985(3) conspiracy claim. The court granted judgment as a matter of law to Lieutenant Governor Montoya on all of the Burrells' claims, reasoning that he was entitled to sovereign immunity and that the evidence was insufficient to support liability against him under § 1981 or § 1985. Finally, the district court awarded the Burrells attorney's fees as prevailing parties against Governor Armijo in the amount of $160,875. See 42 U.S.C. § 1988(b).
Governor Armijo now appeals the denial of his motion for judgment as a matter of law, contending that he is entitled to sovereign immunity and that the evidence does not support the jury's finding as to liability or damages. The Burrells cross-appeal the district court's grant of judgment as a matter of law to Lieutenant Governor Montoya. The Burrells also cross-appeal the district court's earlier decision to strike portions of their complaint under Fed.R.Civ.P. 12(f). Finally, Governor Armijo appeals the award of attorney's fees.
*832 II. ANALYSIS
A. Motion for Judgment as a Matter of Law Based on Sovereign Immunity
We review de novo the district court's decision on a Rule 50(b) motion for judgment as a matter of law. See Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1243 (10th Cir.2009). A party is entitled to judgment as a matter of law only if all of the evidence, viewed in the light most favorable to the nonmoving party, reveals no legally sufficient evidentiary basis to find for the nonmoving party. See id. at 1244; Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.1984) (judgment as a matter of law may be entered "only if the evidence is such that without weighing the credibility of the witnesses the only reasonable conclusion is in [the moving party]'s favor").
"As sovereign powers, federally-recognized Indian tribes possess immunity from suit in federal court." Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir.2008). Tribal sovereign immunity generally extends to tribal officials acting within the scope of their official authority. See id. at 1296 ("[A] tribe's immunity generally immunizes tribal officials from claims made against them in their official capacities."). On the other hand, a tribe's "sovereign immunity does not extend to an official when the official is acting as an individual or outside the scope of those powers that have been delegated to him." Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (quotations omitted). Thus, the immunity question hinges on the breadth of official power the official enjoys and not whether the official is charged with using that power tortiously or wrongfully. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 692-93, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Wyoming v. United States, 279 F.3d 1214, 1229 (10th Cir.2002); Tenneco Oil Co. v. Sac & Fox Tribe of Indians of Okla., 725 F.2d 572, 576 (10th Cir.1984) (McKay, J., concurring).
1. Governor Armijo
The only conduct of Governor Armijo at issue in this case is his verbal and written order to the Burrells not to bale alfalfa between 9 p.m. and 7 a.m. The district court determined that Governor Armijo was not entitled to sovereign immunity and denied his motion for judgment as a matter of law under Rule 50(b), apparently reasoning that in issuing the no-baling order, he acted without the approval of the Tribal Council or the BIA. On appeal, Governor Armijo argues that he acted within the scope of his authority as a Pueblo official when he told the Burrells to stop their nighttime baling, and thus he is protected by the Pueblo's sovereign immunity. He contends that he was acting within his authority because he was responding to a Pueblo member's complaint about the noise and was doing so as Governor to essentially keep the peace.
The only unequivocal evidence at trial regarding whether Governor Armijo had the power to order the Burrells to stop baling alfalfa at night was the testimony of Juan Montoya, the tribal religious leader, who stated that Governor Armijo acted within his authority when he issued the no-baling directive:
Q: Can you tell us whether, based on your knowledge of the governor's position at Santa Ana [Pubelo], a directive like that to the Burrells would be something that's within the governor's authority to carry out?
A: Yes.
Mr. Montoya's testimony was consistent with that of Governor Armijo himself, who testified that the tribal governor is a sort of jack-of-all-trades. Governor Armijo testified: *833 "Being a tribal governor, you're the commander in chief. You're also a dogcatcher. You're also a marriage counselor. You just about hold any position, I guess you would say, within the tribe." He further explained that his position dealt with "problems that members of the pueblo have within the village," which Mr. Montoya testified included the noise complaint on June 1, 1997. Indeed, Mr. Burrell himself acknowledged that the tribal governor had fairly broad power to deal with internal matters within Pueblo land, and that the no-baling order was within Governor Armijo's power and authority.
Undisputed evidence regarding the structure of the Pueblo's government and how decisions were made further support the conclusion that Governor Armijo had the authority to issue the no-baling order. Evidence at trial generally demonstrated that the governor oversaw all regulatory and business matters within the Pueblo. This was consistent with testimony from both the Burrells that only actual officials within the Pueblo, as opposed to the Tribal Council, wielded any power. Thus, to the extent that the Tribal Council disagreed with any decision of the governor, the Tribal Council could later "rescind" the decision, or "direct [the governor] to undo it or change it." In this way, the Tribal Council had the authority to make the "final decision" on any agreements or transactions that came through the tribal office.
Given this decisionmaking framework, the Burrells testified that they repeatedly sought to "appeal" Governor Armijo's decision to the Tribal Council so that the Council would rescind or change it. Mr. Burrell testified that he talked with every Tribal Council member he came in contact with in order to have a Tribal Council meeting scheduled. Despite the fact that "everybody" knew about the no-baling directive, including members of the Tribal Council, no efforts were made to rescind the directive. To the contrary, there was testimony at trial that Governor Armijo reported what he had done to the Tribal Council and that the council found that action to be reasonable. Mr. Burrell testified that he ultimately gave up trying to talk to tribal officials about the baling order. Despite the Burrells' best efforts, the Tribal Council refused to lift the baling restriction until after they had moved off Pueblo land.
This evidence leads only to one reasonable conclusion: Governor Armijo acted within his authority as a tribal official when he issued the no-baling order. First, Mr. Montoya explicitly testified on this point. Second, the evidence relating to the structure of the Pueblo's government and how decisions were made demonstrates that Governor Armijo had the authority to issue the no-baling directive. Although the Tribal Council could "rescind" such an order after the fact through an "appeal" to the Council, no evidence was presented that suggested the governor did not have the initial power to act in the first place. Moreover, the evidence suggests that the Tribal Council was aware of the order and either expressly approved it as "reasonable" or at the very least took no action to change it, which demonstrates the Council's implicit approval of the action after the fact.
The Burrells rely heavily on a portion of testimony from Tribal Council member Manuel Christobal to support their position that Governor Armijo was acting outside the bounds of his authority. A reasonable jury, however, could not interpret Mr. Christobal's testimony in this manner. The Burrells point to the following exchange between counsel and Mr. Christobal:
*834 Q: Were the Burrells treated fairly by Governor Armijo?
A: In my opinion at the time, it was an issue that wasshouldn't have happened. You would have to look at the accountability of the leadership at the time. It was cocky, meaning they were irresponsible. Burrell's lease was going to end, and it would have been honorable within the Tribal Council to wait till the terms of the lease agreement came before the council, and the council would have made a decision whether to continue the lease agreement, but this type of behavior, in my opinion, was unjust. It was an issue that shouldn't have happened. It was it was random, you know?
This evidence is not at odds with the testimony from Mr. Montoya that Governor Armijo had the power to issue the no-baling directive. Nor does it call into question the evidence regarding the Pueblo's framework of governance. To begin, it is unclear whether this testimony even refers to the actions of Governor Armijo, as opposed to the actions of the Tribal Council. And in any event, to the extent that Mr. Christobal opined that Governor Armijo's action was "unjust," "random," "irresponsible," or not "honorable," such statements cannot be interpreted to mean that the action was undertaken outside the scope of the governor's authority. Rather, this testimony suggests only that the substance of the order was not fair or did not comport with the Pueblo's usual practicesan issue entirely distinct from the question of whether the governor's position authorized him to issue such orders at all. See Larson, 337 U.S. 682 at 692-93, 69 S.Ct. 1457; Wyoming, 279 F.3d at 1229; Tenneco Oil Co., 725 F.2d at 576 (McKay, J., concurring).[5]
The Burrells also suggest, as did the district court, that only the BIA could have ordered them to stop baling during the evening hours. No evidence at trial supports this suggestion. First, although the evidence showed that the BIA administered the Burrells' lease, there was no evidence that this power included the authority to regulate the Burrells' alfalfa baling hours or precluded Governor Armijo from doing so himself. To the contrary, the lease authorized the BIA to perform the following functions: to suspend rental payment when the leased land is held in trust; to approve subleases, assignments, or amendments to the lease; to resolve the amount of damages in the event of an oil and gas or right-of-way dispute; to notify the parties of the termination of federal trust responsibilities with respect to the land; to authorize or prohibit alfalfa plowing during the last year of the lease contract; to plan a soil conservation program and demand specific performance of the program or payment of specified damages; and to enter and inspect the land. At trial, there was no evidence that these provisions included the right to regulate the Burrells' alfalfa baling hours or that the provisions precluded Governor Armijo from issuing the no-baling order.
The Burrells point to the testimony of the BIA's soil conservationist, Clyde Sandoval, who testified that he "would check the compliance" of BIA farming leases, which included looking at the care of natural resources on the land, fertilizer use, crop rotation, and construction of fences. Mr. Sandoval's testimony, however, does not suggest that the BIA was charged with *835 resolving disputes as to when alfalfa could be baled.
The Burrells further point to a federal regulation they contend authorized the BIA to "respond to concerns" of the tribe and resolve conflicts, but the Burrells do not show when (if at all) evidence of this regulation and its applicability to the Burrells' lease was presented during trial. Finally, and in any event, the regulation does not support the conclusion that a tribal governor could not limit a land lessee's baling hours; the regulation relates only to the BIA's responsibilities regarding payment obligations and operating requirements in a lease, neither of which, in the Burrell lease, speaks to the issue of alfalfa baling hours.[6]
Because the trial evidence supports only the conclusion that Governor Armijo acted within the scope of his authority as a Pueblo official when he issued the no-baling directive, the district court erred in denying his motion for judgment as a matter of law based on sovereign immunity. See Keylon v. City of Albuquerque, 535 F.3d 1210, 1215-16 (10th Cir.2008) (concluding that a party is entitled to judgment as a matter of law when there are no genuine issues of fact as to whether the defendant is entitled to immunity). We therefore reverse the court on that issue and do not reach Governor Armijo's additional claims on appeal.
2. Lieutenant Governor Montoya
The evidence at trial showed that Lieutenant Governor Montoya visited with the Burrells in early June to discuss how to resolve their dilemma, was appointed by the Tribal Council as part of a committee to negotiate with the Burrells for a buyout of their lease, and later hired a third party which baled and hauled away some of the Burrells' crops when it appeared that the fields had been abandoned. The district court determined that Lieutenant Governor Montoya was acting within the scope of his authority because the Burrells had given him permission to do so in their June 18 letter to the Tribal Council.
On appeal, the Burrells do not argue that their letter did not authorize Lieutenant Governor Montoya to harvest their crops. Instead, the portion of the Burrells' brief on appeal relating to the sovereign immunity issue focuses primarily on the actions of Governor Armijo. Without specific and reasoned argument as to why the district court erred in granting Lieutenant Governor Montoya's motion for judgment as a matter of law, we have no basis to reverse the district court's decision. See United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir.1995) (on appeal, issues nominally raised but inadequately briefed need not be considered).[7]
*836 B. Striking Portions of the Burrells' Complaint
After we remanded to the district court for consideration of the Burrells' § 1981 and § 1985 claims against Governor Armijo and Lieutenant Governor Montoya, the district court granted the defendants' motion under Fed.R.Civ.P. 12(f) and struck several paragraphs of the complaint. See Fed.R.Civ.P. 12(f) (authorizing a court to strike any portion of a pleading that is "redundant, immaterial, impertinent, or scandalous"). On appeal, the Burrells argue that the district court erred in granting the motion to strike because the stricken paragraphs are related to their claims. We have thoroughly reviewed the portion of the complaint at issue and conclude that none of it is relevant to the question of sovereign immunity, the resolution of which moots the parties' appellate arguments on the § 1981 and § 1985 claims. In addition, the Burrells do not argue that the order prejudiced them in their presentation of evidence at trial. Accordingly, even if the court erred in striking portions of the complaintwhich we do not suggestany error was harmless.
C. Attorney's Fees
Because the district court's denial of Governor Armijo's motion for judgment as a matter of law left intact the jury's verdict against him on the Burrells' § 1985 discrimination claim, the court found that the Burrells were "prevailing parties" and awarded them $160,875 in attorney's fees under 42 U.S.C. § 1988(b). Governor Armijo appeals the fee award, contending that if this Court reverses the district court's decision refusing to grant him judgment as a matter of law and does not grant the Burrells any of the relief they request in their cross-appeal (conditions which have now been satisfied), then the Burrells would no longer be prevailing parties eligible for attorney's fees. See Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ("[A] plaintiff `prevails' [for purposes of § 1988(b)] when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("[P]laintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.") (quotations omitted); see also Ballard v. Muskogee Reg'l Med. Ctr., 238 F.3d 1250, 1254 (10th Cir.2001) ("[W]hen a claim of free speech retaliation under § 1983 is reversed on the merits, the court must also reverse an award of attorney fees [under § 1988(b)] to the plaintiff."). The Burrells do not present any argument to the contrary. Accordingly, we reverse the fee award.
III. CONCLUSION
The portion of the district court's order denying judgment as a matter of law to Governor Armijo on the basis of sovereign immunity is REVERSED. The portion of the order granting judgment as a matter of law to Lieutenant Governor Montoya on the same basis is AFFIRMED. We further AFFIRM the order striking portions of the Burrells' complaint. Finally, we REVERSE the order of the district court awarding the Burrells attorney's fees.
NOTES
[1] As the lease was set to expire in September 2000, this provision did not apply to Mr. Burrell at the time.
[2] In his brief, Lieutenant Governor Montoya states that the principal balance on the loan was more than $200,000, but he does not support that claim with a citation to the record.
[3] Other individual tribal officials are also named, but they have since been dismissed and are not relevant to this appeal.
[4] We also determined that the Burrells failed to state a § 1983 or breach of lease claim and therefore affirmed the district court's dismissal of those two claims. Burrell, 456 F.3d at 1174-75.
[5] For the same reason, the district court erred insofar as it suggested that Governor Armijo could not have been acting within his lawful authority if he was discriminating against the Burrells.
[6] 25 C.F.R. § 162.108 is titled "What are BIA's responsibilities in administering and enforcing leases" and provides:
(a) We will ensure that tenants meet their payment obligations to Indian landowners, through the collection of rent on behalf of the landowners and the prompt initiation of appropriate collection and enforcement actions. We will also assist landowners in the enforcement of payment obligations that run directly to them, and in the exercise of any negotiated remedies that apply in addition to specific remedies made available to us under these or other regulations.
(b) We will ensure that tenants comply with the operating requirements in their leases, through appropriate inspections and enforcement actions as needed to protect the interests of the Indian landowners and respond to concerns expressed by them. We will take immediate action to recover possession from trespassers operating without a lease, and take other emergency action as needed to preserve the value of the land.
[7] Because we do not disturb the order granting sovereign immunity to Lieutenant Governor Montoya, we do not consider the Burrells' additional claim that the district court erred in granting him judgment as a matter of law on the Burrells' § 1981 discrimination and § 1985(3) conspiracy claims based on the insufficiency of the evidence. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1366407/ | 192 Ga. App. 32 (1989)
383 S.E.2d 593
ROBINSON
v.
THE STATE.
A89A0670.
Court of Appeals of Georgia.
Decided June 6, 1989.
Rehearing Denied June 21, 1989.
Rosenzweig, Kam, Jones & McNabb, Douglas L. Dreyer, for appellant.
William G. Hamrick, Jr., District Attorney, Agnes McCabe, Monique F. Kirby, Assistant District Attorneys, for appellee.
BIRDSONG, Judge.
Appellant Bobby Lewis Robinson appeals his conviction for sale of cocaine and sentence.
Lieutenant Harris of the Troup County Sheriff's Department made a positive in-court identification of appellant as the person who *33 sold him drugs in a local motel. Laboratory analysis confirmed that the drugs tested positive as cocaine. The appellant testified in his own behalf and denied selling drugs to Harris. He testified that he was attending a birthday party for his son, and called alibi witnesses who corroborated his testimony. Held:
Appellant's sole enumeration of error is that the trial court erred in failing to suppress his pretrial statement to the police.
Appellant objected during an out-of-court hearing to the admission of this statement on the grounds that it was not relevant, that it improperly placed appellant's character in issue; and, that admission of the statement "would unnecessarily prejudice the minds of the jury ... even with ... curative instructions." Appellant also asserted that he was not provided with the ten-day notice required by Uniform Superior Court Rule 31.1.
During the out-of-court hearing, it was established that Deputy Riggs, after advising appellant of his Miranda rights and obtaining a valid waiver thereof, questioned appellant and obtained an oral statement from him. The trial court ruled that the statement was admissible, and that the other acts of misconduct referred to in the statement did not constitute "a similar transaction."
During the State's case in chief, Detective Riggs testified concerning this statement as follows: "[Appellant] told me that he had sold cocaine before but not in 1988 and he told me he had used cocaine and said that he did not sell cocaine ... concerning this arrest. This arrest was a mistake." Appellant renewed his objection to the admission of this statement on the grounds it was hearsay and because it "improperly places the defendant's character in issue...." The trial court overruled these objections.
It is the general rule that "`"[i]f evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant's character in issue."'" Richie v. State, 258 Ga. 361 (3) (369 SE2d 740); accord Stitt v. State, 256 Ga. 155 (1) (345 SE2d 578); Dampier v. State, 245 Ga. 427 (10) (265 SE2d 565); Hudson v. State, 237 Ga. 443, 444 (228 SE2d 834); see also Perez v. State, 182 Ga. App. 628 (3) (356 SE2d 706). It is an equally well-recognized general rule that "`[w]hat is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.'" Johnson v. State, 258 Ga. 506 (3) (371 SE2d 396); Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351).
In this case, the statement contained a reference to prior independent crimes committed by the appellant, specifically, the crimes of cocaine use and prior cocaine sale. These statements did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made to Detective *34 Riggs. Compare generally Stitt, supra at 157 with Florence v. State, 162 Ga. App. 830 (1) (292 SE2d 923). In fact, when the two statements regarding prior offenses are deleted from the statement in question, all that remains is appellant's strong denial that he committed the charged offense. Thus, the facts of this case are clearly distinguishable from Richie, Stitt, Dampier, Hudson and Perez.
The confession contained in the appellant's statement, regarding prior use of cocaine, had nothing whatsoever to do with the conduct for which he was on trial (sale of cocaine in 1988). "Indeed, the statement cannot be construed as anything other than a denial of the offenses for which he was on trial. Thus, the only possible evidentiary function which the [confession concerning prior cocaine use] could have served as far as the state was concerned was an impermissible one, i.e., to impugn the appellant's character before the jury by showing that he was generally prone to criminal conduct." Florence, supra at 832 (1).
Regarding the confession contained in the appellant's statement, regarding sale of cocaine on an unknown date prior to 1988, a somewhat different situation arises. In certain circumstances, evidence of independent crimes is admissible "`"for the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct,"'" (emphasis supplied) Williams v. State, 257 Ga. 761, 764, n. 3 (a) (363 SE2d 535), or for "some other rational connection with the offense for which [appellant] is being tried." Jones v. State, 257 Ga. 753, 757-758, n. 6 (363 SE2d 529); Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). "[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter." (Emphasis supplied.) Hamilton, supra at 75. Moreover, "`(i)t has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.'" Rainwater v. State, 256 Ga. 271, 272, n. 2 (347 SE2d 586), citing Robinson v. State, 246 Ga. 469, 470 (271 SE2d 786).
In the case sub judice, the trial court in essence ruled that the prior crimes confessed to in appellant's pretrial statement were not similar in nature to the offense with which he was charged. We are not convinced that a prior sale of a drug identical to the type with which an accused is currently charged with selling is not per se of sufficient similarity or of sufficient logical connection to comply with the second condition above discussed. However, rendering this point moot is the fact that the confession to prior drug crimes was admitted in evidence without any limiting instructions being given regarding *35 the purpose for which the jury could consider such evidence. (Compare with Johnson, supra at 508 (3), where no error was found in part because an appropriate limiting instruction was given.) Moreover, in the charge to the jury the trial court pertinently instructed that "you will give consideration to this case, taking into consideration all of the evidence ... and if in doing so you believe, beyond a reasonable doubt, that the defendant is guilty of the offense charged ... you would be authorized to convict...." (Emphasis supplied.) The introduction in evidence of a prior, undated offense of using cocaine (having no reasonable relevance to sale of cocaine in 1988), the introduction of evidence of a prior, undated sale of cocaine without benefit of a limiting instruction, coupled with a charge to the jury that it will take "into consideration all of the evidence," created a fair risk that the evidence of these prior drug offenses impugned the appellant's character by showing that he was generally prone to criminal conduct. Accordingly, we find "that this testimony ... was so prejudicial that its admission demands reversal." Merritt v. State, 255 Ga. 459 (2) (339 SE2d 594). Moreover, under these circumstances, any possible relevance which the evidence of an undated, prior cocaine sale might have regarding the sale of cocaine in 1988 is outweighed by the prejudice caused by admitting the evidence of both prior drug offenses, particularly in view of the issue discussed above regarding charges to the jury. Compare with Robinson, supra at 470. Finally, we note that the appellant vigorously contested his guilt with an aggressive alibi defense, under such circumstances, and in light of the posture of the State's evidence, we cannot say that this error was harmless.
Judgment reversed. Deen, P. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366412/ | 383 S.E.2d 72 (1989)
Cleo L. YOUNG
v.
WORKERS' COMPENSATION COMMISSIONER and Eastern Associated Coal Corporation.
No. 18620.
Supreme Court of Appeals of West Virginia.
July 13, 1989.
*73 Amos C. Wilson, Logan, for Young.
Bowles, McDavid, Graff & Love, Charleston, for Workers' Comp. Com'r et al.
MILLER, Justice:
This is an appeal by the claimant, Cleo L. Young, from a final order of the Workers' Compensation Appeal Board, dated April 15, 1988, which affirmed a ruling of the Workers' Compensation Commissioner granting the claimant a second injury life award effective March 26, 1986. The claimant contends that the Appeal Board was clearly wrong in not finding that his disability commenced on August 31, 1978, the date of injury.
The claimant was employed by Eastern Associated Coal Corporation as an underground coal miner. On August 31, 1978, the claimant, then thirty-three years old, injured his back at work.
The claimant's application for workers' compensation benefits was ruled compensable, and he was subsequently referred by the Commissioner to A.A. Abplanalp, M.D., an orthopedist, for evaluation. Dr. Abplanalp found that the claimant had not returned to work since the date of injury on the advice of his treating physicians and diagnosed the claimant as suffering from chronic lumbosacral strain. Dr. Abplanalp noted that the claimant had suffered previous back injuries, for which he had been granted a 15 percent permanent partial disability (PPD) award and estimated his total orthopedic impairment following the 1978 injury at 20 percent. Dr. Abplanalp also stated, however, that "this claimant should not resume work in the mines, but should either work outside the mine or be seen by Vocational Rehabilitation in an attempt to rehabilitate him into some other type of gainful employment."
In reliance on Dr. Abplanalp's report, the Commissioner, by order dated June 13, 1980, granted the claimant an additional 5 percent PPD award for his August 31, 1978 back injury. The claimant protested this ruling.
In support of his protest, the claimant submitted into evidence the office notes and testimony of Tony C. Majestro, M.D., an orthopedist and the claimant's treating physician. Dr. Majestro noted that he had treated the claimant for one of his prior back injuries and had recommended at that time that the claimant seek lighter employment outside of the mines. Dr. Majestro stated that the claimant had been off work since his August, 1978 back injury and diagnosed the claimant as suffering from chronic lumbosacral strain, probably superimposed on degenerative disc disease at L4-L5.
In a report of July 31, 1979, Dr. Majestro recommended that the claimant be referred to light work outside the mines and stated that if the claimant was unable to obtain such employment, "then I feel he probably will need to change his occupation and be returned to Voc. Rehab. for job retraining in lighter duty type capacity." Dr. Majestro testified that he believed the claimant was suffering from an underlying degenerative disc disease which had been aggravated by multiple back injuries and that the claimant would probably have recurrent back problems if he returned to his former employment.
The claimant also submitted vocational evaluations conducted by Arthur C. Ballas, Ph.D., and Paul L. Crawford, Ph.D., dated January 11, 1986, and January 28, 1986, respectively. These reports indicated that the claimant had an eighth-grade education and that his significant work experience consisted of his job in the mines as an uncertified electrician from 1968 to 1978. Dr. Ballas characterized this position as skilled labor requiring heavy physical exertion and stated that due to the highly specialized nature of the coal industry, the claimant had no significant transferable skills. Dr. Ballas further noted that the claimant had unsuccessfully attempted on several occasions to work as a heavy-equipment operator, but was forced to quit due to flareups of back pain.
Dr. Crawford concluded that the claimant had been unable to work for the past *74 ten years due to his back problems. Both evaluators concluded that although the claimant was relatively young, his marginal education, limited work background with no significant transferable skills, and incapacity for sustained physical effort on a regular basis rendered him functionally incapable of returning to the work he had done in the past and unlikely to benefit from rehabilitative efforts.
Finally, the claimant submitted a report, dated March 26, 1986, from Jorge de la Piedra, M.D., an orthopedist, and a subsequent report from R.A. Crawford, Jr., M.D. Both doctors concluded that the claimant was permanently and totally disabled from the combined effects of his injuries, lacked the residual functional capacity to return to gainful employment, and would not benefit from rehabilitation.
By order dated August 17, 1987, the Commissioner granted the claimant a permanent total disability (PTD) award, of which 5 percent was chargeable to the employer and the remainder was payable from the Second Injury Reserve Fund. The Commissioner found that the first medical evidence indicating that the claimant was permanently and totally disabled was Dr. de la Piedra's report dated March 26, 1986, and made the award payable from that date. The claimant appealed the Commissioner's ruling insofar as it did not make the PTD award effective from the date of injury. The Appeal Board, by order dated April 15, 1988, affirmed the Commissioner's ruling, finding that there was no evidence of record that the claimant was permanently and totally disabled from returning to work until Dr. de la Piedra's report.
The only issue in this appeal is whether the Appeal Board was clearly wrong in not making the PTD award relate back to the date of injury. W.Va.Code, 23-4-18, provides, in pertinent part: "In all cases where compensation is awarded or increased, the amount thereof shall be calculated and paid from the date of disability." In the Syllabus of Miracle v. Workers' Compensation Comm'r, ___ W.Va. ___, 383 S.E.2d 75 (1989), we held:
"A compensable injury which does not initially or of itself produce a permanent total disability may become progressively worse over time or combine with prior impairments under the second injury statute, W.Va.Code, 23-3-1, so as to result in a permanent total disability. In such circumstances, the `date of disability,' from which a permanent total disability award will be calculated and paid within the meaning of W.Va.Code, 23-4-18, is the first date on which medical or other expert evidence indicated that such permanent total disability existed."
In Miracle, we observed that often the question of whether an individual is rendered permanently and totally disabled involves not only medical, but vocational experts. The facts in this case are similar to those of Miracle in that the claimant was granted a PTD award payable from the Second Injury Reserve Fund. The second injury, which occurred in 1978, was a back injury which aggravated previous back injuries for which the claimant had been granted a 15 percent PPD award. The latest back injury was initially evaluated as increasing his orthopedic impairment by 5 percent.
It was not until the claimant moved for a second injury evaluation, and the medical and vocational experts began to evaluate his total impairment based upon all of his prior injuries, that the permanent total disability became apparent. Vocational evaluations made in January, 1986, established that, by virtue of his combined injuries, the claimant was unable to perform any remunerative work for which he is suited by experience or training.[1]
The vocational reports here were buttressed by the medical report in March, 1986, of Dr. de la Piedra, an orthopedist, who examined the claimant with regard to *75 all of his physical impairments as required under the second injury statute, W.Va. Code, 23-3-1.[2] This report concluded that the claimant was totally and permanently disabled. It is the date of this report, March 26, 1986, that the Commissioner selected as the date of the onset of the claimant's permanent total disability. Where there are multiple reports from various experts which establish that the claimant has currently reached permanent total disability status, the Commissioner has a reasonable discretion in selecting the beginning date for the award and payment of permanent total disability benefits. The selection should be based on the dates upon which the experts found the claimant to have been permanently and totally disabled.
In this case, we find no abuse of discretion in the Commissioner's selection of March 26, 1986, as the date from which the claimant's PTD award should be paid. We, therefore, affirm the orders of the Appeal Board and the Commissioner.
Affirmed.
NOTES
[1] This is the test for permanent total disability set out in Syllabus Point 3 of Posey v. State Workmen's Compensation Comm'r, 157 W.Va. 285, 201 S.E.2d 102 (1973):
"A claimant is permanently and totally disabled under our workmen's compensation statute when he is unable to perform any remunerative work in a field of work for which he is suited by experience or training. Each case will be considered on the peculiar facts for the reason that what may be totally disabling to one person would only be slightly disabling to another of a different background and experience."
See also W.Va.Code, 23-4-6(n).
[2] The pertinent portion of W.Va.Code, 23-3-1, is:
"If an employee who has a definitely ascertainable physical impairment, caused by a previous injury, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of such previous injury and a second injury received in the course of and as a result of his employment, the employer shall be chargeable only for the compensation payable for such second injury[.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366197/ | 761 P.2d 640 (1988)
C.K. LAWRENCE, also known as Charles K. Lawrence; Dorothy D. Lawrence; James W. Lawrence and Pat E. Lawrence, husband and wife; Dan B. Lawrence, Appellants (Defendants),
Clear Creek Ranch Co., Inc.; Charles K. Lawrence Order Buying Company, Inc.; Lawrence Land Company, Inc.; Linda Ann Love, formerly Linda Ann Lawrence, also known as Linda Lawrence Love; John D. Lawrence; Charles F. Lawrence, (Defendants),
v.
FARM CREDIT SYSTEM CAPITAL CORPORATION and Production Credit Association of the Midlands, formerly Wyoming Production Credit Association, Appellees (Plaintiffs).
FARM CREDIT SYSTEM CAPITAL CORPORATION and Production Credit Association of the Midlands, formerly Wyoming Production Credit Association, Appellants (Plaintiffs),
v.
CLEAR CREEK RANCH CO., INC.; Charles K. Lawrence Order Buying Company, Inc.; Lawrence Land Company, Inc.; James W. Lawrence; Dan B. Lawrence; Linda Ann Love, formerly Linda Ann Lawrence, also known as Linda Lawrence Love, Appellees (Defendants),
C.K. Lawrence, also known as Charles K. Lawrence; Dorothy D. Lawrence; Pat E. Lawrence, (Defendants).
Nos. 87-167, 87-168.
Supreme Court of Wyoming.
August 24, 1988.[*]
Petition for Rehearing Denied September 20, 1988.
Motion to Dismiss Denied September 20, 1988.
*642 Henry A. Burgess and Darlene L. Reiter of Burgess & Davis, Sheridan, for appellants in Case No. 87-167 and for appellees in Case No. 87-168.
Mark J. Murphy of Shoumaker and Murphy, Sheridan; and Howard P. Olsen, Jr. of Simmons, Raymond, Olsen, Ediger, Selzer & Ballew, P.C., Scottsbluff, Neb., for appellants in Case No. 87-168 and for appellees in Case No. 87-167.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Appellants Petition for Rehearing Denied September 20, 1988.
Appellee's Motion to Dismiss Denied September 20, 1988.
MACY, Justice.
These consolidated cases involve appeals from the judgment entered on a directed verdict in favor of Production Credit Association of the Midlands (Production Credit) and Farm Credit System Capital Corporation (Farm Credit) and against James W. Lawrence, Pat E. Lawrence, Charles K. Lawrence, and Dorothy D. Lawrence on two separate promissory notes and allowing foreclosure and sale of personal and real property used as security for those promissory notes, including after-acquired property. In addition, the judgment found that Charles K. Lawrence Order Buying Company, Inc. (Order Buying Company), Lawrence Land Company, Inc. (Land Company), James W. Lawrence, and Linda Lawrence Love were not liable as makers, guarantors, or co-signers on one promissory note and that Clear Creek Ranch Co., Inc. (Clear Creek) was not liable as a maker, guarantor, or co-signer on either promissory note. The judgment also dismissed the counterclaims of Dan B. Lawrence, Charles F. Lawrence, John D. Lawrence, Linda Lawrence Love, James W. Lawrence, and Pat E. Lawrence.
We affirm in part, reverse in part, and remand.
The parties' issues on appeal are summarized as follows:
1. Whether the trial court erred when it entered its judgment on the directed verdict:
a. awarding Production Credit and Farm Credit judgment against James W. Lawrence, Pat E. Lawrence, Charles K. Lawrence, and Dorothy D. Lawrence on the two separate promissory notes and allowing foreclosure on personal and real property used as security for the payment of the promissory notes;
b. awarding Production Credit and Farm Credit all but $100 from the proceeds *643 of the sale of the wool and sheep branded X7 and the accompanying incentive payments;
c. determining that Order Buying Company, Land Company, Clear Creek, James W. Lawrence, and Linda Lawrence Love were not liable as makers, guarantors, or co-signers on the January 19, 1984, promissory note; and
d. dismissing the counterclaims of Dan B. Lawrence, James W. Lawrence, and Pat E. Lawrence.
2. Whether the trial court erred in refusing to hear evidence relating to the financial collapse of the Wyoming Production Credit Association and Production Credit.
This action commenced with the filing of an original complaint on October 3, 1985, which was amended on two occasions.[1] Production Credit and Farm Credit alleged in the last amended complaint filed on September 18, 1986, that Order Buying Company, Land Company, Charles K. Lawrence, Dorothy D. Lawrence, Linda Lawrence Love, and James W. Lawrence, in consideration of an extension or renewal loan, executed and delivered to Wyoming Production Credit Association, now Production Credit, a promissory note in the principal amount of $950,000, plus interest, payable on or before December 15, 1984. The complaint also alleged that, to secure payment of a $955,000 promissory note and as part of that same transaction, Land Company executed a mortgage on approximately 6,841 acres of agricultural land.[2] It was further alleged that Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, and Linda Lawrence Love, doing business as Clear Creek, executed a security agreement pledging livestock, livestock proceeds or product, feed crops, equipment, and all after-acquired property as security for the payment of the $950,000 promissory note. The complaint then alleged that the conditions of the promissory note, mortgage, and security agreement were broken and that Charles K. Lawrence had converted secured properties. It also stated that there was a lien on the cash proceeds from the sale of sheep branded X7 and other after-acquired livestock or equipment and that Dan B. Lawrence claimed these proceeds. The complaint requested that the trial court find due and owing the amount of $686,918.25, which included interest through July 14, 1986, plus interest accruing thereafter at the rate of $215.1780 per day, and that the lien on the real and personal property in favor of Production Credit and Farm Credit be foreclosed with the property being sold to reduce the judgment. The complaint further asked that the proceeds from the sale be awarded to Production Credit and Farm Credit.
The complaint also alleged that James W. Lawrence and Pat E. Lawrence, in consideration for an extension or renewal loan, executed and delivered a promissory note for $49,000 payable on or before December 15, 1984, and executed a security agreement pledging to Wyoming Production Credit Association, now Production Credit, existing and future livestock as security for the loan. The complaint alleged that such promissory note was not paid when due and prayed for a judgment of $34,350.22 plus interest of $8.5240 per day from and after July 14, 1986, plus attorney's fees and costs. It also prayed for an order giving them authority to sell the security to reduce the judgment and giving them ownership of the proceeds from the sale of the sheep branded X7.
In response to Production Credit's and Farm Credit's last amended complaint, Clear Creek, Order Buying Company, Land *644 Company, Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, Pat E. Lawrence, Linda Lawrence Love, John D. Lawrence, Charles F. Lawrence, and Dan B. Lawrence (defendants) filed an answer and counterclaim on October 3, 1986. In their answer, the defendants alleged that Dan B. Lawrence was the owner of the sheep branded X7 and that he was legally entitled to those proceeds. Their counterclaim alleged that Dan B. Lawrence, James W. Lawrence, Pat E. Lawrence, Robert S. Love, and Linda Lawrence Love had applied for loans from the Farmers Home Administration and the Small Business Administration but that Production Credit arbitrarily, capriciously, and maliciously refused to sign nondisturbance agreements with the intent to damage, humiliate, and embarrass them; that Production Credit and Farm Credit damaged defendants by objecting to their securing a loan with the State of Wyoming Farm Loan Board; and that Production Credit and Farm Credit had brought their action in bad faith. It also alleged that Production Credit and Farm Credit had intentionally harassed, embarrassed, and denied James W. Lawrence, Dan B. Lawrence, and Linda Lawrence Love an opportunity to avail themselves of federal assistance in a young and beginning ranchers program; and that each of the individual persons signing the promissory notes had done so as a guarantor and not as a maker. Finally, it alleged that Production Credit had breached an agreement to advance to defendants $100,000 from the State of Wyoming Farm Loan Board loan proceeds; and that Production Credit had breached its agreement with each defendant to extend between $955,000 and $2,000,000 as a revolving line of credit until December 15, 1990, by bringing the lawsuit.
When faced with a directed verdict question, this Court's applicable standards of review are as follows:
In reviewing the grant of a directed verdict by a trial court, consideration must be given to all evidence favorable to [the] party against whom the motion is directed, as well as to all reasonable and legitimate inferences which might be drawn therefrom. Whether or not the evidence so viewed is sufficient to create an issue for the jury is solely a question of law to be answered by the trial court. That court must determine whether or not the evidence is such that, without weighing the credibility of the witnesses[] or otherwise[] considering the weight of the evidence, there is but one conclusion as to [the] verdict which men of reason could reach.
Town of Jackson v. Shaw, 569 P.2d 1246, 1250 (Wyo. 1977) (citations and footnote omitted).
"In determining whether a verdict should have been directed, the appellate court applies the same standard as does the trial court in passing on the motion originally. * * * Whether a verdict should be directed is a question of law and on those questions litigants are entitled to full review by the appellate court without special deference to the views of the trial court." 9 Wright and Miller, Federal Practice and Procedure, Civil, § 2536, p. 595, and § 2524, pp. 541-542.
Carey v. Jackson, 603 P.2d 868, 877 (Wyo. 1979).
[S]ince a directed verdict deprives the parties of a determination of the facts by a jury, such motion should be cautiously and sparingly granted.
Cody v. Atkins, 658 P.2d 59, 61 (Wyo. 1983). See also Sims v. General Motors Corporation, 751 P.2d 357 (Wyo. 1988).
Applying these rules, we will decide whether the trial court erred when it directed a verdict awarding Production Credit and Farm Credit judgment against James W. Lawrence, Pat E. Lawrence, Charles K. Lawrence, and Dorothy D. Lawrence on the two separate promissory notes and allowing foreclosure on the personal and real property used as security for the payment of those promissory notes. We begin by looking at the documents themselves to determine if they are ambiguous. As stated in Farr v. Link, 746 P.2d 431, 433 (Wyo. 1987):
Our rules of contract construction are well established. The construction or interpretation *645 of a contract is a question of law for the court. The basic purpose in construing or interpreting a contract is to determine the intent of the parties. If the contract is in writing and the language is clear and not ambiguous, the intention of the parties is to be secured from the words of the agreement.
* * * An ambiguous contract is an agreement which is obscure in its meaning because of indefiniteness of expression or because of a double meaning being present. Whether ambiguity exists in a contract is a question of law.
(Citations omitted.) We have also stated that, if a contract is unambiguous, this Court will not rewrite that contract under the guise of interpretation. Arnold v. Mountain West Farm Bureau Mutual Insurance Company, Inc., 707 P.2d 161 (Wyo. 1985).
Examination of the record indicates the promissory note of January 19, 1984, in the amount of $950,000 signed by Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, Linda Lawrence Love, Order Buying Company, Land Company, and Clear Creek is clear and unambiguous. That promissory note provides in applicable part:
On or before December 15, 1984 for value received, I, we or either of us promise to pay to the order of Wyoming PRODUCTION CREDIT ASSOCIATION, at its office in the city of Casper, State of Wyoming, Nine Hundred Fifty Thousand and NO/100 Dollars, $950,000.00 * * *.
The promissory note of January 23, 1984, in the amount of $49,000 signed by James W. Lawrence and Pat E. Lawrence uses the same applicable language. That promissory note provides in part:
On or before February 15, 1985 for value received, I, we or either of us promise to pay to the order of Wyoming PRODUCTION CREDIT ASSOCIATION, at its office in the city of Casper, State of Wyoming, Forty-Nine Thousand and NO/100 Dollars, $49,000.00 * * *.
Likewise, the security agreement pledging livestock, equipment, and after-acquired property signed by Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, and Linda Lawrence Love as security for the payment of the January 19, 1984, promissory note and the security agreement pledging livestock and after-acquired livestock signed by James W. Lawrence and Pat E. Lawrence as security for the payment of the January 23, 1984, promissory note are clear and unequivocal.
The sole discrepancy arises over the meaning of certain language encompassed in the mortgage which was executed by Land Company on a $955,000 promissory note and which was later used as security for the January 19, 1984, promissory note in the amount of $950,000. That language specifically states:
PROVIDED, ALWAYS, and these presents are upon this express condition, that if the said Mortgagor shall and does well and truly pay or cause to be paid to the said Mortgagee, its successors and assigns, the sum of $955,000.00 according to the conditions of one promissory note dated January 12, 1983 executed by Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, Linda Lawrence Love, dba Clear Creek Ranch, Charles K. Lawrence[,] Order Buying Co., Inc., Lawrence Land Company, executed by the Mortgagor and payable to the order of the Mortgagee, and of any and all renewals or extensions thereof, together with interest thereon, at such rate or rates as may be specified therein, and such further amount not exceeding $1,045,000.00 which may be advanced in the future by the Mortgagee to the Mortgagor, but if advanced, to be advanced prior to December 15, 1990, making the aggregate and ultimate amount secured hereby the sum of $2,000,000.00, and the whole amount to become due and payable on or before December 15, 1990, with interest as aforesaid according to the promissory note or notes to be executed by the Mortgagor payable to the order of the Mortgagee, which sum or sums of money the said Mortgagor hereby covenants to pay * * *.
(Emphasis added.) Those of the Lawrence family who brought this appeal contend *646 that this language constituted an obligation on the part of Production Credit and Farm Credit to advance credit and that, in bringing this suit, they breached that agreement. Conversely, Production Credit and Farm Credit assert that the document, through use of the word "may," provided that they could advance additional moneys if they desired and that they were not under any mandatory obligation to do so.
In Bethurem v. Hammett, 736 P.2d 1128, 1136 (Wyo. 1987), we stated:
As a general rule, courts will ascertain the intentions of the parties by interpreting the language that is used in the contract and will not resort to adding what has been omitted or omitting what has been added. If the contract is in writing and the language is clear and unambiguous, the intention is to be established from the words of the contract by considering the contract as a whole and reading each provision in light of all other provisions.
(Citations omitted.) We have further stated that, if a contract is free from ambiguity, we need only to look at the plain meaning of the words in our effort to ferret out the intention of the parties. E & E Mining, Inc. v. Flying "D" Group, Inc., 718 P.2d 58 (Wyo. 1986).
According to 26A Words and Phrases, May, 386 (1953), and the numerous cases cited therein, the word "may" is generally used to imply permissive or discretional, rather than mandatory, obligation. See also Filtrol Corp. v. Loose, 209 F.2d 10 (10th Cir.1953); Aroostook Valley Railroad Company v. Bangor & Aroostook Railroad Company, 455 A.2d 431 (Me. 1983); and Leghorn v. Wieland, 289 So. 2d 745 (Fla.App. 1974). We see no reason why that approach should not be followed by this Court in this instance. While we also recognize that some courts adhere to the rule of law that the meaning of the word "may" must be determined from the whole contract and the manifest intention of the parties as expressed therein, Burgess Mining & Construction Corp. v. City of Bessemer, 294 Ala. 74, 312 So. 2d 24 (1975); Carleno Coal Sales v. Ramsay Coal Co., 129 Colo. 393, 270 P.2d 755 (1954), an application of that rule with regard to this case dictates the same conclusion. We hold that Production Credit and Farm Credit were not under a mandatory obligation to lend any amount of money to the Lawrences other than as encompassed within the promissory notes and that the mortgage executed as security for the payment of the January 19, 1984, promissory note is clear and unambiguous on its face.
The Lawrences assert that testimony presented at trial shows the agreements were meant to be "line of credit loans" rather than simple promissory notes which were due and owing on December 15, 1984, and February 15, 1985, respectively. We will not deviate in this case from our rule of law that, unless there is an ambiguity or lack of clarity in the terms of a contract, this Court will not look beyond the contract to ascertain its meaning. Bethurem, 736 P.2d 1128; Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of County of Converse, 697 P.2d 1040 (Wyo. 1985). If the intent of the parties can be ascertained from the plain and unambiguous language of the contract, such should be done as a matter of law without reference to extrinsic evidence. Id. Accordingly, we hold that the trial court properly directed a verdict awarding Production Credit and Farm Credit judgment against James W. Lawrence, Pat E. Lawrence, Charles K. Lawrence, and Dorothy D. Lawrence on the two separate promissory notes and allowing foreclosure on the personal and real property used as security for the payment of those promissory notes.
We will now decide whether the trial court erred when it found that the proceeds from the sale of the wool and sheep branded X7 and the accompanying incentive payments less $100 belonged to Production Credit and Farm Credit pursuant to the security agreement executed by Charles K. Lawrence, Dorothy D. Lawrence, James W. Lawrence, and Linda Lawrence Love as security for the January 19, *647 1984, promissory note for $950,000.[3] Resolution of this issue requires a two-step inquiry. First, we must determine if the after-acquired property clause in the security agreement executed in connection with the January 19 promissory note was sufficiently descriptive to support the trial court's finding that Production Credit and Farm Credit had a security interest which would reach these aforementioned properties. If we answer that question in the affirmative, we then must further determine whether the trial court properly directed a verdict in favor of Production Credit and Farm Credit upon its finding that Charles K. Lawrence was the actual purchaser and owner of these sheep, thus bringing these sheep and the proceeds therefrom within the coverage of the security agreement.
We stated previously that the security agreements are clear and unequivocal. Therefore, we will look solely to the words of the agreement to determine the intention of the parties, considering the contract as a whole and reading each provision in light of all other provisions. Inserted in typewritten form on the front page of the security agreement covering the January 19, 1984, promissory note are the following descriptions of the collateral:
This security agreement is intended to cover 445.5 head of cattle, branded on the left ribs, or on the left hip, or on the left ribs and shoulder or left ribs or left shoulder, or on the left hip and shoulder, or on the left hip and shoulder, or on the left ribs or on the left ribs and more particularly described as: 295 cows[,] 125.5 calves[,] 25 bulls[.]
Together with 2,469 head of sheep branded on the right hip or on the right shoulder or back, or on the left shoulder, or on the left shoulder and more particularly described as: 2,389 ewes[,] 80 bucks[.]
Together with all natural increase and additions to the above-described livestock, including any livestock to be purchased.
Together with the 1984 wool clip, before and after shearing.
Together with all hay, grain and feed on hand now growing or to be acquired.
Together with all machinery and equipment now owned by said debtors, and consisting of, but not limited to the following, and including any machinery and equipment to be acquired[.]
Together with all production of the above described collateral including all proceeds from the sale, transfer or disposition thereof.
The relevant provision regarding after-acquired collateral is found in the third paragraph which provides that the agreement includes "all natural increase and additions to the above-described livestock, including any livestock to be purchased." Additionally, the second page of the security agreement contains this standardized after-acquired property clause:
The Secured Party and Debtor agree: that, to the maximum extent permitted by law, any and all collateral of like type or kind as that described herein as part of the collateral, now owned or hereafter acquired by the Debtor shall secure all obligations covered by this Security Agreement, and Secured Party shall have a security interest in all such collateral by reason of this agreement, for the purposes herein described; that the buyer in the ordinary course of business (other than a person buying farm products from a person engaged in farming operations) may purchase the collateral herein described free of this security interest. Except for this latter provision of the Uniform Commercial Code, the Debtor is not otherwise authorized to sell, exchange, or otherwise dispose of the collateral. The parties hereto further *648 agree: that this Security Agreement includes all live stock now owned or hereafter acquired by Debtor, whether by purchase, natural increase, or otherwise during the continuance of this Agreement * * *.
(Emphasis added.)
W.S. XX-XX-XXX (U.C.C. § 9-204) establishes the validity of after-acquired property clauses in security agreements. That section provides in pertinent part:
(a) Except as provided in subsection (b) of this section, a security agreement may provide that any or all obligations covered by the security agreement are to be secured by after-acquired collateral.
(b) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (W.S. XX-XX-XXX (9-314)) when given as additional security unless the debtor acquires rights in them within ten (10) days after the secured party gives value.
The sufficiency of a collateral description is governed by W.S. XX-XX-XXX (U.C.C. § 9-110), which states:
For the purposes of this article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.
Of necessity, the description of property in an after-acquired property clause will be by type, as a more specific description generally is not possible. See 8 R. Anderson, Uniform Commercial Code § 9-110:20 (1985). In J. White and R. Summers, U.C.C.2d HB § 23-16 at 963 (1980), the authors state:
[N]early all courts permit broad descriptions with respect to shifting and after-acquired collateral, and we applaud this permissiveness. The floating lien with its after-acquired property clause requires broad descriptions.
The Fifth Circuit Court of Appeals, in a case involving after-acquired livestock, said:
We hold that the description of the farmers' swine in the FmHA security agreement, to wit, "all livestock ... now owned or hereafter acquired by Debtor, together with all increases, replacements, substitutions, and additions thereto," reasonably identified the hogs either owned by the farmers at the time the loans were made or acquired thereafter, either by purchase, trade, procreation, or otherwise.
United States v. Southeast Mississippi Livestock Farmers Association, 619 F.2d 435, 438 (5th Cir.1980). Similarly, in 8 R. Anderson, Uniform Commercial Code, supra at 613, the author states that "[a]fter-acquired property is sufficiently described by the phrase `all livestock hereafter acquired.'"
In Landen v. Production Credit Association of Midlands, 737 P.2d 1325 (Wyo. 1987), we said that specific typewritten descriptions of collateral inserted by the parties in a security agreement control over a general description in the standard printed form. In this case we do not perceive any inconsistency between the two after-acquired property provisions. Even if we look solely at the typewritten provisions inserted by the parties, however, it is clear that the after-acquired collateral clause is sufficient to reach the sheep branded X7. These inserted provisions initially describe, by number and brand, the existing sheep and cattle that are covered by the agreement. The after-acquired property provision, in a separate paragraph, then provides that any additions to the previously described livestock are to be covered by the agreement, including "any livestock to be purchased." The after-acquired clause is less specific because, in the nature of the business, it must be. The fact that a different brand was placed on the later purchased sheep does not affect the result if the sheep were in fact owned by the debtor. Were we to hold otherwise, any debtor/rancher subject to a similar security agreement could avoid the creditor's security interest in his livestock simply by changing the brand on all livestock replacements or additions. We hold that the sheep branded X7 were reasonably identified by *649 the security agreement in this case.[4] If the sheep were indeed purchased or owned by Charles K. Lawrence, the proceeds from the sale of such sheep were subject to the security interest of Production Credit and Farm Credit.
The testimony and other evidence regarding who actually purchased and owned the sheep branded X7 is complicated and somewhat conflicting. We note initially, however, that the record discloses that Dan B. Lawrence and James W. Lawrence, who are both sons of Charles K. Lawrence, were co-owners of the X7 brand. Pursuant to W.S. XX-XX-XXX, a brand is evidence of ownership of livestock in legal proceedings involving title to the livestock.
The record reveals that in April 1984 a severe spring blizzard caused major livestock losses at the Clear Creek Ranch. As a result, Charles K. Lawrence and Dorothy D. Lawrence applied for and received a ranch disaster loan in the amount of $253,000 from the Small Business Administration. A separate family ranch (the Inchauspe Ranch) was pledged as collateral on this loan. The specific purposes for the loan were stated in the loan agreement as being:
A. Approximately $116,600 to replace sheep.
B. Approximately $132,900 to replace cattle.
C. Approximately $3,500 to repair fencing.
Disbursement of the loan funds was made by sending Charles K. Lawrence and Dorothy D. Lawrence two checks totaling $120,000 on December 31, 1984, and one check for $133,000 on March 12, 1985.
The testimony regarding the application of these loan funds is conflicting. Charles K. Lawrence testified that, with the loan funds, he purchased sheep and cattle "indirectly" through the Order Buying Company, including the sheep branded X7. Charles K. Lawrence further testified that the X7 brand was used exclusively on the sheep purchased with the Small Business Administration loan funds.[5] Charles K. Lawrence additionally stated that, although he purchased the sheep through his Order Buying Company and although they were purchased with funds he received from the Small Business Administration loan, he never owned these sheep.
Conversely, Dan B. Lawrence testified that he purchased the sheep branded X7 with funds he borrowed from the First Interstate Bank of Buffalo (First Interstate). In a sense, and as a result of a series of transactions, the testimony of both Charles K. Lawrence and Dan B. Lawrence is supported by the record. The record reveals that Dan B. Lawrence initially attempted to obtain a loan from First Interstate for the purchase of sheep by giving the bank a purchase money security interest in the sheep. First Interstate, however, would not approve the loan without additional collateral. Consequently, Charles K. Lawrence and Dan B. Lawrence jointly applied for the loan, and Charles K. Lawrence pledged, as additional collateral, a certificate of deposit in the amount of $100,000. This certificate of deposit was obtained with funds received from the Small Business Administration loan. First Interstate then approved two loans to Charles K. Lawrence and Dan B. Lawrence, one for $133,000 and the other for $100,000. Charles K. Lawrence and Dan B. Lawrence both signed the promissory notes evidencing the loans. The $133,000 *650 loan was secured by a purchase money security interest in the sheep branded X7, and the $100,000 loan was secured by the certificate of deposit.
The proceeds from the loans were deposited in an account with First Interstate held either by Charles K. Lawrence, Dan B. Lawrence, and Dorothy D. Lawrence, jointly, or by Dan B. Lawrence, individually. A discrepancy as to this fact appears in the testimony. The sheep branded X7 were purchased with a check written on the Order Buying Company account by Dan B. Lawrence, who was a signatory on that account. Thereafter, Dan B. Lawrence wrote an equivalent check to the Order Buying Company out of the account holding the First Interstate loan proceeds. Upon purchase of the sheep branded X7, Dan B. Lawrence told the brand inspector to enter the name of Charles K. Lawrence as owner on the certificate of ownership prepared by the brand inspector. The bills of sale for the sheep branded X7 designate Charles K. Lawrence as the purchaser.
In directing a verdict for Production Credit and Farm Credit on the issue of whether they were entitled to the proceeds from the sale of the sheep branded X7, the trial court said, in reference to the above-elaborated evidence:
I believe that the testimony is clear in this case and I don't think reasonable men could differ, but that those sheep were bought with disaster funds. Mr. Lawrence even testified that is really what was used. They channeled those funds through First Interstate Bank so the loan went to Dan Lawrence, but I am afraid I am not going to buy it. Anyway, those X7 over Bar sheep were sheep used to replace other animals lost, and as such, come within the security agreement as after-acquired sheep, and those funds will be set over to the [Production Credit].
We do not agree with the trial court's resolution of this issue. In conformance with our standards of review of a directed verdict as set forth previously, we are not able to say that, on the basis of the evidence in the record and giving consideration to the evidence favorable to appellants without considering the credibility of the witnesses, there is but one conclusion which men of reason could reach as to the ownership of the sheep branded X7. This is a question of fact, and the conflicting evidence of ownership should have been submitted to the jury. Consequently, we reverse this aspect of the trial court's decision and remand for jury consideration the question of whether Charles K. Lawrence purchased or owned the sheep branded X7. Should the jury find that Charles K. Lawrence purchased or owned the sheep branded X7, then, as a matter of law, the sheep branded X7 and proceeds therefrom are after-acquired collateral falling within the coverage of the security agreement.
We now decide whether the trial court erred when it ruled that Order Buying Company, Land Company, Clear Creek, James W. Lawrence, and Linda Lawrence Love were not liable as makers, guarantors, or co-signers on the January 19, 1984, promissory note. That promissory note was signed in the following manner:
It is clear that Order Buying Company, Land Company, Clear Creek, James W. Lawrence, and Linda Lawrence Love each signed the disputed promissory note.
In Gennings v. First National Bank at Thermopolis, 654 P.2d 154 (Wyo. 1982), a case with similar facts to those in the present case, we recognized that a maker *651 of a promissory note, absent a valid defense, becomes individually responsible for its repayment and that, when an instrument does not specify otherwise, a person who, along with another, signed a promissory note in the lower right corner on lines for signatures of makers, even though signing as an accommodation party, was liable as a maker. Although Order Buying Company, Land Company, Clear Creek, James W. Lawrence, and Linda Lawrence Love each contend that this case is not applicable because it improperly applies Article 3, Chapter 21, Title 34 of the Wyoming statutes entitled "Commercial Paper," we conclude that the applicability or inapplicability of that section is not dispositive. We hold such argument is groundless and meritless, and we see no reason why the rules as stated in Gennings should not be applied here.
The sole justification for their position that they should not be held liable as makers of the promissory note is that the promissory note lacked adequate consideration. As evidenced by the record, $950,000 were received by Charles K. Lawrence and Dorothy D. Lawrence from the Wyoming Production Credit Association. The fact that they alone actually received those moneys apart from the others who signed the promissory note is immaterial. It is not essential that the consideration move to each of the makers in order to recover on a promise made by several parties. Gennings, 654 P.2d 154. See also generally Houghton v. Thompson, 57 Wyo. 196, 115 P.2d 654 (1941); and Barrett v. Mahnken, 6 Wyo. 541, 48 P. 202 (1897). We hold that the trial court erred when it found those parties were not liable as makers, guarantors, or signers on the January 19, 1984, promissory note, and we reverse that part of the trial court's decision.
We will also determine whether the trial court erred when it directed a verdict dismissing the counterclaims of Dan B. Lawrence, James W. Lawrence, and Pat E. Lawrence which alleged that Production Credit had arbitrarily, capriciously, and maliciously refused to sign nondisturbance agreements with other lenders and otherwise denied them opportunities to avail themselves of additional financing; and that Production Credit and Farm Credit brought this action in bad faith damaging each of their respective credit reputations and financial positions.[6] Review of the record shows that there is absolutely no evidence which suggests that Production Credit improperly manipulated the contract provisions to its benefit and to the Lawrences' detriment. The fact that the Lawrences believed Production Credit would not foreclose on the promissory notes when they became due and the fact that the economics of the ranch or farm industry had gradually caused the Lawrences to possess a weakened financial position are not enough to create an issue of material fact sufficient for determination by a jury with respect to their claims of bad faith in contract or bad faith in tort.
The refusal by Production Credit to provide nondisturbance agreements to the Lawrences so that they could get additional financing does not in and of itself show that Production Credit acted in bad faith. Production Credit was not obligated to sign any of the nondisturbance agreements. It simply determined that giving such agreements was not in its best financial interest as a creditor of the Lawrences. The same reasoning refutes the claims of the Lawrences with regard to assertions that Production Credit improperly refused to personally loan them additional moneys. Nothing in the record discloses that Production Credit or Farm Credit unjustly caused the sale of any of the Lawrences' livestock or livestock products. Production Credit and Farm Credit were entitled to foreclose on the respective promissory notes, security agreements, and mortgage. Actions taken after that time by the Lawrences in an attempt to meet any of their debt obligations to Production Credit and Farm Credit were taken freely by the Lawrences *652 in their own best judgment and cannot be said to have been compelled by Production Credit or Farm Credit.
Production Credit and Farm Credit did not improperly join or continue to include Dan B. Lawrence, James W. Lawrence, and Pat E. Lawrence as parties to this suit. Pat E. Lawrence and James W. Lawrence were signatories respectively on one and both of the promissory notes in this case. Additionally, Dan B. Lawrence and James W. Lawrence were co-owners in the X7 brand, and proceeds from the sale of livestock with that brand were directly in dispute here because Dan B. Lawrence claimed he was entitled to such proceeds rather than Production Credit or Farm Credit. As stated in part in W.S. XX-XX-XXX:
[A] brand shall be received as evidence of ownership in all legal proceedings involving title to the animal.
Given that a brand signifies ownership in livestock and, therefore, arguably ownership in the proceeds from such livestock, we hold that Production Credit and Farm Credit had sufficient cause to file suit against them because of their ownership interest in the brand. Dan B. Lawrence's claim that, because he paid off his loan with Production Credit, it relieved him as a party to this suit is groundless. The loan paid by him to Production Credit was a distinct and separate loan having no connection whatsoever with those loans in this case.
An examination of the record further discloses that Pat E. Lawrence failed to appear at trial or by any other means to personally establish the counterclaims she alleged against Production Credit and Farm credit. Insofar as the testimony of her husband, James W. Lawrence, may be said to be in support of her claims, we note that such testimony is unconvincing for the reasons previously enumerated.
Even though we give a party against whom a directed verdict has been granted every favorable consideration and recognize the difficulty in sustaining a directed verdict because of our standards of review, we cannot say that the trial court acted improperly when it directed a verdict dismissing the counterclaims of Dan B. Lawrence, James W. Lawrence, and Pat E. Lawrence. We hold that those parties failed to meet the burden of proof placed upon them to show that an actionable cause existed against Production Credit and Farm Credit.
Finally, we will decide whether or not the trial court erred in refusing to hear evidence relating to the financial problems of the Wyoming Production Credit Association and Production Credit. In the case of Jahnke v. State, 682 P.2d 991, 1005 (Wyo. 1984), we summarized our long standing standard of review regarding the admissibility of evidence:
The rule which this court has applied with respect to rulings as to admissibility of evidence is articulated in Taylor v. State, Wyo., 642 P.2d 1294, 1295 (1982), as follows:
"It has been held generally that the admission of evidence is within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed. It is also the general rule that the foundation, relevance, competency, materiality, and remoteness are within the sound discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion." (Footnotes omitted.)
The burden of establishing the clear abuse of discretion must be assumed by the party who attacks the ruling of the trial court. That party must establish that the ruling of the trial court was erroneous and that it did affect substantial rights of the party. The trial court in the exercise of its discretion can exclude even relevant evidence when there are countervailing considerations such as "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Rule 403, W.R.E.
The definition that this court has espoused of an abuse of discretion is found *653 in Martinez v. State, Wyo., 611 P.2d 831, 838 (1980), where it is stated as follows:
"* * * An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * *"
* * * * * *
"In the context of evidentiary rulings at trial, this court has long adhered to the doctrine that a sufficient offer of proof is necessary so that this court may be adequately apprised of the nature of the excluded testimony. The dual purpose of this requirement is to enable the trial court to be fully advised in the exercise of its discretion regarding the admission of evidence, and to enable the reviewing court to determine if prejudicial error resulted from the exclusion of the proffered testimony." Garcia v. State, Wyo., 667 P.2d 1148, 1155 (1983).
Quoted in Sims, 751 P.2d at 362 (citations omitted).
In this case, the Lawrences, through an offer of proof at trial and their appellate brief, assert that evidence relating to the financial problems of the Wyoming Production Credit Association and Production Credit causing the restructuring of those associations was relevant because such changes resulted in the unjust foreclosure of numerous loans in order to collect assets and money to "shore up" the farm credit system in other areas. The Lawrences reason that, in order to save the farm credit system, loan standards in the areas of credit it criteria and refinancing were changed, which resulted in the bad faith foreclosure of numerous loans by Production Credit and/or Farm Credit, including their own. The Lawrences further assert that capital was transferred to other offices in bad faith causing the Wyoming Production Credit Association to have insufficient moneys to loan to its patrons in its own area.
While we recognize that such evidence may be appropriate for a shareholder's derivative action, we fail to see how this evidence is relevant to the subject matter involved in this case. Production Credit and Farm Credit were entitled to foreclose on the respective promissory notes, security agreements, and mortgage when each of the promissory notes became due. Production Credit and Farm Credit had no duty to lend any additional moneys to the Lawrences. Production Credit and Farm Credit have the right to operate their businesses as they themselves deem proper and in their best business interest within their own corporate hierarchy of officers, directors, employees, and shareholders. See generally the Wyoming Business Corporation Act, W.S. 17-1-101 through XX-X-XXXX. We hold that the trial court acted properly when it excluded evidence regarding the apparent financial problems of the Wyoming Production Credit Association and Production Credit.
We are sensitive to the plight of the American family farm and ranch and are fully aware that nationwide individuals like each of the Lawrences are losing their land, their homes, their personal property, and, in general, their way of life. We hold that Production Credit and Farm Credit acted properly throughout their dealings with the Lawrences within these regards.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.
URBIGKIT, J., filed an opinion concurring in part and dissenting in part.
URBIGKIT, Justice, concurring in part and dissenting in part.
I concur in the result only to reverse the decision of the trial court relating to wool, sale proceeds and security priority rights in sheep branded X7 and respectfully dissent from any decision to otherwise affirm the directed verdict.[1]
*654 This court, as did the trial court, achieves an evidentiary conclusion based on conflicting evidence to justify a directed verdict as adverse to the borrower to favor the lender. At issue was the contention of an ongoing agreement for the lender to provide operational capital to the borrowers. As is epidemic in general lending but more tragically in agriculture, the precipitous denial of capital by the lender, and particularly so at a time after a destructive storm resulting in heavy livestock loss, presaged inevitably the foreclosure and probable bankruptcy of the agriculturalist.
To the extent of denied jury resolution on issues of fact clearly to be discerned in the record presented as within broad parameters clearly defined of a lender's cultivated expediency of asserted and anticipated funding, I dissent from the approval of the moralistic and legal default by the lender. Differing from the premier decision on lender liability, State Nat. Bank of El Paso v. Farah Mfg. Co., Inc., Tex. App., 678 S.W.2d 661 (1984), this court substitutes its conclusions within factual disputes "for those of the jury."
"It is not within the province of the court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness' testimony. [Citations omitted.] Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. [Citations omitted.]" Id. at 669.
My review of the entire record would provide a conviction that a jury case was first pleaded and then proven in trial evidence. The court now ignores a singular volume of developing cases of lender defaults of oral agreements and course of business arrangements. This is done by applying a strained interpretation to protect the defaulting lender who demands the impossible and feigns surprise when it does not occur. A more realistic and commercially reasonable application of banking principles and mutual responsibilities between borrower and lender is found in Sahadi v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 706 F.2d 193, 196 (7th Cir.1983), where summary judgment in favor of the lender was reversed when the federal appellate court recognized:
"The limitations upon the use of summary judgment are stringent, and we may not affirm the district court's order unless the record reveals the absence of any genuine issue of material fact. Fed. R.Civ.P. 56(c). We cannot agree with the district court that under Illinois law, expressly made applicable in the agreements here, this record presents no issues of material fact requiring a full trial. While outstanding issues of material fact may well exist also in relation to the Sahadis' waiver and breach of `good faith' claims, we need not reach those questions here and so confine our analysis for the purposes of this appeal to the issues of `material' breach."
With that court further continuing:
"The need for a complete factual inquiry into the underlying circumstances and *655 commercial custom is especially acute where, as here, the purportedly breaching party claims that time was not of the essence of the contract. * * *
* * * * * *
"Although we need not reach the question of whether summary judgment may properly be applied to plaintiffs' assertion of waiver and `good faith,' we hold that such a procedure was an inappropriate short-cut in resolving the necessarily fact-bound, complex question of `material' breach." Id. at 197, 200.
Current violated loan commitment cases with claimed factual issues and jury or bench trial resolution include Federal Land Bank of Omaha v. Gibbs, 809 F.2d 493 (8th Cir.1987) (remanded to state court for loan commitment, factual conflict resolution); Betterton v. First Interstate Bank of Arizona, 800 F.2d 732 (8th Cir.1986) (UCC duty of good faith as a contractual remedy); K.M.C. Co., Inc. v. Irving Trust Company, 757 F.2d 752, 759 (6th Cir.1985) (good faith is implied in every contract and this includes a financing agreement; questions of fact should be resolved by jury decision); Native Alaskan Reclamation and Pest Control, Inc. v. United Bank of Alaska, Alaska, 685 P.2d 1211 (1984); Alaska Statebank v. Fairco, Alaska, 674 P.2d 288 (1983) (course of dealing between the parties, altered rights established under pre-existing agreements); Clinton Federal Sav. & Loan Ass'n v. Iowa-Des Moines Nat. Bank, Iowa App., 391 N.W.2d 712, 719 (1986) (conflict factually between lead and participant lenders on an over-lined loan dispute where testimony regarding the practice in the banking community generally and of the lead lender specifically is relevant and material); Consolidated Am. Life Ins. Co. v. Covington, Miss., 297 So. 2d 894, 896 (1974) (the trial court was not in error in failing to direct a verdict in favor of the lender); Shaughnessy v. Mark Twain State Bank, Mo. App., 715 S.W.2d 944 (1986); Yankton Production Credit Ass'n v. Larsen, 219 Neb. 610, 365 N.W.2d 430, 434 (1985) (genuine issues of material fact as to whether the PCA acted in good faith when it refused to loan the amount of the budgeted loan); and Pecos Const. Co. v. Mortgage Inv. Co. of El Paso, 80 N.M. 680, 459 P.2d 842 (1969) (business compulsion as economic duress is actionable). See likewise Bank of Fairbanks v. Kaye, 16 Alaska 23, 227 F.2d 566 (9th Cir.1955) (the bank should not accept a new arrangement if not intending to comply with its basic promise as novation by further assurance from third-party payment promise which abrogates any denied right to immediate foreclosure); Stirling v. Chemical Bank, 382 F. Supp. 1146, 1153 (S.D.N.Y. 1974), aff'd 516 F.2d 1396 (2nd Cir.1975) (common law fraud from false representations that outstanding loans would not be called and further loans would be made); First Nat. Bank in Libby v. Twombly, Mont., 689 P.2d 1226 (1984) (jury issue of breach of statutory obligations to act in good faith); and Nevada Nat. Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978) (course of conduct between parties as jury issue to impose duty on lender). Compare Northwestern Nat. Bank of Great Falls v. Weaver-Maxwell, Inc., Mont., 729 P.2d 1258, 1262 (1986) (where on reversal of jury verdict, appellate court said that the trial court did not leave fact finding to the jury, as it should leave the factual determinations of the nature of the agreement to the jury). Also to be compared is Rigby Corp. v. Boatmen's Bank and Trust Co., Mo. App., 713 S.W.2d 517, 527 (1986) (in discussion of good faith from reasonable commercial standards of the trade involved to characterization as honesty in fact). See Ebke and Griffin, Lender Liability to Debtors: Toward a Conceptual Framework, 40 Sw. L.J. 775 (1986) as an article that provides a comprehensive and thoughtful review.
Timothy P. Reardon, in current law journal analysis, Comment, Wisconsin Lenders Beware: Borrowers are Striking Back With Lender Liability, 71 Marq.L.Rev. 376 (1988), analyzes as common law theories of lender liability of fraudulent misrepresentation, duress and tortious enterprise as found from State Nat. Bank of El Paso v. Farah Mfg. Co., Inc., supra, 678 S.W.2d 661 and the more directly implemented requirement of good faith and fair dealing as including refusal to advance funds and acceleration *656 of maturity. Applicability to the relationship of these present litigants is self-evident in pleading and evidence.
This court now creates a mechanism, which the Wyoming legislature has refused to provide, that will invalidate substantive contracts to provide credit effectuated by oral agreement when justified and memorialized through a course of business relationships. Additionally, the court ignores the UCC covenant of good faith which is encompassed within § 34-21-122, W.S. 1977; § 34-21-120(a)(xix), W.S. 1977; and § 34-21-127, W.S. 1977. See K.M.C. Co., Inc. v. Irving Trust Company, supra (which may be considered as a premier case in persuasive authority); Rigby Corp. v. Boatmen's Bank and Trust Co., supra; First Nat. Bank in Libby v. Twombly, supra; Yankton Production Credit Ass'n v. Larsen, supra; and Summers, The General Duty of Good Faith Its Recognition and Conceptionalization, 67 Cornell L.Rev. 810 (1982).
In approval of the directed verdict against the agriculturalist as borrower, the court accepts the posture that what really happened is unimportant unless specifically refined in explicit written agreement, as a matter of law, in avoidance of a factual issue resolution by the constitutional fact finding jury. Consequently, the court converts what was in reality an issue of fact review (Stage 6 of Cordova v. Gosar, Wyo., 719 P.2d 625 (1986)) into a decision as a matter of law without regard for the materiality of conflicting evidence. Shauers v. Board of County Com'rs of Sweetwater County, Wyo., 746 P.2d 444 (1987); Intermountain Brick Co. v. Valley Bank, Wyo., 746 P.2d 427 (1987); Atlas Const. Co. v. Slater, Wyo., 746 P.2d 352 (1987); Yene v. Stassinos, Wyo., 730 P.2d 791 (1986).
In amended answer and counterclaim of 24 pages with 38 paragraphs for answer and 22 for counterclaim, appellants, as borrowers, allege theories of recovery or defense which included: (1) breach of agreement of lender when borrowers obtained a separate loan for application on the debt with concurrent agreement that of the repaid $219,000, that $100,000 would be available for restocking and livestock purchases; (2) agreement and line of credit as operational relationship between the parties predating the annual renewal periods of the promissory debt instruments in total of two million dollars, of which only $1,045,000 was advanced with concurrent breach by lender of this line of credit agreement when additional advances from the fund would not be provided; (3) course of business, custom and procedure between the parties for operational financing, which had existed since the early 1960's, was breached by lender in demanded payment and consequent foreclosure; (4) harassment of a separate lender, First Interstate Bank of Buffalo, with intent to "interfere with and damage the [appellants'] banking relationship" with the other lender; (5) although completely secured, lender instituted foreclosure which was "not reasonable, but is capricious, irresponsible, tortious, malicious, and an intentional effort to injure and damage these Defendants;" (6) denied credit resources which should have been available for "young and beginning ranchers" pursuant to 12 C.F.R. § 614.4165 (1-1-85 edition); (7) denied cooperation with the Wyoming State Farm Loan Board as consequently vetoing acquisition of an emergency replacement lost livestock loan which would have provided operational capital and livestock; and (8) denied cooperation with the Farmers Home Administration and Small Business Administration by rejection of a nondisturbance agreement as vetoing funding which "could have discharged all of the debt of the Wyoming Production Credit Association."
Any realistic appraisal of this 12 volume, exhaustively exhibited record reveals little doubt that the lender denials, rejections and vetoes deliberately and intentionally occurred. The issue presented came with a defensive concept to the contract and tort phase of the lender's legal justification. Since clear factual issues were comprehensively developed within the extended record, this court now supports the directed verdict and supplies that justification by the parol evidence rule. That application is totally misplaced in the contours of alleged lending breaches encompassing tortious and contract violations. These cases are of a nature where the facts and events are *657 normally derived from a course of business, oral agreements and understanding between parties who have long been associated in a history of financing. See discussion of justification, Annotation, Prima Facie Tort, 16 A.L.R. 3d 1191 (1967).
The permissive "may," as ascribed high weight by majority opinion, is in my concept and currently developing lender liability precedent subject to definition by the actual understanding between the parties which was clearly conflicting in factual presentation in trial evidence before the directed verdict was granted. The subject of the combination of disparity of information and misplaced trust as considered in Commercial Nat. Bank of Peoria v. Federal Deposit Ins. Corp., 131 Ill. App. 3d 977, 87 Ill. Dec. 107, 476 N.E.2d 809 (1985), is equally involved here. I would also find a jury issue of justified reliance under the circumstance. Sanchez-Corea v. Bank of America, 38 Cal. 3d 892, 215 Cal. Rptr. 679, 701 P.2d 826 (1985).
In this snow blizzard effectuated case by loss of sheep in the spring storm of 1984, failure of credit for replacement was axiomatic in successive loan default and mortgage foreclosure. My principal objection to the court's decision is it confines the course of business status of the business relationship, which occurred over years, to the particularized terms of the annualized loan security documents. Those documents were the result of the transactional arrangement of the parties and were not intended to create the ongoing long-term understanding between the parties. Obviously, if the borrower had known that Wyoming Production Credit Association would jump ship with availability of capital in the event of a weather disaster, then many years earlier the borrower would have found an alternative source of financing in order to minimize the constancy of danger from a "pulled plug." The lending agreement between these parties was derived from understanding in express statements arising through the years of mutual business association as lender and borrower. Denial of a jury trial analysis is terribly unjustified. With the facts in dispute, "the language used and the meaning to be given it, were questions of fact for the jury." Coston v. Adams, 203 Okl. 605, 224 P.2d 955, 961 (1950).
The evidentiary conflict and basic factual disagreement on the central concern of mutual understanding for a line of credit is only sidestepped by ignoring substantive oral evidence and valid inferences to be derived from the nature of the conduct of the enterprise. In substitute, the court wrongly applies the limiting stricture of parol evidence applied to a part of the evidence which clearly, from this record, does not include the entirety of the understanding and the basic facts of the business transaction.
The obdurate and unexpected rejection of continued financing responsibility by the Wyoming Production Credit Association was exasperated as shown by the record in failure to even cooperate with the borrower so that substitute credit might be acquired. This lender was not to be a port in any storm but rather an abyss when turbulence was encountered.[2]
In conclusion of their law journal article, Ebke and Griffin surmised:
"The great lesson, we think, that can be drawn from the growing body of case law of lender liability is a modern version *658 of the ancient Greek ideal [as] (balance), balance between a lender's interest in assuring repayment and the debtor's interest in freedom from undue interference by the creditor. Where to draw the line, of course, cannot be stated in terms of an abstract rule or principle." Ebke and Griffin, supra, at 816.
Clearly here, however, the trial court and now this court draws the line without currently available precedential justification and with complete unfairness in theory or conflicting fact to the damaged and devastated borrower.
Consequently, I dissent and would reverse the judgment of foreclosure and the directed verdict on appellants' claims and remand the case for the requested jury trial.
NOTES
[*] Case assigned 1-15-88; opinion circulated for comment 4-12-88.
[1] Wyoming Production Credit Association was the original plaintiff in this action. The record indicates that, after commencement of this action, Wyoming Production Credit Association transferred all its assets to Production Credit. The first amended complaint, therefore, designated as plaintiff Production Credit, formerly Wyoming Production Credit Association.
Thereafter, Farm Credit purchased a participating interest in the loans and security involved in this case except for the $49,000 promissory note and security agreement executed by James W. Lawrence and Pat E. Lawrence. Thus, Farm Credit was added as a party plaintiff in the second amended complaint.
[2] This mortgage was later used as security for the $950,000 promissory note.
[3] The trial court determined that the proceeds from the sale of the wool and the sheep branded X7 were to be applied to the debt of Charles K. Lawrence and Dorothy D. Lawrence. Although James W. Lawrence had an ownership interest in the X7 brand, there was no evidence elicited at trial indicating that either James W. Lawrence or Pat E. Lawrence was involved in the purchase or ownership of these sheep; thus, the security agreement executed by James W. Lawrence and Pat E. Lawrence on their smaller promissory note could not reach these sheep.
[4] The Lawrences cite Landen, referenced earlier in the body of this opinion, in support of their argument that the descriptions in the after-acquired collateral clauses are insufficient to reach the sheep branded X7. The holding in Landen is distinguishable from the instant case. In that case, the security agreement specifically described certain cattle, and the after-acquired property provision was identical to the one in the instant case. We held, in Landen, that the security agreement did not cover horses which were subsequently purchased. Critical to that decision was the fact that the after-acquired livestock was of an entirely different species rather than an increase or addition to the specifically described livestock.
[5] Charles K. Lawrence also testified that the cattle purchased with the Small Business Administration loan funds were branded with a brand owned by his daughter, a brand which also was not listed on the Production Credit security agreement.
[6] We do not discuss the propriety of the trial court's directed verdict dismissing the counterclaims of Charles F. Lawrence, John D. Lawrence, or Linda Lawrence Love because they failed to appeal such issue.
[1] By dissent circulated June 20, 1987, I would have concurred with the original opinion on the subject of priority claims to the sheep and proceeds. Since that time, a special concurrence was circulated, after which the opinion was modified to accommodate the thesis of the author of that special concurrence as now withdrawn.
To avoid a delayed publication of the opinion, I would qualify any conclusion in concern that a simplistic determination of appellees' rights by ownership at purchase may be over-inclusive within the exhaustive precedent for after-acquired assets through a dragnet clause application. In this case it is, for example, recognized in fact that the funds for the purchase came from other lenders to acquire the asset against which appellees attempt to attach a priority security claim. The priority provisions of § 34-21-941, W.S. 1977 could be implicated depending on specific circumstances, documentation and events. Other avoiding characteristics included within the generic subject may or may not result from a confined attention to the specific circumstances as may be found in jury verdict.
In order to avoid a delayed publication date, this concurrence is restricted on the issue to the results only and in no way implies a predisposition applicable to legal rules that may be applied upon trial, and specifically, whether the rights to the security are solely determinable by one time bland ownership concepts. The dragnet-anaconda security interest characteristics are complex indeed, as witnessed by First National Bank, Cortez v. First Interstate Bank, Riverton, Wyo., 758 P.2d 1026 (1988), for which rehearing was granted so that the case will be again orally argued. Even with the UCC statutory approval, contested claims to after-acquired property security interest can be found in many scores of hotly contested litigative controversies presenting defenses on at least a half a dozen different bases. Whether any or none apply here, cannot be presently determined on the record and briefing which has resulted from the prior directed verdict now presented in this appeal.
[2] Appellants, in counterclaim, rather clearly pleaded a tort claim cause of action within the emergency perspective of the prima facie tort. Annotation, Prima Facie Tort, 16 A.L.R. 3d 1191, supra as a "rather narrowly restricted specific remedy, involving otherwise lawful conduct not giving rise to an action for some other tort, maliciously intended to harm the complainant and causing `special' damage, without justification." Breach of the UCC covenant of good faith and execution of the prima facie tort are reciprocal remedies. One in contract and the other in tort that rationally result from the same character conduct. Compare First Nat. Bank in Libby v. Twombly, supra, 689 P.2d 1226 with Betterton v. First Interstate Bank of Arizona, supra, 800 F.2d 732 and Rigby Corp. v. Boatmen's Bank and Trust Co., supra, 713 S.W.2d 517. Ebke and Griffin, supra, at 799:
"Under the prima facie tort theory a lawful act unjustifiably performed with an intent to harm another is unlawful and makes the actor liable for damages. A cause of action under the prima facie tort theory may not be brought, however, if the conduct is actionable under an existing, well-defined cause of action. The prima facie tort theory is functionally and theoretically distinguishable from the actionable implied duty of good faith and fair dealing in that it sounds in tort while the duty of good faith and fair dealing sounds in contract and tort. The theories are, however, indistinguishable in application. Both theories require the fact finder to assess the mental state of the actor in the absence of clearly defined standards of unacceptable conduct. The prima facie tort theory, as well as the duty of good faith and fair dealing, is merely `a philosophical effort to state all tort law in a single sentence rather than an effort to state a meaningful principle.'". [Footnotes omitted.]
See comparable tort of unreasonable collection efforts with resulting jury verdict damage award, Bank of North America v. Bell, Tex.Civ. App., 493 S.W.2d 633 (1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366506/ | 617 S.E.2d 653 (2005)
274 Ga. App. 504
CRAIG
v.
The STATE.
No. A05A1282.
Court of Appeals of Georgia.
July 15, 2005.
Mary F. McCord, Kelley A. Dial, Cartersville, for appellant.
T. Joseph Campbell, Dist. Atty., Erik J. Pirozzi, Asst. Dist. Atty., for appellee.
PHIPPS, Judge.
Vaughn Craig was tried before a jury and convicted of driving under the influence of methamphetamine, failure to properly display his tag, trafficking in methamphetamine, possession of methamphetamine by ingestion, and possession of marijuana by ingestion. He appeals his conviction of trafficking in methamphetamine, challenging the sufficiency of the evidence to support the verdict and the legality of the search that resulted in the seizure of the drug. Finding the evidence sufficient and the legality of the search waived, we affirm.
Bartow County Deputy Sheriff Mark Mayton was on patrol on the evening of January 8, 2003, when he observed an obstructed tag on a truck being operated by Craig. Upon following the truck, Mayton saw it weave outside its lane of travel several times. Suspecting that the driver of the truck might be impaired, Mayton effected a traffic stop. His suspicions were further aroused because Craig was sweating profusely on a cool winter night, his pupils were constricted, and he kept pacing back and forth unable to follow the officer's instructions. Mayton thereupon asked Craig for permission to search the truck. Craig refused.
Pursuant to standard procedure, Mayton radioed for a canine officer to come to the scene. While Mayton was writing citations for Craig's traffic offenses, Bartow County Deputy Sheriff Billy Lancaster appeared with his search dog. During a walk around Craig's truck, the dog alerted on the driver's door. During an interior search of the driver's compartment, Lancaster found a small amount of methamphetamine inside a cigarette box and a much larger amount of methamphetamine inside a baggy wedged behind the driver's seat of the truck. The total weight of the methamphetamine was 59.49 grams. Craig was then arrested. After his arrest, he provided a urine sample. The GBI crime lab's analysis of the urine sample showed that Craig had ingested both marijuana and methamphetamine.
*654 At trial, Craig admitted that he was a methamphetamine user, but claimed that he had not been in knowing possession of the methamphetamine in the baggy in his truck.
1. Craig challenges the sufficiency of the evidence because there was no evidence of drug sales. We find no merit in this challenge. Under OCGA § 16-13-31(e), "[a]ny person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine...."[1] Therefore, the crime of trafficking in methamphetamine may be committed by mere possession of a trafficking amount.[2]
Craig also argues that the evidence showed nothing more than his mere presence at the scene of a crime. This argument is patently without merit.
Under Georgia law, the driver and owner of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile, but this presumption is rebuttable by evidence of equal access.[3]
Whether evidence of equal access by others overcomes the presumption depends, of course, on the strength of the evidence,[4] and is a question for the jury.[5] Here, Craig was the sole occupant and admitted owner of the truck, the methamphetamine was found hidden near where he was sitting, the urine test showed that he had recently ingested methamphetamine, and he provided no evidence of equal access by others. The evidence presented in this case fully authorized the jury to find Craig guilty beyond a reasonable doubt of possession of more than 28 grams of methamphetamine and, therefore, of trafficking in methamphetamine.
2. Craig also challenges the legality of the search of his truck. Because he did not, however, raise this issue at trial, his challenge is too late.[6]
Judgment affirmed.
ANDREWS, P.J., and MIKELL, J., concur.
NOTES
[1] (Emphases supplied.)
[2] See Dalton v. State, 261 Ga.App. 72, 581 S.E.2d 700 (2003).
[3] Johnson v. State, 268 Ga.App. 808, 809, 602 S.E.2d 840 (2004) (punctuation and footnote omitted).
[4] Id. at 809-810, 602 S.E.2d 840.
[5] Id. at 810, n. 5, 602 S.E.2d 840.
[6] Davis v. State, 255 Ga. 588, 590(1)(a), 340 S.E.2d 862 (1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366559/ | 74 Wn. App. 1 (1994)
871 P.2d 1095
VALENE STOCKER, Respondent,
v.
LOREN MARVIN STOCKER, ET AL, Appellants.
No. 12773-7-III.
The Court of Appeals of Washington, Division Three.
April 28, 1994.
Robert J. Doty, for appellants.
Jay A. Johnson and Davis Arneil Law Firm, for respondent.
SWEENEY, A.C.J.
In 1965, Loren Marvin Stocker (Marvin) executed a statutory warranty deed to his father, Loren C. Stocker (Loren), transferring Marvin's property to Loren for $10, subject to an underlying mortgage. Loren agreed to return the property to Marvin after a tour of military service. Marvin did not ask for the property when he returned. His parents continued to live on the land, planting an orchard, making other permanent improvements, and eventually paying off the mortgage.
In 1990, Marvin's mother, Valene Stocker, wanted to sell the orchard; Loren insisted it belonged to Marvin. Over Valene's objection, Loren quitclaimed the property to Marvin in 1990. Valene brought this action to quiet title in the land, for ejectment, for an equitable lien and to avoid a personal property transfer. The court quieted title in Valene and Loren and ejected Marvin.
On appeal, Marvin contends the 1965 statutory warranty deed created an express trust, any interest Valene and Loren had in the property was subject to the trust, and the *3 trust was fully performed by the 1990 quitclaim deed back to Marvin. We affirm.
I
FACTS
The following facts are undisputed. In 1958 or 1959, Marvin received a parcel of land in Chelan County as a gift from his great-grandmother. At that time, the property was unimproved sagebrush. Between 1958 and 1965, Marvin and his wife, Betty, made improvements to the land and in the process executed a mortgage for $2,600 in favor of Seattle First National Bank to finance some of the improvements.
Finding himself unable to pay the mortgage and other outstanding debts, and anticipating 2 years of military service, Marvin executed a statutory warranty deed in January 1965 to Loren. Betty cosigned the conveyance. Marvin and Betty dissolved their marriage in April 1965 and Betty was awarded a lien of $5,000 on the property. The deed conveyed the property for $10, subject to the Seattle First mortgage, which Loren agreed to assume. The assessed value of the land and improvements was $3,360. Loren informed Valene of the deed a short time later. He told her he was holding the property for Marvin and would deed it back after Marvin returned from the military.
While serving in the Army, Marvin married Virginia. After Marvin's tour of duty in the military, they moved in with Loren and Valene for a short time, but then moved to a rental owned by Marvin's sister. For the next 23 years, Marvin never requested return of the property.
During that same period, Loren and Valene made substantial improvements to the property by planting an orchard, building a residence with a septic system, drilling a well, and installing a permanent irrigation system. They also paid off the mortgage, satisfied the lien owed to Marvin's ex-wife Betty, borrowed money secured with a mortgage, received compensation following a condemnation action on a portion of the land, and granted a road easement over the property. They also paid all property taxes and *4 retained all crop proceeds associated with the orchard until 1990, occasionally paying Marvin wages for his help during harvesting. In May 1973 Loren and Valene executed a community property agreement which provided that all property owned by either, whether community or separate, was to be considered community property.
Marvin and Virginia dissolved their marriage in 1979. In response to interrogatories propounded during the dissolution proceedings, Marvin made no reference to the property deeded to Loren. Sometime before 1992, Marvin married his third wife, Dawn.
In 1989, Valene told her husband she was tired of running the orchard and wanted to sell it. Loren refused to sell, insisting the property belonged to Marvin. In September 1990, Loren quitclaimed the property to Marvin over Valene's objections, reserving a life estate in the residence for him and Valene. The quitclaim deed contained the following language:
This deed is executed to return to Grantee the title which he held prior to deeding it to Grantor. Title was passed by deed January 14, 1965, and recorded ... to Grantor herein to hold for Grantee while Grantee was in the Military Service of the United States, with the express agreement that title would be returned to Grantee on his request.
In December 1990, Loren had $8,368.27 of the 1990 crop proceeds transferred to Marvin over Valene's objections.
On February 26, 1991, Valene filed an action for quiet title, ejectment, equitable lien and to avoid a personal property transfer. Later that year, Marvin sold a portion of his cattle operation for $40,000 to finance the 1991 crop to be grown on the property. At some point, Valene moved off the land to live with her daughter and instituted an action for legal separation from Loren. Loren and Marvin continued to live and work on the property until Loren's death some time after the trial of this action.
Following trial the court quieted title in Valene and Loren, voided the 1990 quitclaim deed from Loren to Marvin, ejected Marvin and Dawn from the property, and voided *5 the transfer of the 1990 crop proceeds to Marvin.[1] After Marvin's motion to reconsider was denied, this appeal followed.
II
DISCUSSION
[1] A. Express Trust. Marvin first contends that an express trust was created in 1965 when he deeded the property to Loren. He apparently concedes the well settled law in this state that an express trust in real property must be in writing and cannot be proved by parol evidence. RCW 19.36.010; RCW 64.04.010, .020; Silhavy v. Doane, 50 Wn.2d 110, 114, 309 P.2d 1047 (1957); Dowgialla v. Knevage, 48 Wn.2d 326, 335, 294 P.2d 393 (1956); Moe v. Brumfield, 27 Wn.2d 714, 721, 179 P.2d 968 (1947); Diel v. Beekman, 7 Wn. App. 139, 143, 499 P.2d 37, review denied, 81 Wn.2d 1007 (1972). He argues nonetheless that the statute of frauds either is inapplicable or has been fully satisfied because: (1) Valene as a third party to the trust agreement had no standing to raise the statute of frauds defense, Lamereaux v. Pague, 9 Wn. App. 640, 513 P.2d 1053 (1973); (2) the agreement was fully performed when the property was conveyed by Loren back to Marvin; (3) there is a sufficient memorandum to satisfy the statute of frauds (the deed from Loren to Marvin), Knight v. American Nat'l Bank, 52 Wn. App. 1, 4, 756 P.2d 757, review denied, 111 Wn.2d 1027 (1988); and finally (4) the statute of frauds was fully satisfied by admissions of the parties of the existence of the trust in open court, Powers v. Hastings, 20 Wn. App. 837, 842, 582 P.2d 897 (1978), aff'd, 93 Wn.2d 709, 612 P.2d 371 (1980).
Marvin's argument ignores the sequence of events in this case. He argues first that Loren's conveyance to Valene in 1973 by the community property agreement was ineffective because the property was held by Loren in trust for Marvin. Leslie v. Midgate Ctr., Inc., 72 Wn.2d 977, 981, 436 P.2d 201 (1967); O'Steen v. Estate of Wineberg, 30 Wn. App. 923, 932-33, 640 P.2d 28, review denied, 97 Wn.2d 1016 (1982). But *6 the events which satisfied the requirements of the statute of frauds full performance, a sufficient memorandum contained in the deed from Loren to Marvin, and admissions in open court all occurred well after the community property agreement.
[2] The conveyance by Marvin to Loren in 1965 did not create an express trust. Loren therefore was not a trustee of this property for the benefit of Marvin when he executed the 1973 community property agreement conveying his interest in the property to Valene. At that point, the property became the community property of Loren and Valene.[2] The purported conveyance by Loren to Marvin in 1990 without Valene's signature was therefore void. RCW 26.16.030(3).
[3, 4] B. Resulting and Constructive Trust. Marvin alternatively contends the 1965 property transfer created a resulting or constructive trust. Both forms of trust are equitable in nature. They arise by implication of law and may be established by parol evidence of a clear, cogent and convincing nature. Thor v. McDearmid, 63 Wn. App. 193, 206, 817 P.2d 1380 (1991); Yates v. Taylor, 58 Wn. App. 187, 190-92, 791 P.2d 924, review denied, 115 Wn.2d 1017 (1990).[3]
A resulting trust arises when property is taken in the name of a grantee other than the person advancing the purchase money. Thor, at 206. "[T]hat grantee is presumed to hold legal title subject to the equitable ownership of the person advancing the consideration." Thor, at 206. Loren took legal title in the 1965 statutory warranty deed but also paid consideration, including cash and the assumption of Marvin's obligation against the property. Marvin presents no evidence compelling examination of the statutory warranty deed as a resulting trust.
*7 A constructive trust is imposed in equity when property is acquired under such circumstances that the legal titleholder would be unjustly enriched if allowed to retain it. Baker v. Leonard, 120 Wn.2d 538, 547-48, 843 P.2d 1050 (1993); Scymanski v. Dufault, 80 Wn.2d 77, 89, 491 P.2d 1050 (1971). Loren acquired legal title to the land in exchange for his promise to pay the underlying mortgage. Loren and Valene not only fulfilled these obligations, but also financed major improvements on the land and invested in yearly crop production. His retention of the legal title acquired by statutory warranty deed does not constitute unjust enrichment justifying the imposition of a constructive trust.
III
CONCLUSION
We affirm the judgment quieting title in Valene and Loren and voiding the quitclaim deed and the transfer of crop proceeds to Marvin.
MUNSON and SCHULTHEIS, JJ., concur.
Review denied at 125 Wn.2d 1001 (1994).
NOTES
[1] The equitable lien claim had been dismissed on Valene's motion at trial.
[2] A written agreement converting all property of either spouse to community property is adequate even though the real estate in question is not specifically described. In re Estate of Verbeek, 2 Wn. App. 144, 157, 467 P.2d 178 (1970).
[3] In Yates we held that an alternative standard of proof for proving a constructive trust is a preponderance of the evidence when the theory underlying recovery is a contract implied at law to impose personal liability. Yates, at 191-92. There is neither performance of an implied duty nor unjust enrichment in these facts to support enforcing an implied quasi-contract. Yates, at 192. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1765509/ | 528 F.Supp.2d 834 (2007)
WACHOVIA SECURITIES, LLC, Plaintiff,
v.
David NEUHAUSER, Andrew A. Jahelka, Richard O. Nichols, Leon A. Greenblatt IIII, Banco Panamericano, Inc., Loop Corp., Loop Properties, Inc., and Scattered Corp., Defendants.
No. 04 C 3082.
United States District Court, N.D. Illinois, Eastern Division.
November 29, 2007.
*835 *836 *837 *838 Steven Pascal Gomberg, Adam Brent Rome, Beau T. Greiman, Christopher Scott Griesmeyer, Gary Irwin Blackman, Levenfeld Pearlstein, LLC, Chicago, IL, for Plaintiff.
James Worlton Naisbitt, James W. Naisbitt, Ltd., C. Philip Curley, Robinson, Curley & Clayton, P.C., Chicago, IL, for Defendants.
Gerald C. Willis, Jr., Paul W. McAndrews, McAndrews, Held & Malloy, P.C., Chicago, IL, for Defendant Loop Corp. A South Dakota Corporation.
Alan R. Dolinko, John Henry Wickert, Robinson, Curley & Clayton, P.C., Chicago, IL, for Defendants Scattered Corp. A South Dakota Corporation, Banco Panamericano, Inc.
Gregory James Jordan, Peter James Schmidt, Polsinelli Shalton Flanigan Suelthaus PC, Chicago, IL, for Respondents.
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Plaintiff, Wachovia Securities, LLC ("Wachovia") brings a ten-count Revised *839 Second Amended Complaint against Defendants, David Neuhauser ("Neuhauser"), Andrew A. Jahelka ("Jahelka"), Richard O. Nichols ("Nichols"), Leon A Greenblatt, III ("Greenblatt") (collectively "the Individual Defendants"), Banco Panamericano ("Banco"), Loop Corp. ("Loop"), Loop Properties, Inc. ("Loop Properties"), and Scattered Corp. ("Scattered") (collectively "the Defendants") seeking damages for common law fraud, breach of contract and all remedies available under' the Illinois Uniform Fraudulent Transfer Act ("UFTA"). Wachovia also seeks a declaratory judgment that Neuhauser, Jahelka, Nichols, and Greenblatt (the "Individual Defendants") are jointly and severally liable for the obligations of their alter egos, Loop and NOLA, LLC ("NOLA").
Wachovia moves for Partial Summary Judgment against Neuhauser and Greenblatt. Neuhauser and Greenblatt moves to strike several paragraphs and two exhibits associated with Wachovia's Motion for Partial Summary Judgment. Banco, Loop, Loop Properties, and Scattered (the "Corporate Defendants") and the Individual Defendants move for summary judgment against Wachovia on all counts of the Revised Second Amended Complaint.
For the reasons stated herein, Defendants' Motion to Strike Paragraphs 31-36 and 39-43 and Exhibits 9 and 12 of Wachovia's Amended Statement of Material Facts is granted. Plaintiffs Motion for Partial Summary Judgment is denied. The Individual Defendants' Motion for Summary Judgment as to Counts I and VI is granted. The Individual Defendants' Motion for Summary Judgment as to Counts II through V is denied as to Loop, Greenblatt, Jahelka, and Nichols, granted as to Loop and Neuhauser, and granted as to NOLA and the Individual Defendants. The Corporate Defendants' Motion for Summary Judgment as to Counts VII through X brought under the Illinois Uniform Fraudulent Transfer Act is denied. Additionally, the Individual Defendants' Motion to Bar Wachovia's New Fraud Claim is granted and the Corporate Defendants' Motion to Bar Alleged Fraudulent Conveyances not in the Complaint is denied.
I. Background
Wachovia is a lending and banking institution and a successor to Prudential Securities Incorporated[1] ("Prudential"). Prudential's customer debits became Wachovia's assets after a July 2003 merger. Pl. 56.1 Resp. ¶ 1.[2] Wachovia is a limited liability company and a voluntary contract creditor. Pl. Resp. Ind. 56.1 ¶ 31, 41. Neuhauser, at Greenblatt's direction, opened two trading accounts at Wachovia using two entities, Loop and NOLA. The Individual Defendants began acquiring HRMI stock through the Loop and NOLA accounts on margin, and in doing so, incurred a substantial margin debt. *840 Subsequently, the NASDAQ halted trading of HRMI stock, the stock plummeted, and the Loop and NOLA margin accounts became due. After the margin call, Wachovia contends that the Individual Defendants looted Loop by transferring its assets to the Individual Defendants, insiders, and, related entities making it impossible for Wachovia to collect on its $2,900,000 margin call. Wachovia contends that Loop and NOLA were shell corporations and that the Individual Defendants are liable for the unpaid margins either directly or as alter egos of the two entities.
II. Statement of Facts
Relationships between the Individual and Corporate Defendants
Greenblatt, Jahelka, and Nichols either own, operate, or have an interest in a web of corporate entities including Loop, Scattered, Banco, and Loop Properties. Loop is a small, closely-held company incorporated on September 12, 1997 and owned by Greenblatt, Jahelka, and Nichols. Neuhauser Resp. 56.1(b) ¶¶ 1, 6. Loop's shareholders are Greenblatt, Jahelka, and Nichols. Neuhauser Resp. 56.1(b) ¶¶ 1-2. Its officers are Greenblatt (Secretary), Jahelka (President), and Nichols (Treasurer). Neuhauser Resp. 56.1(b) ¶ 2; Pl. Resp. Ind. 56.1 ¶ 34. Loop is a "holding company" and until September 2002, it held ownership interests in limited partnerships which in turn, owned various parcels of commercial real estate in Chicago. Neuhauser Resp. 56.1(b) ¶ 8. Loop operates out of the 7th Floor of 330 South Wells, Chicago, Illinois (the "Wells building"). Neuhauser Resp. 56.1(b) ¶ 7. Neuhauser is Loop's "agent." Neuhauser Rep. 56.1(b) ¶ 28.
NOLA is a small, closely-held company that was organized on July 27, 1994. Neuhauser Resp. 56.1(b) ¶ 14. NOLA's "members" are Greenblatt's, Jahelka's, and Nichols's fathers. Pl. Resp. Ind. 56.1 ¶ 27. NOLA's manager is Teletech Systems, Inc. ("Teletech"). Pl. Resp. Ind. 56.1 ¶ 27; Neuhauser Resp. 56.1(b) ¶ 17. Teletech operates out of the Wells building. Neuhauser Resp. 56.1(b) ¶ 17. Teletech had the authority to manage NOLA's assets limited only by the provisions of the Limited Liability Company Act. Neuhauser Resp. 56.1(b) ¶ 16. Greenblatt was Teletech's sole officer and employee, and therefore, made day-to-day decisions on NOLA's behalf including whether NOLA would enter into trades. Neuhauser Resp. 56.1(b) ¶ 16, 18. Greenblatt, though never a shareholder of Teletech, acted at times as its Secretary during the relevant time period. Greenblatt became NOLA's registered agent on June 6, 2001. Id.
Scattered is owned by Greenblatt, Jahelka and Nichols and also operates out of the Wells building. Corp. Rep. 56.1 ¶ 26; Ind. Rep. 56.1 ¶ 13. Loop Properties is a wholly-owned subsidiary of Loop. Pl. Resp. Corp. 56.1 ¶ 20. Loop Properties' officers and directors are Greenblatt (Secretary), Jahelka (President), and Nichols (Treasurer). Corp. Rep. 56.1 ¶ 29. Banco is wholly owned by one of Greenblatt's family trusts. Neuhauser Resp. 56.1(b) ¶ 12. Greenblatt is solely responsible for running Banco's day-to-day operations. Corp. Rep. 56.1 ¶ 28. When Loop deals with Banco, it does so through Greenblatt. Id. Banco operates out of the Wells building and its only employee is Greenblatt. Neuhauser Resp. 56.1(b) ¶ 13; Ind. Rep. 56.1 ¶ 23.
Loop held an ownership interest in EZ Links Golf, Inc. ("EZ Links") when EZ Links was established. Corp. Rep. 56.1 ¶ 40. Greenblatt and Jahelka have an interest in EZ Links via their ownership of Loop. Ind. Rep. 56.1 ¶ 27.
*841 Shared Office Space
Loop, Loop Properties, Banco, Scattered, Loop Telecom, Resource Technology Corporation ("RTC"), and EZ Links operate out of the Wells building. Ind. Rep. 56.1 ¶ 13, 18, 20. Greenblatt, Jahelka and Nichols worked out of the Wells building and each had only one phone number. Id. Neuhauser described the 7th Floor of the Wells building as "a little cluster of offices" that are all "basically connected." Ind. Rep. 56.1 ¶ 18. Scattered rented the 7th floor suites from 200 West Partners, LLP. The general partner of 200 West Partners is 200 West Properties, Inc. and the owner of 200 West Properties is Loop. Id. Jahelka signed Scattered's lease. Id. Scattered did not make rental payments from 1999 to 2003. Id. Loop may have also been on the 7th Floor lease, but assuming it was, Loop did not reimburse Scattered for using its space. Id.
Shared Employees and Expenses
Michael May ("May") was Loop's in-house accountant from 1999 through 2002. Corp. Rep. 56.1 ¶ 27. May's office was located in the Wells building. Ind. Rep. 56.1 ¶ 13, 18. May did not keep records of this time when he was employed by Loop. Ind. Rep. 56.1 ¶ 31. Although he was a Loop employee, May prepared Greenblatt's individual tax returns without receiving additional compensation. Ind. Rep. 56.1 ¶ 30. Additionally, May worked with other companies such as RTC, EZ Links, Loop Telecom, and Banco. Ind. Rep. 56.1 ¶ 31. While working for Loop, May received medical benefits from RTC and then through EZ Links. Ind. Rep. 56.1 ¶ 33. The parties dispute whether Greenblatt owned and controlled RTC. Corp. Rep. 56.1 ¶ 49. May did not know what benefits RTC received in exchange for providing employment benefits to Loop's employees. Id.
In 2002, Jahelka, Loop's President, advised May that his employment at Loop was terminated and that he would now be a Loop Properties employee. Ind. Rep. 56.1 ¶ 29. When May changed positions from Loop to Loop Properties, his salary, day-to-day obligations, office, business cards, phone and fax numbers, and office equipment did not change. Ind. Rep. 56.1 ¶ 29. Subsequently, Jahelka told May that he was a Scattered employee. Id.
Elizabeth Sharp ("Sharp") initially served as Loop's in-house counsel. Ind. Rep. 56.1 ¶ 15. Sharp worked in the Wells building. While working for Loop, Sharp performed legal services for other limited partnerships such as 200 West Properties and RTC, and viewed those entities as "clients." Ind. Rep. 56.1 ¶ 15. Sharp does not know if other entities, such as 200 West Properties, reimbursed Loop for her time. Id. Sharp did not record her time while working for Loop and received healthcare benefits from RTC. Id.
In 2002, Sharp changed positions from Loop's in-house counsel to Loop Properties' in-house counsel at Jahelka's request. Ind: Rep. 56.1 ¶ 17. No one replaced Sharp as Loop's in-house counsel. Id. When Sharp moved to Loop Properties, she continued to represent the same clients that she represented while at Loop, did not move offices, did not change her phone number, and did not change her email address. Id. in 2005, Sharp changed positions from Loop Properties' in-house counsel to Scattered's in-house counsel at Jahelka's request. Id. When Sharp moved to Scattered, she continued to represent the same clients that she represented while at Loop, did not move offices, did not change her phone number, and did not change her e-mail address. Id.
While Jahelka served as Loop's President, he worked for a number of different entities in which Loop's owners had an interest. Ind. Rep, 56.1 ¶ 10. Jahelka could not recall a situation where one of *842 the entities under Loop reimbursed Loop for Jahelka's time. Id.
Although Defendants claim it exists, they have not produced an expense sharing agreement Loop had with several related entities. Sharp heard of the existence of an oral fee sharing agreement between various Greenblatt controlled entities, but was unfamiliar with the specifics of the agreement. Ind. Rep. 56.1 ¶ 16. She did not know whether the agreement was followed. Id. There are no records reflecting payments from other related entities to Loop to reimburse Loop for its expenses. Pl. Resp. Ind. 56.1 ¶ 41.
Capitalization, payments, and shareholder's meetings
In 2000, Loop opened a line of credit with Banco which was secured by a blanket lien against all of Loop's assets. Neuhauser Resp. 56.1(b) ¶¶ 9, 11. Over the next several years, Banco loaned Loop $16-$17 million dollars despite the fact that Loop was in default on Banco's loan in 2001 or 2002. Id.; Greenblatt. Dep. Tr. pp. 61-62. Banco has not foreclosed on its loan to Loop even though Loop is in default. Corp. Rep. 56.1 ¶ 33. The parties dispute whether Loop had significant capitalization. Ind. Rep. 56.1 ¶ 34. May believes that as of December 31, 2000, Loop had additional paid-in capital of more than $9.8 million as reflected in Loop's 2000 and 2001 tax returns. Id. Jahelka does not know why Loop's annual reports showed $1,000 paid-in-capital despite Loop's claims that it was capitalized with a $10 million investment. Ind. Rep. 56.1 ¶ 11. The parties dispute whether paid-in-capital reflects the actual capitalization of a corporation. Id.
Jahelka was unable to explain why Loop's shareholders received payments in different amounts at different times. Ind. Rep. 56.1 ¶ 12. Nichols could not explain why the Individual Defendants were compensated for their work one year and not the next and why one shareholder would receive a payment on one day when another would not. For example, Greenblatt paid himself $175,000 in January 2001 and $100,000 in February 2001 but Jahelka received nothing in January and February 2001. Id. Jahelka could not say whether any payments made to the shareholders were based upon any pre-determined salaries. Id. Greenblatt could not recall why Loop paid him $125,000 in April 2000. Ind. Rep. 56.1 ¶ 25.
Jahelka could not recall any formal shareholders meetings for Loop, did not recall seeing meeting minutes, did not know if Loop kept a minute book, and testified that if Loop had corporate resolutions, they were not "in one place." Ind. Rep. 56.1 ¶¶ 14. Jahelka claims that Loop's officers met on a daily basis and believes that their meetings were memorialized "as necessary." Id. Loop's resolutions, if they exist, were not a part of the record. Greenblatt could not recall whether Loop had meetings of its board of directors nor could he recall whether Loop had directors at all. Ind. Rep. 56.1 ¶ 24. Greenblatt testified that minutes of annual shareholders' meetings were recorded and kept, but when Loop's officers met, minutes were not kept. Id.
May did not know if Loop held annual shareholder meetings or if Loop held regular board of directors' meetings. Ind. Rep. 56.1 ¶ 32. May has never seen a minute book and did not know if Loop paid rent for its office space even though he was responsible for recording rental payments. Id.
Neuhauser opens the Loop and NOLA accounts and Loop and NOLA acquire HRMI stock
On May 19, 2000, Greenblatt, Banco, Chiplease, Inc., ("Chiplease"), and Leslie Jabine entered into a Standstill Agreement with HRMI wherein they represented they *843 had no plans or intentions of acquiring additional HRMI shares in excess of 40% of the outstanding shares of the company. Ind. Rep. 56.1 ¶ 7. On August 8, 2000, Greenblatt filed a 13D publicly disclosing ownership of a sufficient percentage of HRMI to constitute a controlling interest. Pl. Resp. Ind. 56.1 ¶ 23.
Two months later, on October 16, 2000, Neuhauser, Loop's agent, opened a securities account at Wachovia under the name of Loop Carp. at Greenblatt's direction. Pl. 56.1 Resp. ¶ 13; Neuhauser Resp. 56.1(b) ¶¶ 28-30. Neuhauser was a day trader and held an individual trading account at Wachovia as well as a business account in the name of his company, Loren Holdings, Inc. Neuhauser Resp. 56.1(b) ¶ 24. Neuhauser's broker at Wachovia, Kris Stelzner ("Stelzer"), described Neuhauser as "a very sophisticated trader' who was knowledgeable about equities, bonds, [and] commodities." Neuhauser Resp. 56.1(b) ¶ 25. Neuhauser would never have opened the Loop account without authorization from Greenblatt. Ind. Rep. 56.1 ¶ 19. Wachovia knew that Loop was a corporation when it entered into a commercial relationship with Loop. Pl. Resp. Ind. 56.1 ¶ 40.
When Neuhauser opened the Loop account, Wachovia prepared a client intake form. The form has questions regarding a prospective client's investment experience and financial status. Neuhauser Resp. 56.1(b) ¶ 31. Loop's account intake form states that Loop has at least 10 years of investment experience in equities, bonds, options, futures, and mutual funds, net earnings of between $10,000,000 and $24,999,999, a net worth between $10,000,000 and $24,999,999, and a liquid net worth between $10,000,000 and $24,999,999. Neuhauser Resp. 56.1(b) ¶ 36. Although Wachovia claims that the information handwritten on the client intake forms is typically provided by the customer and recorded by a Wachovia representative, the parties dispute whether Neuhauser provided the information on the Loop intake form and dispute whether the information was accurate. Neuhauser Rep. 56.1(b) ¶ 24; Neuhauser Resp. 56.1(b) ¶ 34. The parties agree that Wachovia relies on the accuracy of information provided by customers when accounts are opened, but dispute whether Wachovia actually relied upon the information on the Loop intake form when it decided to open the account. Neuhauser Resp. 56.1(b) ¶ 32, 43.
When Neuhauser opened the Loop account, Neuhauser entered into margin agreement (the "Loop Margin Agreement") on Loop's behalf wherein Neuhauser expressly represented that he, as well as Loop and its principals, would conduct trading in the account "in accordance with all applicable law or requirements as well as the rules and practices of any market or clearing house through which my trades may be executed or processed." Ind. Rep. 56.1 ¶ 5. On October 27, 2000, Greenblatt filed a 13D publicly disclosing a 21.09% ownership interest in HRMI. Pl. Resp. Ind. 56.1 ¶ 23.
On February 28, 2001, Neuhauser opened the NOLA, LLC account at Greenblatt's direction. Pl. Resp. Ind. 56.1 ¶ 13; Neuhauser 56.1(b) ¶ 29-30, 38, 39. NOLA is an Illinois Limited Liability Company. Resp. 56.1 ¶ 13. NOLA was dissolved when Neuhauser opened the account and was not reinstated until May 31, 2001. Pl. Resp. Ind. 56.1 ¶ 27. Although the account was opened under the name NOLA LLC, Neuhauser entered into a Partnership Account Agreement (the "FAA") that states:
"We, the undersigned, request you to open a partnership account in the name of NOLA, LLC, a duly organized partnership, or which each of us is a general *844 partner and of which the undersigned are the sole partners."
Pl. Resp. Ind. 56.1 ¶ 30; Ind. Rep. 56.1 ¶ 27, 38; Group Ex. 17. The parties dispute whether Neuhauser told Wachovia that NOLA was a partnership and that Neuhauser was its general and sole partner. The parties further dispute that by signing the PAA, Neuhauser represented that NOLA was a partnership as opposed to a limited liability company. Ind. Rep. 56.1 ¶ 38.
When Wachovia opened the NOLA account, Wachovia prepared a client intake form similar to Loop's. Neuhauser Rep. 56.1(b) ¶ 40. The form states that NOLA had at least 15 years of experience in equities, bonds, options, futures, and mutual funds, net earnings of between $10,000,000 and $24,999,999, a net worth in excess of $25,000,000, and a liquid net worth in excess of $25,000,000. Neuhauser Resp. 56.1(b) ¶ 42. The parties dispute whether Neuhauser supplied the information on the NOLA client intake form and whether Wachovia relied upon the accuracy of the information in the NOLA intake form when it decided to open the account. Neuhauser 56.1(b) ¶ 29-30, 43.
The parties dispute whether Neuhauser represented to Stelzer that the Individual Defendants had a net worth of more than $50 million and would meet any margin calls which came due. Pl. Resp. Ind. 56.1 ¶ 21. Wachovia did not seek personal guarantees for the Loop or NOLA accounts from the Individual Defendants or anyone else at the time the accounts were opened, nor did it seek guarantees when the margin loans were extended. Pl. Resp. 56.1 ¶ 15.
On March 20, 2001, Greenblatt filed a 13D publicly disclosing a 24.58% ownership interest in HRMI. Pl. Resp. Ind. 56.1 ¶ 23. On April 3, 2001, HRMI publicized Greenblatt's holdings in a press release stating "Greenblatt and his affiliated companies own approximately 25% of HRMI's outstanding stock" and that HRMI also agreed at that time to an increase in the percentage to 39.9%. Id. On April 5 and April 12, 2001, Greenblatt filed 13D's publicly disclosing a 29.56% ownership interest and a 38.7% ownership interest, respectively. Pl. Resp. 56.1 ¶ 23. HRMI also disclosed the 38.7% ownership interest in its 2000 Form 10-k. Id.
The parties dispute whether Greenblatt's 13D disclosures accurately reflect his ownership interest in HRMI because they do not disclose NOLA's holdings. Pl. Resp. Ind. 56.1 ¶ 23. No one at Wachovia looked the 13D and 10k disclosures or any other filing with the SEC concerning HRMI even though such filings could have been easily obtained internally at Wachovia. Pl. Resp. Ind. 56.1 ¶ 24.
The NASDAQ halts trading of HRMI
Once the Loop and NOLA accounts were opened, the accounts were used exclusively to acquire a substantial number of shares of HRMI. Neuhauser Rep. 56.1(b) ¶ 45, 46. Wachovia signed off on the trading in the Loop and NOLA accounts after the trade date but before the settlement date. Pl. Resp. Ind. 56.1 ¶ 20. In 2001, Neuhauser wrote Wachovia (then Prudential) asking it to accept checks from Loop's account to be deposited into the NOLA account. Ind. Rep. 56.1 ¶ 9.
On May 22, 2001, the NASDAQ halted trading in HRMI, its stock plummeted, and the value of the Loop and NOLA accounts fell into debit balances. Neuhauser Resp. 56.1(b) ¶ 47. The Loop account incurred a margin debt of $1,895,751.44 and the NOLA account incurred a margin debt of $1,098,459.90. Neuhauser Resp. 56.1 ¶¶ 49-50. All or most of the margin debt in the Loop and NOLA accounts resulted from their holdings in HRMI. Pl. Resp. 56.1 ¶ 16. The parties dispute whether Greenblatt told Wachovia that he *845 would personally "make good' on Loops and NOLA's debts after the NASDQ halted trading of HRMI stock and the Loop and NOLA accounts fell into substantial debit positions. Neuhauser Resp. 56.1(b) ¶ 48." According to Nichols, Loop's. Treasurer, Loop did not pay its margin debt to Wachovia because Loop did not have sufficient funds, and "didn't have availability on the line [of credit] from Banco to Loop to pay it." Corp. Rep. 56.1 ¶ 32. The parties dispute whether the Individual Defendants were personally liable for the account debits. Neuhauser Resp. 56.1 ¶ 51.
Loop payments to the Individual Defendants and other entities
May produced a summary list of payments from Loop from 2000 to 2002 that were in excess of $10,000. Corp. Rep. 56.1 ¶ 42. The summary reflects payments in 2000 to Greenblatt and. Banco in the amount of $741,900, Jahelka in the amount of $242,0000 and Nichols in the amount of $168,000. Corp. Rep. 56.1 ¶ 43. The summary list also reflects a $823,000 payment from Loop to RTC. Corp. Rep. 56.1 ¶ 49. Jahelka asserts that the payments to himself, Nichols, and Greenblatt in 2000 were treated as a return of capital, but was unable to determine how he arrived at the figures. Corp. Rep. 56:1 ¶ 44. Jahelka could not explain why the shareholders did not receive capital distributions at the same time and in proportion to their ownership interests.
In 2001, Loop made payments to Greenblatt and Banco in the amount of $472,5000, Jahelka in the amount of $67,500, and Nichols in the amount of $117,833.45. Corp. Rep. 56.1 ¶ 45. Jahelka explained that these payments were not capital distributions, but rather were "compensation." Corp. Rep. 56.1 ¶ 46. Jahelka could not explain why Loop's principals treated compensation in 2001 differently than in 2000 or why the amounts and frequency of compensation to Loop's directors varied. Id. For example, Jahelka could not explain why Greenblatt received $275,000 in compensation over a two-month period when Jahelka received nothing for the same two-month time period. Id.
May was unable to explain why Loop's owners were paid different "equity repayments" on the same day. Ind. Rep. 56.1 ¶ 35. He couldn't' recall why he classified payments to Jahelka in 2001 and 2002 as "fees and compensation". Id. May did not know why there was a note receivable from NOLA to Loop in the amount of $2 million. Id.
Nichols, Loop's Treasurer, could not explain why he received payments in January, March, and October nor could he explain why Greenblatt was not paid ay compensation in 2002. Ind. Rep. 56.1 ¶ 28. Nichols did not know why Jahelka was paid less than Nichols in 2002 considering Jahelka owned a greater percentage in the company nor could he recall why Loop's distributions to Nichols, Greenblatt, and Jahelka did not correlate with their percentage interest in the company. Id. In other words, Nichols could not explain the disparity in amounts and frequency of Loop's 2001 compensation payments. Corp. Rep. 56.1 ¶ 47.
According to Jahelka, the accounting behind the 2001 compensation payments exists only in the minds of Loop's owners. Corp. Rep. 56.1 ¶ 48, They did not keep time records and they had no employment agreements with Loop. Id. Jahelka testified that these payments were credited towards Loop's outstanding debt under it line of credit with Banco. Corp. Rep. 56.1 ¶ 50.
Loop's Payments and Transfers after it incurred debit balances
On May 22, 2001, the NASDAQ halted trading of HRMI and the Loop and NOLA *846 accounts fell into debit balances. Neuhauser Resp. 56.1(b) ¶ 47. Jahelka, Nichols, and Greenblatt were responsible for deciding that Loop would make other investments, such as payments to EZ Links, instead of paying down Loop's margin debit to Wachovia. Corp. Rep. 56.1 ¶ 35. After the Loop/NOLA margin debts became due, Loop made nearly $1.5 million in payments to Nichols, Jahelka, EZ Links, and Banco. Corp. Rep. 56.1 ¶ 43;
Ex. 8.
6/11/01-11/15/01 Loop pays Nichols $75,000
6/11/01-12/13/01 Loop pays EZ Links $461,337
6/12/01-09/25/01 Loop pays Jahelka $52,500
9/05/01-12/31/01 Loop pays Banco $452,500
1/03/02-11/07/02 Loop pays Banco $313,450
1/03/02-10/17/02 Loops pays Nichols $48,000
1/18/02-10/17/02 Loop pays Jahelka $30,000
2/15/02-10/15/02 Loop pays EZ Links $57,000
Corp. Rep. 56.1 ¶ 43; Ex. 8.
In April 2002, Banco extended its existing line of credit established in January 2000 to Loop. Corp. Rep. 56.1 ¶ 30. Although in default, Banco had not foreclosed on Loop's January 2000 loan and agreed to extend credit to Loop. Corp. Rep. 56.1 ¶ 33. Banco allowed Loop to increase its line of credit under the Banco Loan to $16 to $17 million in April 2002. Neuhauser Resp. 56.1(b) ¶ 11. The original principal amount of the loan from January 2000 was $9.9 million. Corp. Rep. 56.1 ¶ 30; Ex. 1. Greenblatt's input weighed heavily as to which creditors Loop could (and could not) pay, by virtue of Banco's status as Loop's senior secured lender. Corp. Rep. 56.1 ¶ 35. Banco has no employees; never obtained a personal guaranty for any of its loans to Loop; and possessed no written appraisals on Loop's assets prior to making its loans to Loop. Ind. Rep. 56.1 ¶ 23.
In 2002, Loop transferred all of its ownership interests in real estate partnerships to Loop Properties, Loop's wholly-owned subsidiary. Corp. Rep. 56.1 ¶ 36; Pl. Resp. Corp. 56.1 ¶ 20. Loop made the transfer even though Loop owed Wachovia unpaid margin debt. Corp. Rep. 56.1 ¶ 38. According to the Corporate Defendants Answer to Interrogatories, the transfer occurred to parse out Loop's real estate and the consideration for the transfer was Loop Properties' agreement to become an additional borrower on the Banco to Loop loan. Pl. Resp. Corp. 56.1 ¶ 23. However, Jahelka, Loop's and Loop Properties' President, testified that Marine Bank, one of Loop's unaffiliated secured lenders, requested the transfer and that the transfer had been contemplated for a number of years. Id. Jahelka added that the transfer was "immaterial in the sense that we were transferring from Loop to a wholly owned subsidiary of Loop," and his only justification for the transfer was that it was an "easier way of looking at the universe." Id. Jahelka doesn't think there is "any appreciable difference" between having the real estate interests under the umbrella of Loop versus Loop Properties. Id. In another matter, Jahelka testified that Loop was not required to provide any consideration to Loop Properties for the real estate ownership interest because Loop Properties was a subsidiary of Loop Corp. Corp. Rep. 56.1 ¶ 39. May, Loop's and Loop Properties' accountant, did not know what consideration, if any, was received from Loop Properties in exchange for the transfer of real estate interests. Corp. Rep. 56.1 ¶ 37.
The parties dispute whether Loop transferred its ownership interest in EZ Links to Scattered. Nichols testified that the transfer occurred, but Defendants claim that he was mistaken. Corp. Rep. 56.1 ¶ 41.
Between January 1, 2001 and December 2001, Loop transferred $1,507,838.52 to EZ Links. Corp. Rep. 56.1 ¶ 51; Ind. Rep. 56.1 ¶ 27. The payments occurred after the margin debt to Wachovia became due. Ind. Rep. 56.1 ¶ 27. The parties dispute *847 whether the transfer was a "payment" or an "investment." Ind. Rep. 56.1 ¶ 27. Greenblatt and Jahelka have an interest in EZ Links by virtue of their ownership of Loop. Id. Nichols believes that the "payments" were made pursuant to a "commitment to fund" from Loop to EZ Links. Id. However, Nichols has never seen such a commitment despite serving as Loop's treasurer. Id. The parties dispute whether Greenblatt was responsible for deciding that Loop would pay EZ Links in 2001 rather than pay down Loop's debt to Wachovia. Corp. Rep. 56.1 ¶ 51.
When asked to testify regarding Loop's assets, Jahelka stated that he did not know if Loop had sufficient assets to satisfy Wachovia's judgment and offered to have them appraised. Corp. Rep. 56.1 ¶ 53. Jahelka conceded that Loop's liabilities exceed its assets for purposes of a Chapter 7 liquidation in 2001-2002. Corp. Rep. 56.1 ¶ 54. Although Jahelka could not estimate the value of Loop's assets, he stated, "I don't think there is anybody else who has any more information than I have about what Loop's assets are but that is different from asking what your opinion of the value is." Corp. Rep. 56.1 ¶ 55.
Greenblatt testified that he is unable to calculate the value of Loop's assets, or even determine if the value of Loop's assets exceeded its liabilities. Corp. Rep. 56.1 ¶ 57. In order to make that determination, Greenblatt testified that he would need to appraise those assets. Id. His best estimate of the value of Loop's assets was "somewhere between zero and 20 million." Id.
NYSE Arbitration and NOLA's Bankruptcy Proceedings
Wachovia obtained an arbitration award against Loop in the amount of $2,439,000 and against NOLA in the amount of $1,387,355.39 in connection with the unpaid margin loan underlying this action. Pl. Resp. 56.1 ¶¶ 7, 12.
On April 27, 2005, NOLA filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court of the Northern District of Illinois. Neuhauser Rep. 56.1(b) ¶ 19. According to NOLA's bankruptcy filings, its only asset was 100% of the stock in its wholly-owned subsidiary, South Beach Securities, Inc. Neuhauser Resp. 56.1(b) ¶ 20. On August 24, 2005, Judge Goldgar dismissed the NOLA bankruptcy proceedings under § 1112(b) of the Bankruptcy Code on the grounds that it was not a good-faith filing. Neuhauser Resp. 56.1(b) ¶ 21. South Beach Securities, in turn, filed for bankruptcy the same day, and identified its only asset as shares of HRMI, the same stock that Defendants acquired on margin through their Loop and NOLA accounts at Wachovia. Neuhauser Resp. 56.1(b) ¶ 22.
STANDARD OF REVIEW
Summary judgment is proper when "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). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the Court will "limit its analysis of the facts on summary judgment to, evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true *848 for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").
DISCUSSION
III. Wachovia's Motion for Partial Summary Judgement against Neuhauser and Greenblatt and the Individual Defendants' Motion to Strike
Defendants Neuhauser and Greenblatt move to strike Paragraphs 31-36 and 39-43 of Wachovia's Local Rule 56.1 Amended Statement of Undisputed Facts ("ASUF") and Exhibits 9 and 12 attached thereto. Wachovia offered Paragraphs 31-36 and 39-43 and Exhibits 9 and 12 in support of its Motion for Partial Summary Judgment and in opposition to the Individual Defendants' Motion for Summary Judgment (Count I). Neuhauser and Greenblatt argue that Wachovia is asserting new facts that are inconsistent with the fraud theories articulated in the RSAC and that the Defendants were deprived of their ability to conduct meaningful discovery associated with the forms. Neuhauser Mot. Strike, pp. 1-2.
On March 21, 2007, Wachovia filed a Motion to Voluntarily Dismiss Counts II and III of the First Amended Complaint alleging Federal Securities Fraud and Conspiracy to Commit Fraud. (Dk.# 52). Wachovia also dismissed Greenblatt, Nichols, and Jahelka from Count VIII for Breach of Contract. Id. The Court granted Wachovia's motion and allowed it to file a Second Amended Complaint. (Dk.# 191). On April 3, 2007, Wachovia filed a Second Amended Complaint but went beyond removing Counts II, III, and parts of Count VIII by adding new allegations to its fraud claim. Namely, Wachovia alleged, for the first time, that Neuhauser and Greenblatt made fraudulent misrepresentations to Wachovia when the Loop and NOLA accounts were opened concerning the financial expertise and investment experience of the entities and their officers (the "new misrepresentation allegations"). Wachovia recorded the alleged misrepresentations on Exhibits 9 and 12, the Loop and NOLA account intake forms.
On May 3, 2007, this. Court struck Wachovia's Second Amended Complaint on the basis that Wachovia added new claims against Defendants more than one month after discovery closed and more than three years after the case was filed. Pl. Resp. Mot. Strike, Ex. D. Wachovia filed the RSAC removing the new allegations and striking Exhibits 9 and 12. Now, Wachovia attempts to use the same allegations and exhibits in support of its Motion for Partial Summary Judgment and in opposition to the Individual Defendants' Motion for Summary Judgment.
First, none of the new misrepresentation allegations found in Paragraphs 31-36 and 39-43 of the ASUF were pleaded in Wachovia's RSAC, the operative pleading in this case, and Exhibits 9 and 12 were not attached thereto or referenced therein. Pl. Rep. 56.1(b) ¶ 70. The new misrepresentation allegations and corresponding exhibits were not pleaded in Wachovia's previously filed pleadings. Pl. Rep. Def. 56.1(b) ¶ 67. It wasn't until after discovery closed and after Defendants filed dispositive motions that the new misrepresentation allegations were pleaded along with *849 the corresponding exhibits. Pl. Rep. 56.1(b) ¶ 68. Accordingly, the new misrepresentation allegations are new facts not previously found in any operative pleading filed against the Defendants.
Wachovia argues that these allegations are not "new facts" because Wachovia has always pleaded a fraud claim, but Rule 9(b) requires that averments of fraud be stated with particularity. Fed. R.Civ.P. 9(b). To satisfy this particularity requirement, Wachovia must state "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Howell v. Joffe, 483 F.Supp.2d 659, 670 (N.D.Ill.2007); citing Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir.1992) (quoting Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir.1992)). Wachovia has never pleaded allegations that comply with the specificity requirement of Rule 9(b) with respect to the alleged misrepresentations recorded in Exhibits 9 and 12, and therefore, Defendants were not reasonably notified of the specifics of the alleged fraudulent activity. Wachovia cannot amend its pleadings through allegations made in response to a summary judgment motion. See Lachmund v. ADM Investor Services, Inc., 191 F.3d 777, 782 (7th Cir.1999) (A complaint must outline the alleged misrepresentations and reasonably notify a defendant of the specifics of the alleged fraudulent activity, including the particular defendant's role); see also Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996).
Second, Wachovia claims that Exhibits 9 and 12 were produced in discovery and that Defendants had ample opportunity to cross-examine Wachovia's witnesses during the February 2007 depositions of Wachovia employees. Although Wachovia produced versions of the intake forms prior to the February depositions, these forms were illegible and obscured the very information that Wachovia now claims is false. See Ex. 1, 3 Def. Rep. Mot. Strike. Moreover, Loop's and NOLA's client profiles were recorded using codes. Without a code key the codes were meaningless as evidenced by the fact that none of Wachovia's witnesses produced for deposition in February were able to testify about the forms' entries without the key. Pl. Rep. 56.1(b) ¶ 86; Roy Dep. Tr. pp. 18, 29; Damrow Dep. Tr. pp. 46-49, 75; Stelzner Dep. Tr., pp. 48, 50, 104, 106-7. The illegible forms also obscured the name of the Wachovia employees who signed them. Pl. Rep. 56.1(b) ¶ 74.
Wachovia provided a legible copy of Loop form and a code key prior to the deposition of Wachovia employee Elizabeth Niemann ("Niemann"). Pl. Rep. 56.1(b) ¶¶ 84-85. Niemann was produced after discovery closed without the Court's permission. The legible Loop form revealed for the first time that Stelzner and Peter Cory signed the form. Pl. Rep. 56.1(b) ¶ 74. It wasn't until after discovery closed that Niemann was able to identify the handwriting on the form as belonging to Amy Goder, Stelzner's assistant. Pl. Rep. 56.1(b) ¶ 78. Wachovia has never identified Peter Cory or Amy Goder as persons with knowledge in its answer its interrogatories or in its Rule 26.1 disclosures. Pl. Rep. 56.1(b) ¶ 75, 77.
Wachovia produced the legible NOLA form and the retail code key after discovery closed and after Niemann's deposition. Pl. Rep. 56.1(b) ¶ 79. It appears that the NOLA account intake form was signed by Stelzner and Cory although Defendants have been unable to confirm that fact due to the close of discovery. Pl. Rep. 56.1(b) ¶ 79.
Significantly, Niemann easily retrieved copies of the legible forms by making a *850 phone call to Wachovia's microfiche department. Pl. Rep. 56.1(b) ¶ 73. Wachovia employees testified that the forms were for internal use only and not shown to the clients. Pl. Rep. 56.1(b) ¶ 87. In other words, the forms were always in Wachovia's possessionand never in the Defendants'. In essence, what Wachovia has done is asserted new facts and theories in its Motion for Partial Summary Judgment and in response to Defendants' Motion for Summary Judgment.
During the May 3, 2007 hearing, this Court stated:
"I am not permitting you to amend your fraud count. It is way too late in the game. It's an '04 case. To the extent that there has been discovery done on this form, it will come out at trial. It may be used in the summary judgments, but we're not going to open up discovery, and we're not amending the complaint further."
Id. (emphasis supplied by this Court). Discovery has not been done on these forms and Wachovia has only itself to blame since legible forms have been in its possession since their creation. This Court exercised its discretion when it denied Wachovia's attempt to add new facts and theories to a 2004 case, and will not entertain the same allegations set forth as part of Wachovia's dispositive motions especially when Defendants were deprived of an opportunity to develop evidence to rebut the allegations.
Therefore, Defendants' Motion to Strike Paragraphs 31-36 and 39-43 and Exhibits 9 and 12 of Wachovia's Amended Statement of Material Facts is granted. Because Plaintiffs Motion for Partial Summary Judgment is based solely upon allegations contained within Paragraphs 31-36 and 39-43 and Exhibits, 9 and 12, Wachovia's Motion for Partial Summary Judgment is denied and Defendants' Motion for Summary Judgment as to those allegations is granted.[3] Additionally, Defendants' Motion in Limine to Bar the New Fraud Claim is granted for the reasons set forth above.
IV. Wachovia's Remaining Promissory Fraud Allegations and the Individual Defendants' Motion for Summary Judgment (Count I)
In light of the Court's grant of Defendants' Motion to Strike and its denial of Plaintiffs Motion for Partial Summary Judgment, this Court must decide what allegations, if any, remain in Wachovia's common law fraud claim, and what evidence, if any, Wachovia proffered in support of those allegations.[4] To establish actionable fraud, Wachovia must prove that the Individual Defendants knowingly made a false statement of material fact with the intent to induce plaintiffs to act. *851 Ass'n Ben. Servs. v. Caremark Rx, Inc., 493 F.3d 841, 853 (7th Cir.2007). Plaintiffs must also show they justifiably relied on the statement and suffered damages resulting from their reliance. Id. Fraud must be proved by clear and convincing evidence. Id. Wachovia's remaining fraud allegations appear to center upon the Individual Defendants' representation that they would conduct trading in the Loop account "in accordance with all applicable laws or requirements" See Ind. Rep. 56.1 ¶ 5; See Loop Margin Agreement; Pl. Resp. Ind. 56.1, Ex. 10.
First, Wachovia claims that the Individual Defendants' agreement to trade the Loop account in accordance with federal securities law was an intentional misrepresentation because the Individual Defendants did not fully disclose their interest in HRMI to the U.S. Securities and Exchange Commission ("SEC"). Specifically, Wachovia alleges that Greenblatt's failure to disclose NOLA's interest in HRMI violated the SEC because NOLA was an alter ego of Greenblatt and the Individual Defendants and NOLA's interests weren't disclosed. Wachovia continues to advance this theory, albeit half-heartedly, despite its voluntary dismissal of its federal securities claims against the Individual Defendants.
On the outset, Wachovia's claims that Greenblatt's 13D filings violated federal securities law and that "Defendants utilized 19 different trading accounts for 11 different brokerage firms under the names of 8 different entities" to trade HRMI stock are wholly unsupported by citations to the record in its ASUF. Ind. Rep. 56.1 ¶¶ 7-8. Mere speculation or conjecture will not defeat a summary judgment motion and Wachovia's reply must state facts that require the denial of summary judgment supported by citations to the record. Fed.R.Civ.P. 56.1(b)(3); see also Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir.1997); Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 591 (7th Cir. 1997). Even if this. Court were to assume that the Individual Defendants' failure to disclose NOLA's interest in HRMI to the SEC violated federal securities law, Wachovia proffered no evidence that it relied upon the 13D disclosures to its detriment. See Ass'n Ben. Servs., 493 F.3d at 852-53; (Plaintiffs must show that they justifiably relied on the statements and suffered damages resulting from that reliance.) To the contrary, no one at Wachovia looked at any Schedule 13D filing or any other filing with the SEC concerning HRMI. Pl. Resp. Ind. 56.1 ¶ 24.
Second, Wachovia claims that the Individual Defendants purposefully concealed their intentions to use the Loop and NOLA accounts as a means to acquire a controlling interest in HRMI. Rev.2d Am. Compl. ¶ 78; Ind. Rep. 56.1 ¶¶ 6-7. Foremost, this Court rejected Wachovia's contention that the Individual Defendants had a duty to disclose that they were attempting to gain control of HRMI reasoning that it is the broker (Wachovia) and not the client who is the fiduciary and therefore has the resulting duty to disclose. Judge Hart Op., pp. 22-23; (Dk.# 52). Without such a duty, the Individual Defendants had no obligation to disclose their motivation for opening the accounts. Moreover, Wachovia failed to proffer sufficient evidence that its employees asked Neuhauser or any of the Individual Defendants why they wanted to open the Loop and NOLA accounts or if they intended to acquire a substantial percentage of ownership in HRMI or any other company. In other words, Wachovia failed to proffer evidence that the circumstances were such that Wachovia's inquiry created the opportunity and duty to speak. See Check v. Clifford Chrysler-Plymouth of Buffalo Grove, Inc., 342 Ill.App.3d 150, 276 Ill.Dec. 579, 794 N.E.2d 829, 835 (2003) (Fraud may also be based on the omission or *852 concealment of a material fact if accompanied by the intent to deceive under circumstances which create the opportunity and duty to speak.).
The absence of a duty to disclose justifies summary judgment. But, even if this Court were to assume that a duty existed, Wachovia failed to proffer clear and convincing evidence that the Individual Defendants had the "then-present intent" to violate securities laws and regulations. Meaning, Wachovia failed to reconcile how the Individual Defendants could have intended to conceal their desire to acquire a controlling interest in HRMI when Greenblatt publicly disclosed ownership of a significant percentage of HRMI in the Schedule 13D filings more than a month before the Loop account was opened. See Ass'n Ben. Servs., 493 F.3d at 853; (A claim for fraud, promissory or otherwise, requires a showing that, at the time the allegedly fraudulent statement was made, it was an intentional misrepresentation). By the time Neuhauser opened the NOLA account, Greenblatt publicly disclosed a 21.09% interest in HRMI. Five days after Neuhauser opened the NOLA account, HRMI issued a press release announcing that "Greenblatt and his affiliated companies own approximately 25% of HRMI's outstanding stock" and that HRMI agreed to an increase in the percentage to 39.9%. In the next eight months, Greenblatt acquired and publicly disclosed a total of 38.7% ownership interest in HRMI and HRMI disclosed the 38.7% interest in its 2000 Form 10-k. Wachovia could have easily obtained publicly available information concerning HRMI, Loop, NOLA, or Greenblatt before and after it opened the Loop and NOLA accounts, but didn't. Moreover, Wachovia fully monitored the trading in the Loop and NOLA accounts and it was approved by Wachovia employees after the trade date but before the settlement date. For these reasons, Wachovia's argument that the Individual Defendants purposefully concealed their interest in acquiring a controlling interest in HRMI fails as a matter of law.
Wachovia's game-time decision to focus its efforts on the misrepresentations on the intake forms[5] is reflected by the fact that its original fraud theories are nearly ignored in its ASUF. The majority of Wachovia's assertions in its ASUF are unsupported in the record, and therefore, the Individual Defendants' Motion for Summary Judgment as to Count I is granted and Count I is dismissed with prejudice in its entirety.
V. The Breach of Contract Claim against Neuhauser (Count VI)
Wachovia brings a breach of contract claim against. Neuhauser seeking to hold him personally liable for the Loop and NOLA margin debts. Wachovia's claim is based upon the Loop Margin Agreement and the PAA and this Court will discuss each in turn.
The Loop Margin Agreement
Wachovia alleges that Loop breached the Loop Margin Agreement by failing to meet margin calls and failing to conduct trading in the accounts in accordance with applicable securities law and regulations and that Neuhauser should be held personally liable for the breach. Rev.2d. Am. Compl. ¶¶ 114-116.[6] Wachovia's *853 breach of contract claim against Neuhauser fails as a matter of law because Neuhauser was not a party to the Loop Margin Agreement and Wachovia proffered no evidence that Neuhauser, as Loop's agent, intended to be bound by the terms of the contract. Rev.2d. Am. Compl., Ex. B; See Blank v. Noumair, 239 A.D.2d 534, 658 N.Y.S.2d 88 (1997) (A plaintiffs breach of contract cause of action was properly dismissed inasmuch as the defendant was not a party to the agreements in question); see also Walz v. Todd & Honeywell 195 A.D.2d 455, 599 N.Y.S.2d 638 (1993) (A corporation's president could not be personally liable for a contract signed on behalf of a disclosed principal, absent explicit evidence that the agent intended to be bound). Additionally, Wachovia failed to put forth evidence supported in the record that it performed all of its obligations under the contract. Therefore, Wachovia failed to proffer evidence such that a reasonable jury could conclude that the Loop Margin Account was breached and Neuhauser was personally liable.
The NOLA PAA
Wachovia alleges that NOLA breached the PAA by failing to meet margin calls and failing to conduct trading in the accounts in accordance with applicable securities law and regulations and that Neuhauser should be held personally liable for the breach. Neuhauser opened the NOLA account after NOLA, LLC was involuntarily dissolved and before it was reinstated, and although NOLA is a Limited Liability Company, Neuhauser signed a Partnership Account Agreement. Wachovia argues that because NOLA was dissolved at the time Neuhauser opened the account, Neuhauser can be held personally liable for NOLA's breach of the PAA as a "member or manager" to same extent as a director or shareholder under Section 10-10 of the Illinois Limited Liability Act and Section 5/3.2 of the Illinois Business Corporation Act. Pl. Resp., p. 12-13.
Despite Wachovia's assertions, when Section 10-10 was amended in 1998, the legislature removed the provision that allowed a member or manager of an LLC to be held personally liable for his or her own actions or for the actions of the LLC to same extent as a director or shareholder of a corporation. Puleo v. Topel, 368 Ill. App.3d 63, 306 Ill.Dec. 57, 856 N.E.2d 1152, 1158 (2006). The revised version also held that the failure of an LLC to observe the usual corporate formalities is not a ground from imposing personal liability on its members or managers for the liabilities of the company. Id. Thus, the LLC Act did not provide for a member or manager's personal liability to a third party for an LLC's debts. Id. Accordingly, Neuhauser cannot be held liable for NOLA's debts even though NOLA was dissolved at the time Neuhauser opened the NOLA account. See Puleo, 306 Ill. Dec. 57, 856 N.E.2d at 1158 (A member was not personally liable for unpaid debts to contractors engaged after LLC was dissolved because the legislature removed the provision that allowed a member or manager of an LLC to be held personally liable in the same manner as provided in 805 ILCS 5/3.20. In other words, the LLC Act did not provide for a member or manager's personal liability to a third party for an LLC's debts.) Moreover, Neuhauser was not a "member or manager" of NOLA. NOLA's "members" are Greenblatt's, Nichols's, and Jahelka's fathers.
Section 35-40 of the LLC Act also precludes Wachovia's breach of contract claim against Neuhauser. It provides:
*854 (d) Upon the filing of the application for reinstatement, the limited liability company existence shall be deemed to have continued without interruption from the date of the issuance of the notice of dissolution, and the limited liability company shall stand revived with the powers, duties, and obligations as if it had not been dissolved; and all acts and proceedings of its members or managers, acting or purporting to act in that capacity, that would have been legal and valid but for the dissolution, shall stand ratified and confirmed.
805 ILCS 180/35-40. NOLA filed its application for reinstatement on May, 31, 2001 and was subsequently reinstated on June 6, 2001. Additionally, Wachovia put forth no evidence that it performed its obligations under the PAA.
Accordingly, there is no statutory or other basis to hold Neuhauser personally liable for breach of contract of the Loop Margin Agreement and the PAA.[7] Therefore, the Individual Defendants' Motion for Summary Judgment as to Count VI for breach of contract is granted and Count VI is dismissed with prejudice in its entirety.
VI. The Alter Ego and Piercing Counts (Counts II through V)
Counts II and III allege that Loop and NOLA were the alter egos of the Individual Defendants and Counts IV and V allege that Loop's and NOLA's corporate veils should be pierced so that the Individual Defendants can be held personally liable for Loop's and NOLA's margin debts. In general, "[a] corporation is a legal entity that exists separately and distinctly from its shareholders, officers, and directors," Fontana v. TLD Builders, Inc., 362 Ill.App.3d 491, 298 Ill.Dec. 654, 840 N.E.2d 767, 775 (2005), and parties related to a corporation are normally not subject to corporate liabilities. See Dimmitt & Owens Fix, Inc. v. Superior Sports Prods., Inc., 196 F.Supp.2d 731, 738 (N.D.Ill.2002). However, an exception to this rule exists when an "individual or entity uses a corporation merely as an instrumentality to conduct that person's or entity's business." Fontana, 298 Ill.Dec. 654, 840 N.E.2d at 775-76. In such situations, the corporate veil of limited liability may be "pierced" and the individual held liable for the underlying cause of action. Sea-Land Servs., Inc. v. Pepper Source, 941 F.2d 519, 520 (7th Cir.1991) (quoting Van Dorn Co. v. Future Chem. & Oil Corp., 753 F.2d 565, 569-70 (7th Cir.1985)). "[P]iercing the corporate veil" is an equitable remedy designed to prevent those who fail to respect a corporation's separate legal existence from hiding behind the corporation to avoid liability for their wrongdoing. Fontana, 298 Ill.Dec. 654, 840 N.E.2d at 776; see also Dimmitt, 196 F.Supp.2d at 738. A party seeking to pierce the corporate veil must demonstrate that (1) there is "such unity of interest and ownership" between the individual and the corporation "that the separate personalities of the corporation and the individual . . . no longer exist;" and (2) the circumstances are "such that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice." Hystro Prods., Inc. v. MNP Corp., 18 F.3d 1384, 1388-89 (7th Cir.1994).
To determine whether the "unity of interest and ownership" between an individual *855 and a corporation is such that the corporate fiction should be disregarded, courts consider the following factors: "(1) inadequate capitalization; (2) failure to issue stock; (3) failure to observe corporate formalities; (4) nonpayment of dividends; (5) insolvency of the debtor corporation; (6) non-functioning of the other officers or directors; (7) absence of corporate records; (8) .commingling of funds; (9) diversion of assets from the corporation by or to a shareholder; (10) failure to maintain arm's length relationships among related entities; and (11) whether the corporation is a mere facade for the operation of the dominant shareholders." Dimmitt, 196 F.Supp.2d at 738; see also Fontana, 298 Ill.Dec. 654, 840 N.E.2d at 778; accord Hystro, 18 F.3d at 1389. The court's task is to decide whether these factors, taken as a whole, demonstrate that the corporation is actually the alter ego of the individual no one factor is determinative. See Dimmitt, 196 F.Supp.2d at 738.
Alter Ego and Piercing Corporate Veil (Loop)
Wachovia proffered sufficient evidence to demonstrate that Loop is actually the alter ego of Greenblatt, Jahelka, and Nichols. First, Wachovia proffered evidence that Loop was inadequately capitalized. "To determine whether a corporation is adequately capitalized, one must compare the amount of capital to the amount of business to be conducted and obligations to be fulfilled. . . . Absent adequate capitalization, a corporation becomes a mere liability shield, rather than an independent entity capable of carrying on its own business." Fiumetto v. Garrett Enters., Inc., 321 Ill.App.3d 946, .749 N.E.2d 992,1005, 255 Ill.Dec. 510 (2001). Loop's annual reports showed $1000 paid in capital despite Loop's claims that it was capitalized with a $10 million investment. Loop was also in default on a large loan from Banco and continued to seek credit from Banco despite its default status.
Second, Wachovia proffered evidence that Loop failed to observe corporate formalities and that Loop lacked corporate records. Loop's in-house accountant and counsel did not keep track of their time. Jahelka could not recall any of Loop's formal shareholders' meetings, Greenblatt could not recall whether Loop had board of directors' meetings nor could he recall whether Loop had directors at all. Jahelka did not recall seeing any minutes from any meetings, did not know whether a minute book existed for Loop, and testified that the corporate resolutions, to the extent that there were any, were not "in one place." May has never seen a minute book. Greenblatt testified that minute of annual shareholders meeting were recorded and kept, but when Loop's officers met, minutes were not kept.
Third, Defendants have not produced any records or other evidence regarding Loop's present financial status or its solvency. An unfavorable evidentiary presumption arises if a party, without reasonable excuse, fails to produce evidence which is under his control. Berlinger's, Inc. v. Beef's Finest, Inc., 57 Ill.App.3d 319, 14 Ill.Dec. 764, 372 N.E.2d 1043, 1048 (1978); see also McCracken v. Olson Cos., Inc., 149 Ill.App.3d 104, 102 Ill.Dec. 594, 500 N.E.2d 487, 492 (1986) (when there is a failure to produce a legitimate explanation as to the unavailability of business records, it can reasonably be inferred that those documents would have revealed the corporations' poor financial standing). Loop's owners, officers, and shareholders could not attest to its financial status or solvency. For example, Jahelka stated that he did'not know if Loop had sufficient assets to satisfy Wachovia's judgment and offered the Wachovia could have them appraised or determine their value by liquidating *856 them. Greenblatt testified that he is unable to calculate the value of Loop's assets, or even determine if, the value of Loop's assets exceeded its liabilities. Greenblatt's best estimate of the value of Loop's assets was "somewhere between zero and 20 million."
Fourth, Wachovia proffered evidence that Loop diverted assets from Loop to insiders. Wachovia produced evidence that Loop made unexplained sporadic payments to Greenblatt, Jahelka, Nichols and related entities both before and after the Loop/NOLA margin debts became due. According to Jahelka, the accounting behind the 2001 compensation payments exists only in the minds of Loop's owners. They did not keep time records, and they had no employment agreements with Loop. Loop also transferred assets, as discussed below, to Scattered, Banco, EZ Links, and Loop Propertiesall of which were related entities.
Wachovia also proffered evidence of Loop's failure to maintain arm's length relationships among related entities. The record indicates that Greenblatt, Jahelka, Nichols are Loop's owners, officers, and shareholders and that they worked out of the Wells building. Loop, RTC, Loop Properties, Banco, Scattered, and EZ Links also operate out of the Wells building. The record is replete with evidence that Loop, Loop Properties, Banco, Scattered, EZ Links and RTC share owners, officers, directors, shareholders, employees, equipment, and office space without any proof of reimbursement for services or proof of a formal expense sharing agreement.' See Berlinger's, 14 Ill.Dec. 764, 372 N.E.2d at 1048; see also McCracken, 102 Ill.Dec. 594, 500 N.E.2d at 492. The record is further replete with transactions between Loop, the Individual and Corporate Defendants, and other related entities with little to no formality or explanation. Employees switch stop working for one entity and begin working for another with no rhyme or reason. Assets, investments, and payments are transferred among related entities without explanation. Finally, the related entities loan money to one other, but fail to collect when the loans are in default and the related entities rent office space without expecting to receive rental payments. Therefore, Wachovia has proffered sufficient evidence to demonstrate that there is "such unity of interest and ownership" between the Greenblatt, Jahelka, and Nichols and Loop "that the separate personalities of the corporation and the individual . . . no longer exist."
In addition to demonstrating that Greenblatt, Jahelka, and Nichols and Loop should be treated as a single entity, Wachovia must also show that fraud or injustice will result if the court fails to do so. See Hystro, 18 F.3d at 1390. To satisfy this portion of the inquiry, Wachovia must point to more than the mere prospect of an unsatisfied judgment. See Sea-Land, 941 F.2d at 522. Rather, Wachovia must show that "some `wrong' beyond a creditor's inability to collect [will] result" if Loops's veil is not pierced, such as the individuals being unjustly enriched or unfairly avoiding liability after draining corporate assets. Id. at 524; see also Hystro, 18 F.3d at 1390. Importantly, the Seventh Circuit has given the following as an example of inequitable conduct that justifies veil piercing: "a corporate owner who used his several corporations to avoid responsibilities to creditors." Hystro, 18 F.3d at 1390 (citing Sea-Land, 993 F.2d at 1312).
There is no doubt that Wachovia has proffered evidence that it would inequitable to allow Greenblatt, Jahelka, and Nichols to escape responsibility for Loop's debts to. Wachovia. Indeed, to merely say that Loop's remaining assets were pilfered following the date the margin debt became due is an understatement. After the *857 Loop/NOLA margin debts became due, Loop made nearly $1.5 million in payments to Nichols, Jahelka, EZ Links, and Banco and Loop transferred assets to insider-entities such as Loop Properties, Scattered, Banco, and EZ Links.
If Loop's corporate veil is not pierced, Greenblatt, Jahelka, and Nichols will be unjustly enriched because they will be rewarded for using, transferring, and diverting money to which Wachovia was legally entitled. Such an inequitable result is exactly what the doctrine of piercing the corporate veil is designed to prevent. See, e.g., Hystro, 18 F.3d at 1391 HN5 ("The attempt to do corporate business without providing any sufficient basis of financial responsibility to creditors is an abuse of the separate entity and will be ineffectual to exempt the shareholders from corporate debts.") Therefore, the court holds that Wachovia proffered sufficient evidence to create a genuine issue of material fact that Loop's corporate veil should be pierced and Greenblatt, Jahelka, and Nichols held liable for any judgment rendered against Loop in this case.
Conspicuously absent from Wachovia's ASUF is evidence that Loop was Neuhauser's alter ego. Neuhauser was Loop's agent and entered into agreements on Loop's behalf. However, Wachovia proffered no evidence that Neuhauser had any control or ownership interest in Loop nor did Wachovia proffer evidence that Loop's assets were commingled with Neuhauser's or transferred to Neuhauser. Similarly, Neuhauser was not an owner, shareholder, member, officer, or director of any of the related entities. Accordingly, the Individual Defendants' Motion for Summary Judgment as to Counts II-V as they pertain to Neuhauser is granted.
Alter Ego and Piercing Corporate Veil (NOLA)
Regarding NOLA, Wachovia proffered evidence that Greenblatt's, Jahelka's, and Nichols' fathers were NOLA's "members." Wachovia also proffered evidence that NOLA's articles were amended to reflect that Teletech managed NOLA and that Greenblatt was Teletech's sole officer and employee. However, Wachovia produced little to no other evidence supportive of its assertion that there was a unity of interest and ownership between NOLA and the Individual Defendants to justify piercing NOLA's corporate veil. Wachovia failed to overcome the heavy burden of meeting the "stringent standards" applied to a voluntary contract creditor seeking to pierce the corporate veil under Illinois law. See Tower Investors, LLC v. 111 East Chestnut Consultants, Inc., 371 Ill.App.3d 1019, 1033, 309 Ill.Dec. 686, 700, 864 N.E.2d 927, 942 (2007) (Piercing the corporate veil is disfavored in a contract situation because the "party seeking relief in a contract case is presumed to have voluntarily and knowingly entered into an agreement with a corporate entity, and is expected to suffer the consequences of the limited liability associated with the corporate business form"). Accordingly, the In: dividual Defendants' Motion for Summary Judgment as to Counts II to V as those counts pertain to NOLA is granted and those allegations are dismissed with prejudice.
VII. Wachovia's claims under the Illinois Uniform Fraudulent Transfer Act (Counts VII through X)
The Corporate Defendants move for summary judgment on Counts VII through X of Wachovia's RSAC brought under the Illinois UFTA.[8] First, Wachovia *858 brings Counts VIII through X under Sections 160/5(a)(1) and (2) and Section 160/6(a)(1) of the UFTA. The UFTA indicates two types of fraudulent transfers, actual fraud and constructive fraud. 740 ILCS § 160; In re Martin, 145 B.R. 933, 946 (Bankr.N.D.Ill.1992). Actual fraud or "fraud-in-fact" results where the "debtor transfers property with the intent to hinder, delay, or defraud his creditors" while constructive fraud or "fraud-in-law" "occurs when (1) a voluntary gift is made, (2) there is an existing or contemplated indebtedness against the debtor, and (3) the debtor has failed to retain sufficient property to pay the indebtedness." Id.
Actual Fraud
Since actual fraud will not be presumed under Illinois law, Wachovia must prove all elements of actual fraud by clear and convincing evidence. Hofmann v. Hofmann, 94 Ill.2d 205, 225, 68 Ill.Dec. 593, 446 N.E.2d 499 (1983). Therefore, Wachovia must show that it is highly probable that Loop transferred its assets in question to Scattered, Loop Properties, and Banco with an actual intent to hinder, delay or defraud its creditor, Wachovia. In re Martin, 145 B.R. at 946. Various factors are helpful considerations in determining actual intent to defraud. Id. at 168. Some of the "badges of fraud" enumerated in the UFTA are: the transfer or obligation was to an insider; the debtor retained possession or control of the property transferred after the transfer; before the transfer was made or obligation was incurred, the transfer was of substantially all the debtor's assets; the debtor removed or concealed assets; the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; and the transfer occurred shortly before or shortly after a substantial debt was incurred. 740 ILCS 160/5(b)(1)(11). "When the badges of fraud are present in sufficient number, it may give rise to an inference or presumption of fraud" and the creditor may prove actual intent. Id.
Regarding Loop's transfer of certain stock in EZ Links to Scattered, considering Greenblatt's relationship to Loop, Scattered, and EZ Links, his testimony, at a minimum, creates a genuine issue of disputed fact that the transfer of EZ Links stock to Scattered occurred. Wachovia also put forth sufficient evidence that the transfer of the property was made to an insider.[9] Loop and Scattered are owned by Greenblatt, Jahelka, and Nichols and both corporations operate out of the Wells building along with EZ Links. Put another way, Greenblatt, Jahelka, and Nichols transferred stock in EZ Links from a company they owned to another company they owned. In that regard, Loop, the debtor, may have retained possession or control of the property transferred after the transfer. Wachovia also proffered evidence that the transfer occurred after Loop incurred a substantial margin debt. Moreover, Loop made $1.5 million in payments or investments to EZ Links after the debt *859 and prior to Loop's transfer to Scattered. Now, Loop claims to be insolvent and unable to pay its creditor, Wachovia. As such, Wachovia has proffered enough evidence to create a genuine issue of material fact that Loop transferred its assets in EZ Links to Scattered with an actual intent to hinder, delay or defraud its creditor.
Regarding Loop's transfer of Loop's ownership interest in a number of real estate partnerships to Loop Properties, Loop is owned by Greenblatt, Jahelka, and Nichols and Loop Properties is a wholly owned subsidiary of Loop. Greenblatt, Jahelka and Nichols are officers of both Loop and Loop Properties. Greenblatt, Jahelka, and Nichols effectively transferred assets from Loop, a company they owned, to Loop's wholly owned subsidiary where they served as officers. In that regard, Loop, the debtor, may have retained possession or control of the property transferred after the transfer. The transfer occurred after Loop incurred a substantial margin debt and Loop now claims that it is insolvent and unable to pay Wachovia. Moreover, Jahelka, Loop and Loop Properties' President, offered conflicting reasons for the transfer. As such, Wachovia has proffered sufficient evidence to create a genuine issue of material fact that Loop transferred its assets to Loop Properties with an actual intent to hinder, delay or defraud its creditor.
Regarding Loop's transfer of assets to Banco, after Loop incurred its margin debt, Loop received an extension of an existing line of credit from Banco in exchange for a security interest in all of Loop's assets. Banco agreed to the extension of credit despite the fact that Loop was currently in default. Banco is owned by Greenblatt's family trust and Greenblatt is its only employee. Greenblatt's input weighed heavily as to which creditors Loop could (and could not) pay, by virtue of Banco's status as. Loop's senior secured lender. In essence, Greenblatt as Banco's only employee and key decision maker decided to loan one of his company's additional money in exchange for a security. interest in his own company. This may explain why Banco never obtained a personal guaranty for any of its loans to Loop and possessed no written appraisals on Loop's assets prior to making its loans to Loop. Because Greenblatt controlled Banco and Greenblatt owned and controlled Loop, Loop, the debtor, may have retained possession or control of its assets after the transfer to Banco. As such, Wachovia has proffered enough evidence to create a genuine issue of material fact that Loop granted of a security interest in all of its assets to Banco with an actual intent to hinder, delay or defraud its creditor.
Constructive Fraud
Wachovia must also prove all of the elements of constructive fraud. In re Martin, 145 B.R. at 946. Constructive fraud or "fraud in law" is the cause of action set forth in § 5(a)(2) of the Act. Establishing fraud in law does not require proof of actual intent to defraud. General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1079 (7th Cir.1997); Scholes v. Lehmann, 56 F.3d 750, 757 (7th Cir.1995). Rather, transfers made for less than reasonably equivalent value, leaving a debtor unable to meet its obligations, are deemed or presumed to be fraudulent. In re Zeigler, 320 B.R. 362, 374 (Bankr. N.D.Ill.2005). Whether "reasonably equivalent value" has been given is typically a question of fact. Id. Wachovia need only prove constructive fraud by a preponderance of the evidence. See Bay State Milling Co. v. Martin, 145 B.R. 933, 946 (Bankr.N.D.Ill.1992). Here, Wachovia proffered sufficient evidence to create `a genuine issue of disputed fact of constructive fraud on all three transfers. First, all three transfers occurred after Loop incurred *860 a substantial margin debt and Loop failed to retain sufficient property to pay its indebtedness as evidenced by their claimed inability to pay the arbitration award and Loop's principals' testimony regarding Loop's insolvency.
In determining whether reasonably equivalent value was received under the UFTA, courts should consider how that phrase has been construed under the Bankruptcy Code. Grochocinski v. Zeigler (In re Zeigler), 320 B.R. 362, 374-75 (Bank.N.D.Ill.2005); In re Image Worldwide, Ltd., 139 F.3d 574, 577 (7th Cir. 1998). The Seventh Circuit has recognized that there is no fixed formula for determining reasonable equivalence. Id.; citing Barber v. Golden Seed Co., 129 F.3d 382, 387 (7th Cir.1997). That determination will depend on all the facts of each case. Id. Several factors that have been utilized to determine reasonably equivalent value include: (1) whether the value of what was transferred is equal to the value of what was received; (2) the market value of what was transferred and received; (3) whether the transaction took place at arm's length; and (4) the good faith of the transferee. Id.; Grigsby v. Carmell (In re Apex Auto. Warehouse, L.P.), 238 B.R. 758, 773 (Bankr.N.D.Ill.1999). "Reasonably equivalent value is measured at the time of the transfer." Id.; citing Berland v. Massa (In re Mussa), 215 B.R. 158, 172 (Bankr.N.D.Ill.1997). Nominal consideration is inadequate to satisfy the reasonably equivalent value standard. Id.; citing Image Worldwide, 139 F.3d at 580.
Regarding Loop's transfer to Scattered, Greenblatt, Jahelka, and Nichols transferred EZ Links stock to a company they owned, and therefore, was not at arm's length. Whether the transaction was made in good faith is disputed in light of Loop's debt to Wachovia and, Loop's transfer of $1.5 million to EZ Links prior to, its transfer to Scattered. Greenblatt did not know why EZ Links was transferred to Scattered after the margin debt was due. The fact that Greenblatt is incapable of explaining why Loop transferred $1.5 million to EZ Links and then transferred Loop's holdings in EZ Links to Scattered or articulate what, if any, consideration was received, is sufficient to this Court to create a genuine issue of material fact for trial.
Regarding Loop's transfer to Loop Properties, Wachovia has proffered sufficient evidence to show constructive fraud. First, for the reasons previously stated, the transaction was not at arm's length. Second, the transaction was made for no or inadequate consideration. May, Loop and Loop Properties' accountant, did not know what consideration, if any, was received from Loop Properties in exchange for the transfer of real estate interests. Jahelka also testified that Loop was not required to provide any consideration to Loop Properties for the real estate ownership interest because Loop Properties was a subsidiary of Loop. Jahelka also testified that the transfer was "immaterial in the sense that we were transferring from Loop to a wholly owned subsidiary of Loop," and his only justification for the transfer was that it was an "easier way of looking at the universe." Jahelka doesn't think there is "any appreciable difference" between having the real estate interests under the umbrella of Loop verses Loop Properties. This evidence creates a genuine issue of material fact for trial.
Regarding Loop's transfer to Banco, Wachovia has proffered sufficient evidence that the transaction was not at arm's length and was given without reasonably equivalent value. First, Greenblatt owned Loop and controlled Banco, and therefore, Wachovia proffered sufficient evidence that the transaction was not at arm's length. Second, Wachovia proffered sufficient *861 evidence that the transaction was not made in good faith because Banco decided to loan more money to Loop even though Loop was currently in default and Loop pledged its assets to Banco after the margin debt became due. Banco obtained no written appraisals on Loop's assets prior to making its loans to Loop. Therefore, Wachovia proffered sufficient evidence to create a genuine issue of material fact that the Banco-Loop transfer was one without consideration.
Accordingly, the Corporate Defendants' Motion for Summary Judgment as to Counts VIII through X is denied. Because the Court denied Counts VIII through X against the transferees, the Corporate Defendants' Motion for Summary Judgment as to Count VII, against Loop, is also denied.[10]
VIII. Conclusion
For the reasons stated herein, Defendants'. Motion to Strike Paragraphs 31-36 and 39-43 and Exhibits 9 and 12 of Wachovia's Amended Statement of Material Facts is granted. Plaintiffs Motion for Partial Summary Judgment is denied. The Individual Defendants' Motion for Summary Judgment as to Counts I and VI is granted. The Individual Defendants' Motion for Summary Judgment as to Counts II through V is denied as to Loop, Greenblatt, Jahelka, and Nichols, granted as to Loop and Neuhauser, and granted as to NOLA and the Individual Defendants. The Corporate Defendants' Motion for Summary Judgment as to Counts VII through X brought under the Illinois Uniform Fraudulent Transfer Act is denied. Additionally, the Individual Defendants' Motion to Bar Wachovia's New Fraud Claim is granted and the Corporate Defendants' Motion to Bar Alleged Fraudulent Conveyances not in the Complaint is denied.
So ordered.
NOTES
[1] Because Wachovia is Prudential's successor in interest, Prudential will also be referred to as Wachovia.
[2] Citations to Plaintiff's Response, to Individual Defendants' Rule 56.1 Statement of Undisputed Material Facts have been abbreviated to "Pl. Resp. Ind. 56.1," citations to Plaintiff's Response to Corporate Defendants' Rule 56.1 Statement of Undisputed Material Facts have been abbreviated to "Pl. Resp. Corp. 56.1," and citations to Plaintiff's Reply to Defendants' Local Rule 56.1(b) (3)(c) Statement of Additional Facts in Opposition to Wachovia's Motion for Partial Summary Judgment have been abbreviated to "Pl. Rep. Def. 56.1(b)." Citations to Defendants Neuhauser and Greenblatt's Local Rule 56.1(b)(3) Response in Opposition to Plaintiff's Motion for Partial Summary Judgment have been abbreviated to "Neuhauser Resp. 56.1(b)," The Individual and Corporate Defendants' Replies to Wachovia's Local Rule 56.1(b)(3) (c) Statements of Additional Undisputed Material Facts have been abbreviated to "Ind. Rep. 56.1" and "Corp. Rep. 56.1", respectively.
[3] Additionally, Paragraphs 32-34 of the ASUF fail to comply L.R. 56.1(a) requiring that the statement of facts consist of "short numbered paragraphs." For example, the "statement" in paragraph 32 is nearly two pages long. Because of the important function local rules like Rule 56.1 serve in organizing the evidence and identifying disputed facts, a district court has discretion to require strict compliance with those rules. See Koszola v. Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir.2004); Bordelon v. Chi. School Reform Ed. of Trustees, 233 F.3d 524, 527 (7th Cir.2000); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994).
[4] According to Wachovia, Paragraphs 1-9 of its ASUF and Paragraphs 23 and 24 of its Response to the Individual Defendants' Statement of Facts are supportive of its promissory fraud claim and are distinct from Wachovia's allegations associated with the account intake forms. Ind. Rep. 56.1 ¶ 5-8; Pl. Resp. Ind. 56.1 ¶¶ 23-24; Resp., p. 5. In reality, only paragraphs 5-9 and 23 and 24 appear to coincide with Wachovia's remaining fraud claims.
[5] Wachovia voluntarily dismissed its securities fraud claim and sought to amend the common law fraud claim "so as to focus on misrepresentations made by Defendants when the Accounts were opened and not on the securities allegations." Resp., p. 4. It is precisely those "misrepresentations" that this Court struck on the basis that they are new facts pleaded for the first time during dispositive motions,
[6] The Loop Margin Agreement includes a choice of law provision whereby the agreement to be governed by New York law. Neivia's ther party disputes that New York law applies.
[7] Wachovia argues that because Neuhauser signed the NOLA account documents in his capacity as a "general partner" of NOLA, he is personally liable for breach of contract. However, its is undisputed that NOLA is an LLC and Wachovia's misunderstanding of Neuhauser's role are not a basis for personal liability. To this end, Wachovia's allegations against Neuhauser for fraud based upon his representation that he was NOLA's general partner were previously dismissed by Judge Hart. Hart Op., p. 21.
[8] The Corporate Defendants' Motion in Limine to Bar Alleged Fraudulent Conveyances not in, the Complaint is denied. This Court finds that the RSAC sufficiently pleads these claims in Paragraphs 55-69. Moreover, unlike the newly added fraud claim, Defendants had ample opportunity to conduct discovery on these matters as evidenced by May's production of Exhibit 8 and questions elicited during the Individual Defendants' depositions. Additionally, the RSAC pleaded several Loop and NOLA transfers with specificity in Paragraph 123.
[9] Under the UFTA, if the debtor (Loop) is a corporation, an insider includes a director of the debtor, an officer of the debtor, a person in control of the debtor, a partnership in which the debtor is a general partner, a general partner in a partnership described in clause, or a relative of a general partner, director, officer, or person in control of the debtor.
[10] In addition to the reasons set forth above, Wachovia proffered evidence in support of Count VII that Loop made nearly $1.5 million in payments to insiders such as EZ Links, Jahelka, Banco, and Nichols after the margin debt became due, as opposed to paying down its debt to Wachovia. See Corp. Rep. 56.1 ¶ 43; Ex. 8. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265449/ | 185 Cal.App.4th 1159 (2010)
JAMSHID ARYEH, Plaintiff and Appellant,
v.
CANON BUSINESS SOLUTIONS, INC., Defendant and Respondent.
No. B213104.
Court of Appeals of California, Second District, Division Eight.
June 22, 2010.
*1161 Westrup Klick, R. Duane Westrup, Mark L. Van Buskirk, Jennifer L. Connor; Krieger & Krieger, Linda Guthmann Krieger and Terrence B. Krieger for Plaintiff and Appellant.
Dorsey & Whitney, Kent J. Schmidt, John P. Cleveland, Richard H. Silberberg and Robert G. Manson for Defendant and Respondent.
OPINION
FLIER, J.
Jamshid Aryeh appeals from the order (judgment) of dismissal of his second amended complaint brought under the unfair competition law (UCL), Business and Professions Code section 17200 et seq.[1] The trial court sustained respondent Canon Business Solutions, Inc.'s (Canon) general demurrer without leave to amend, ruling that the allegations failed to state a cause of action and that the claim is barred by laches, the applicable statute of limitations set forth in section 17208,[2] and the doctrines of res judicata and collateral estoppel. Appellant contends the continuing violations doctrine extended the statute of limitations, his action is not barred by laches, he adequately pleaded a UCL claim, and neither res judicata nor collateral estoppel applies. We hold the action is barred by limitations, and we therefore affirm.
*1162 FACTS[3]
Canon sells and leases copiers, scanners, printers and other products to customers. In November 2001, appellant, as an individual and doing business as ABC Copy & Print, entered into an agreement with Canon to lease a black and white copier. Under the agreement, appellant agreed to pay a monthly fee in return for a monthly copy allowance, and also agreed to pay an additional excess copy charge for each additional copy beyond the monthly allotment. In February 2002, appellant entered into a second lease agreement with Canon to lease a color copier under similar terms.
Shortly after entering into the copy rental agreements, appellant began noticing that meter readings taken by Canon's field service personnel did not appear to accurately reflect the number of copies actually made on appellant's leased copiers. Appellant asked Canon numerous times, orally and in writing, to repair the copiers and to take accurate readings, to no avail. Consequently, appellant began keeping his own records of the number of copies made on each machine and determined he was being charged for "test" copies made when Canon service personnel repaired or serviced the machines. Despite appellant's attempts to have Canon correct the "excessive" copying charges, Canon failed to reimburse appellant for such overcharges and also charged him late fees.
PROCEDURAL HISTORY
On January 31, 2008, appellant filed this suit on behalf of himself and similarly situated persons residing in the State of California who entered into copy rental agreements with Canon and who were overcharged for copies from four years preceding the action to the date of judgment. The complaint essentially alleged the foregoing facts and contained a single cause of action for unfair competition under the UCL. Appellant alleged that Canon knew or should have known it was charging appellant for excessive copies on the leased machines. Appellant sought injunctive relief, restitution and attorney fees.
Canon generally demurred to the complaint and asserted that the action was barred on various grounds, including the four-year statute of limitations under section 17208.
The trial court sustained the general demurrer. The court ruled appellant had notice of the problem in at least 2002, after the second lease, about six *1163 years before he filed this action and well after the four-year statute of limitations had expired. Although the court did not believe appellant could plead around the limitations, the court granted appellant leave to amend.
Appellant filed a first amended complaint, adding an allegation that on various dates between February 2002 and November 2004, Canon's service personnel ran "test copies" during service or maintenance calls.
The first amended complaint omitted the reference to the time appellant discovered the alleged overcharging. Specifically, in paragraph 14, the original complaint alleged, "Shortly after entering into the copy rental agreements with [Canon], [appellant] began to notice that the meter readings taken by [Canon's] field servicemen did not appear to reflect the accurate number of copies . . . ." (Italics added.) The first amended complaint substituted a new paragraph 14 that, among other things, omitted the word "shortly" and changed the allegation to read, "After entering into the copy rental agreements with [Canon], the products leased by [appellant] required service and/or maintenance." (Italics added.)
Appellant further alleged that the test copies run by Canon's service personnel caused appellant to exceed the total allowable copies and required appellant to pay additional fees to Canon. Appellant asserted that, from time to time during the four-year period prior to the filing of his complaint, Canon's service personnel "made from 50 to 900 Test Copies during various service and/or maintenance calls." The amended complaint listed 17 instances during the period commencing February 6, 2002, and ending November 16, 2004, in which Canon's service personnel made test copies. Appellant alleged, "Each time [Canon's] servicemen ran Test Copies . . . was independent of any prior occasions when [Canon's] servicemen ran Test Copies" and each date "resulted in a separate and distinct violation giving rise to separate and distinct damage."
Canon generally demurred to the amended pleading. The trial court again sustained the demurrer and granted appellant leave to amend a second time on counsel for appellant's representations that the payments obtained by Canon violated the written agreements between the parties. The court stated, "[t]he statute of limitations and standing to seek injunctive relief are issues, and I want to know if [appellant] is now a lessee of these Canon products." The court directed appellant's counsel to "put in whatever you think you can do, and we'll address this squarely when we come back."
Appellant filed a second amended complaint, in which he alleged that "[a]s of the date of the filing of this second amended complaint, [appellant] is not now a lessee of Canon products." For the first time, appellant attached copies *1164 of the November 2001 and February 2002 contracts. He asserted that neither contract authorized a charge for test copies.
Canon interposed a general demurrer on numerous grounds, including the statute of limitations, and requested that the court sustain the demurrer without leave to amend. Canon argued that the second amended complaint revealed even more defects in appellant's claim. For example, the written agreements appellant attached as exhibits established for the first time that no provision in the contracts required Canon to provide a credit for test copies. The attached agreements also showed that each agreement expired after 60 months. Thus, no injunctive relief would lie as neither agreement was currently in effect. Because appellant took no action to halt the alleged violation of his rights while the agreements were in effect, Canon also argued his claims were barred by laches.
The trial court determined the second amended complaint failed to dispel Canon's objections based on the statute of limitations. The court stated, "[t]here is no continuing practices doctrine that applies here" and "no equitable tolling that I can see that could possibly apply[;] [under section 17200][,] when the act occurs the clock starts, and here we have an allegation that there was actual knowledge in February of 2002 in an earlier pleading.. ., and you have been given the chance to amend to address this if it was possible."
After further argument by both sides, the court indicated it had not changed its mind. Appellant's counsel requested that "[i]f the court is inclined to sustain the demurrer without leave [to amend], I would ask the court to do it on the statute of limitations ground because . . . there needs to be some clarity, and I would like the opportunity to pursue that." The court concluded appellant was "concededly" aware of his claim "almost six years in advance of the suit being filed" and sustained the demurrer without leave to amend.
This timely appeal followed.
STANDARD OF REVIEW
When a demurrer is sustained, we ascertain whether the complaint states facts sufficient to constitute a cause of action. (Blank, supra, 39 Cal.3d at p. 318.) "[W]hen [a demurrer] 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; if not, there has been no abuse of discretion and we affirm." (Ibid.) The burden of proving such reasonable possibility rests squarely on the *1165 appellant. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d 457, 79 P.3d 569] (Schifando).)[4]
DISCUSSION
1. Four-year Statute of Limitations
Appellant does not dispute that the four-year statute of limitations prescribed in section 17208 applies to his action. However, appellant asserts the statutory clock not only starts at the time of the first occurrencei.e., the time an allegedly offending act was committed and caused injurybut rather "re-starts" each time the defendant invades the plaintiff's rights and causes injury. Specifically, appellant argues that a doctrine of continuing violations should be applied to violations of the UCL. We reject appellant's contention. His UCL cause of action accrued more than four years before he filed his action, and the continuing violation doctrine does not apply to the circumstances of this case.
A. Accrual
(1) A cause of action for unfair business practice under section 17200 must be commenced "within four years after the cause of action accrued." (§ 17208; see also Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179 [96 Cal.Rptr.2d 518, 999 P.2d 706] (Cortez); Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 364 [89 Cal.Rptr.3d 710]; see 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 128, p. 448.) The cause of action accrues when the defendant's conduct occurs, not when the plaintiff learns about the conduct. (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891 [117 Cal.Rptr.2d 331] (Snapp) ["`discovery rule,' which delays accrual of certain causes of action until the plaintiff has actual or constructive knowledge of facts giving rise to the claim, does not apply . . ." to causes of action under § 17200].) When the allegations regarding a defendant's conduct covers a period of time, the cause of action accrues at the time of the initial conduct. (Snapp, at p. 892 [complaint alleging wrongdoing that began more than four years before action commenced and was "on-going" barred by § 17208].)
In Snapp, the plaintiff insurance broker hired a salesman who brought with him a number of client accounts (TRG accounts). (Snapp, supra, 96 Cal.App.4th at p. 887.) In February 1993, the plaintiff learned that the salesman had deposited commissions earned on TRG accounts into his own bank account. Plaintiff confronted the salesman and terminated his employment in March 1993. (Ibid.) Soon thereafter, the plaintiff began receiving *1166 notices that the defendant was acting as broker for the terminated salesman on some TRG accounts. The plaintiff caused a "cease and desist" letter to be sent to the defendant in May 1993. (Id. at pp. 887-888.) The plaintiff then pursued the salesman for damages but its efforts were thwarted by his bankruptcy proceedings. Over four years later, in August 1997, the plaintiff filed a complaint against the defendant including a claim under the UCL. (96 Cal.App.4th at p. 889.)
The trial court in Snapp determined the plaintiff's UCL action was time-barred. (Snapp, supra, 96 Cal.App.4th at p. 889.) The appellate court agreed, holding that section 17208 required the action to be commenced within four years after the cause of action accrued. (Snapp, at p. 891.) "Thus, `the statute begins to run . . . irrespective of whether plaintiff knew of its accrual, unless plaintiff can successfully invoke the equitable tolling doctrine.'" (Ibid.) The trial court rejected the plaintiff's claim that the statute did not commence running until the defendant purchased the TRG accounts from the salesman in February 1994. The court noted the first amended complaint had alleged that defendant's solicitation of the plaintiff's former employees and customers "`started in or about May 1993, and is on-going.'" (Id. at p. 892, italics added.) The plaintiff thus knew of a potential claim against the defendant more than four years before it filed its complaint. (Ibid.) The court held the claims barred by the UCL four-year statute of limitations as the defendant's wrongful conduct, although allegedly "ongoing," began and was known to the plaintiff more than four years prior to the action's commencement. (96 Cal.App.4th at p. 892.) We find Snapp to be controlling.[5]
The UCL claim asserted in Snapp was based upon essentially the same type of conduct at issue in the present case: the allegedly wrongful collection of fees on a recurring basis. In Snapp, the fees at issue were recurring insurance premiums collected over a period of time beginning outside the limitations period and continuing into the limitations period. In the instant action, the fees at issue are recurring "excess copy charges" imposed over a period of time beginning outside the limitations period and continuing into the limitations period. The court in Snapp held that the very first allegedly improper brokering charge, which became known to the plaintiff soon after its imposition, commenced the running of the four-year statute of limitations, barring the plaintiff's claim even though the plaintiff asserted that the imposition of such charges was "ongoing." (Snapp, supra, 96 Cal.App.4th at pp. 891-892.) Here, appellant's initial complaint alleged that appellant began to notice that the meter readings taken by Canon's field service personnel did *1167 not appear to reflect the accurate number of copies "[s]hortly after" appellant entered into the copy rental agreements. Appellant thus admitted in the initial complaint he knew of the alleged inaccurate readings and overcharge about February 2002, six years before filing his lawsuit.
(2) Appellant omitted this allegation in his subsequent pleadings and offered no explanation for the omission nor made any showing he had since obtained further facts indicating his prior allegation was inaccurate. When a pleading contains allegations destructive of a cause of action, the defect cannot be cured in later filed pleadings by simply omitting the allegations without explanation. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 [1 Cal.Rptr.2d 543, 819 P.2d 1].) The "`"original defect infects the subsequent pleading so as to render it vulnerable to a demurrer."'" (Id. at p. 743.) The plaintiff is bound by his prior admission absent a showing of inadvertence or mistake or discovery of new facts justifying an amendment of the complaint. (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044 [36 Cal.Rptr.3d 532].)
(3) Resolution of the defense of the statute of limitations is normally a question of fact. However, when the uncontradicted facts are susceptible of only one legitimate inference, the court may determine the matter as a question of law. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [245 Cal.Rptr. 658, 751 P.2d 923]; Snapp, supra, 96 Cal.App.4th at pp. 889-890.) Such a rule serves the fundamental purpose underlying the statute of limitations, namely, to give defendants reasonable repose and to protect parties from having to defend stale claims. (Jolly, at p. 1112.) In the present case, the uncontradicted facts are susceptible of only one legitimate inference: appellant knew "shortly after" he entered into the second contract in February 2002 of Canon's alleged overcounting of copies and overcharging for them.
B. No Continuing Violation
Appellant cites no legal authorities justifying his assertion that the continuing violations doctrine applies to UCL claims. He claims application of the continuing violations doctrine to a "pure UCL consumer lawsuit" is an issue of first impression and it was error for the trial court not to apply the doctrine to save his UCL claim. In making this argument, appellant cites a smorgasbord of federal and state law authorities that are factually and legally inapposite, including authorities that do not involve the continuing violations doctrine. None of the authorities appellant cites compels us to apply the continuing violations doctrine to salvage his claim.
In Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 [111 Cal.Rptr.2d 87, 29 P.3d 175] (Richards), our Supreme Court discussed the continuing violations doctrine in context of the statute of limitations under the Fair *1168 Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). Quoting a leading treatise, the Supreme Court observed that the continuing violation doctrine is "`arguably the most muddled area in all of employment discrimination law.'" (Richards, at p. 813, quoting 2 Lindemann & Grossman, Employment Discrimination Law (3d ed. 1996) p. 1351.) The Supreme Court noted that the continuing violation doctrine is muddled because it "refers not to a single theory, but to a number of different approaches, in different contexts and using a variety of formulations, to extending the statute of limitations in employment discrimination cases." (Ibid.)
The Supreme Court identified four different approaches followed by state and federal courts in applying the continuing violation doctrine. (Richards, supra, 26 Cal.4th at pp. 813-817.) The Supreme Court concluded that courts applying the continuing violation doctrine "have tended toward a broader view of that doctrine when the cause of action involves ongoing harassment or ongoing failure to accommodate disability." (Id. at p. 817.) In the case of alleged FEHA violations, the Supreme Court determined the one-year statute of limitations should be "`construed liberally'" in order to "`carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination.'" (26 Cal.4th at p. 819.) Further, the FEHA limitations period "`should be interpreted so as to promote the resolution of potentially meritorious claims on the merits.'" (26 Cal.4th at p. 819.)
The Richards court declared: "we do not believe the FEHA statute of limitations should be interpreted to give a disabled employee engaged in the process of seeking reasonable workplace accommodation or ending disability harassment two unappealing choices: on the one hand resigning and bringing legal action soon after the first signs that her rights have been violated, or on the other hand attempting to persist in the informal accommodation process and risk forfeiture of the right to bring such an action altogether. Nor . . . is the third choiceretaining employment while bringing formal legal action against the employera viable option for many employees." (Richards, supra, 26 Cal.4th at pp. 820-821.) The court observed that there is good reason to view a failure over time to reasonably accommodate a disabled employee as a single course of conduct, as reasonable accommodation is often an "ongoing process" rather than a single action. (Id. at p. 821.) Moreover, in cases of employment discrimination or harassment, a single instance of an employer's failure to accommodate that may seem "trivial" in isolation can take on greater significance and inflict greater injury when viewed as "one of a series of such failures." (Id. at p. 822.) The court therefore held that when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment not amounting to a constructive discharge, the statute of limitations begins to run, "not necessarily when the employee *1169 first believes that his or her rights may have been violated," but either when the course of conduct is brought to an end or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. (26 Cal.4th at p. 823.)
This court applied the continuing violations doctrine in Alch v. Superior Court (2004) 122 Cal.App.4th 339 [19 Cal.Rptr.3d 29] (Alch), in which the plaintiffs filed a series of class action lawsuits on behalf of television writers against studios, networks and talent agencies for age discrimination under the FEHA.[6] We acknowledged in Alch the type of "continuing violation" comprising a "systematic, companywide corporate policy of discrimination against a protected class" that began prior to and extended into the limitations period. (Alch, supra, 122 Cal.App.4th at pp. 369, 374-376.)
We find no correlation between appellant's claim seeking recovery for individual instances in which he purports to have been wrongfully charged for "test" copies and the plaintiffs' claims in Richards and Alch, which were not based upon specific acts of alleged misconduct, but instead upon ongoing, accumulative harassment in the case of Richards or a broad and long-standing corporate policy of employment discrimination in the case of Alch. (Richards, supra, 26 Cal.4th at p. 822; Alch, supra, 122 Cal.App.4th at pp. 375-376.) Here, once appellant was aware he was being "overcharged" for test copies and that his protests to Canon were futile, he could and should have taken diligent action. He could not wait for years until the agreement expired while more "overcharges" accumulated before filing a complaint.
(4) Only one reported California case to our knowledge has extended the continuing violations doctrine outside the employment law context. In Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324 [95 Cal.Rptr.3d 880] (Komarova), a plaintiff who had been mistakenly and repeatedly harassed by a debt collection agency asserted a claim under the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.). The court found that the defendant's statute of limitations defense was overcome by the continuing violation doctrine, permitting recovery "`for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period.'" (Komarova, supra, at p. 343, quoting Richards, supra, 26 Cal.4th at p. 812.) The court, quoting *1170 Joseph v. J.J. Mac Intyre Companies, L.L.C. (N.D.Cal. 2003) 281 F.Supp.2d 1156 (Joseph), noted that "`[t]he key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts.'" (Komarova, supra, at p. 343.) Citing a close analogy between "`a pattern of debtor harassment consisting of a series of calls'" and a hostile work environment, the court explained that, as with hostile work environment cases, debtor harassment claims "by `"[t]heir very nature involve[] repeated conduct"' rather than `"discrete acts"' . . . ." (Komarova, supra, 175 Cal.App.4th at p. 344, quoting Joseph, supra, 281 F.Supp.2d at p. 1160.)
(5) Routinely billing and collecting for "test" copies is not the type of harassing and egregious conduct the continuing violation doctrine is designed to deter. (6) No comparable policy considerations compel applying the continuing violations doctrine to violations of the UCL. (Cortez, supra, 23 Cal.4th at p. 173.) The UCL is not an "all-purpose substitute" for a tort or contract action. (23 Cal.4th at p. 173.) The Legislature has expressed a goal that the UCL be "a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition." (23 Cal.4th at pp. 173-174.) A claim for recovery of past damages is not within the contemplation of the UCL.
The statute of limitations on a UCL action begins to run upon accrual unless equitably tolled. (Snapp, supra, 96 Cal.App.4th 884, 891.) Appellant does not assert equitable tolling applies to his action, nor does he allege any facts establishing the doctrine applies.
2. Leave to Amend
Appellant has not informed this court of any new facts or suggested how he could amend his complaint to overcome the statute of limitations. Nor did he make any such showing in the trial court. Thus, the court did not abuse its discretion in sustaining the demurrer without leave to amend. (Schifando, supra, 31 Cal.4th at p. 1081.)
DISPOSITION
The judgment is affirmed. Respondent Canon is to recover costs on appeal.
Lichtman, J.,[*] concurred.
RUBIN, Acting P.J.,Dissenting.
I respectfully dissent.
I agree with the majority's conclusion that the accrual date of appellant's claim dictates whether or not his complaint is barred by the statute of *1171 limitations. I also agree that the case does not rest on principles of delayed discovery or equitable tolling, doctrines that appellant expressly disavows.[1] I part with the majority because, in my view, there are several claims alleged in the operative second amended complaint that do not appear on the face of the pleading to be barred by the statute of limitations even if others are legally stale. Accordingly, the demurrer should have been overruled.
The majority correctly describes the chronology of complaints, demurrers and amendments, the last of which produced the trial court's ruling sustaining the demurrer to the second amended complaint without leave to amend. Briefly, the amendment process achieved its salutary purpose of forcing appellant to allege facts concerning when the alleged wrongs took place. By the second amended complaint, appellant had alleged that some of the unfair business practices took place as early as February 6, 2002, and some as late as November 16, 2004. The parties agree that there is a four-year statute of limitations for UCL claims. (Bus. & Prof. Code, § 17208.) Appellant acknowledges that any allegedly unauthorized copying charges that were debited more than four years before the filing of the original complaint on January 31, 2008, are barred by the statute of limitations. He contends those charges imposed on him after January 31, 2004some 4,628 unauthorized test copies according to the complaintconstitute UCL violations that occurred within the four-year period and are not barred by the statute of limitations.
The majority's opinion that the statute of limitations defeats appellant's entire action is predicated on two conclusions: (1) the "continuing violation" rule found in other areas of the law has no application to the UCL; and (2) the trial court's ruling was correct under the authority of Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884 [117 Cal.Rptr.2d 331] (Snapp). In my view, the majority has unnecessarily focused on the continuing violation rule, which has little to do with this case. Instead, the similarly named but conceptually distinct "continuous accrual" doctrine is applicable. I also conclude that Snapp does not support the trial court's ruling.[2]
*1172 Continuing Violation
The "continuing violation" rule is almost exclusively a creature of employment discrimination law.[3] As explained by our Supreme Court in its seminal opinion, the doctrine "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802 [111 Cal.Rptr.2d 87, 29 P.3d 175] (Richards).) If the continuing violation applies in a given case, not only is evidence of wrongdoing that would otherwise be barred by the statute of limitations admissible, the actual wrongdoingeven though occurring outside the statute of limitationsis actionable. "Essentially, the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period. In such cases, two questions are potentially raised. The first question is evidentiary: Are the alleged acts outside the limitations period admissible as relevant background evidence? [Citation.] The second and more difficult question is remedial: Is an employer liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period?" (Richards, supra, at p. 812.)
Richards involved claims for employment disability accommodation and harassment. In Yanowitz v. L'Oreal, USA, Inc. (2005) 36 Cal.4th 1028, 1054 [32 Cal.Rptr.3d 436, 116 P.3d 1123] (Yanowitz), the Supreme Court extended the doctrine to retaliation claims. A leading text on the subject describes the Richards/Yanowitz rule this way: "The continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period. Provided at least one of the acts occurred within the statutory period, the employer may be liable for the entire course *1173 of conduct, including acts predating the statutory period, under the continuing violation doctrine." (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2009) ¶ 16:264, p. 16-36 (rev. # 1, 2009).)
The continuing violation doctrine thus is implicated only when recovery is sought for some conduct that falls within the statute of limitations and some that falls outside the statute. If appellant were arguing that his pre-January 31, 2004 claims are nevertheless actionable because the continuing violation rule allows them to be joined with his timely claims, then we would have the issue the majority raises: Does the continuing violation rule apply to UCL claims? But that is not appellant's argument.
Appellant's contention is much simpler: respondent's conduct in violating the terms of the parties' agreement comprised a series of unfair business practices. Those acts occurring within four years of the filing of the complaint are actionable. Those that occurred earlier are barred by the statute of limitations. The straightforward nature of his point emerges if we consider this case as one involving a series of breaches of contract. Appellant alleges respondent breached the two copier leases on several dates in 2002, 2003 and 2004. In contract statute of limitations terms, the breaches that occurred before 2004 would be barred under Code of Civil Procedure section 337, subdivision 1, the four-year statute for breach of a written contract. Those breaches occurring in 2004, within four years of the filing of the complaint, are actionable. Ironically, respondent agrees that this is essentially a breach of contract case, or as respondent puts it in the first sentence of its appellate brief: "This is a garden variety contract dispute concerning the propriety of certain charges . . . ."[4]
Viewed in the context of breach of contract, it is well established that, when a contract is breached on multiple occasions, each breach gives rise to a new cause of action. Witkin states the rule plainly: "When a contract is severable, the duty to perform each part arises independently and the statute begins to run on the severable obligations from the time the performance of each is due." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 665.) Examples can be found in a wide variety of contract settings generally similar to the present case. (E.g., White v. Moriarty (1993) 15 Cal.App.4th 1290, 1299 [19 Cal.Rptr.2d 200] [promissory note]; Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 200 [164 Cal.Rptr. 585] [buy-sell agreement with monthly payments for life]; Carrasco v. Greco Canning Co. (1943) 58 Cal.App.2d 673, *1174 675 [137 P.2d 463] [monthly salary increase]; Tillson v. Peters (1940) 41 Cal.App.2d 671, 674 [107 P.2d 434] [rent due under lease]; Lee v. DeForest (1937) 22 Cal.App.2d 351, 360 [71 P.2d 285] [deficiency in monthly rental recoverable under terms of lease after lessor's lease to new tenant]; Trigg v. Arnott (1937) 22 Cal.App.2d 455, 459 [71 P.2d 330] [installment note].)
Some cases have characterized this statute of limitations principle as the continuous accrual rule. A careful parsing of "continuing violation" and "continuous accrual" reveals more than a semantical difference. The former describes what is essentially a fiction: a wrong committed sometime in the past will be deemed to have also been committed later if it is closely connected with more recent misconduct. The original violation will be treated as continuing even if the earlier act is completed. Continuous accrual is different. Rather than extending the impact of prior conduct, it acknowledges the reality that similar acts can continue to occur: one can breach the same contract over and over again in substantially the same manner. Earlier conduct is not extended but repeated. Witkin describes the rule as follows: "In several types of cases it has been held that, where a right or obligation is continuing, successive causes of action to enforce it continuously accrue, and the bar of the statute can only be set up against those causes on which the period has run." (3 Witkin, Cal. Procedure, supra, Actions, § 669, p. 886.)
For example in City of Santa Cruz v. Pacific Gas & Electric Co. (2000) 82 Cal.App.4th 1167, 1178 [99 Cal.Rptr.2d 198], the appellate court held that in an action against a public utility for underpayment of franchise fees, a new claim accrued each time the utility underpaid fees. To be sure, many of the continuous accrual cases involve public entities. (E.g., Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 821 [107 Cal.Rptr.2d 369, 23 P.3d 601] [declaratory relief claim based on invalidity of tax timely even though original wrong occurred beyond statute of limitations; some taxes had been imposed within statutory period]; Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288 [2 Cal.Rptr.3d 497] [reimbursement for overages paid to housing fund limited to three years before filing of complaint under applicable three-year statute of limitations]; Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, 580-581 [59 Cal.Rptr.2d 104] [fact some claims for pension benefits were barred by statute of limitations did not prevent recovery for timely claims; right to pension payments "is a continuing right" (italics omitted)].) However, the rule applies in the private sector as well.
In Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375 [11 Cal.Rptr.3d 412], the Court of Appeal was required to determine whether a complicated oil and gas lease was breached on a single date, more than four years before the complaint was filed, or whether *1175 repeated failures of performance arising out of monthly payments and production delivery obligations were recurring breaches. The court held that the statute of limitations barred only those claims that predated the complaint by four years. "As a general rule, a cause of action accrues and a statute of limitations begins to run when a controversy is ripethat is, when all of the elements of a cause of action have occurred and a suit may be maintained. [Citation.] Where there is a continuing wrong, however, with periodic new injury to the plaintiff, the courts have applied what Justice Werdegar has termed a `theory of continuous accrual.' [Citations.] [¶] Thus, where performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due. The situations in which this rule has been applied include not only installment contracts [citation], but also such diverse contractual arrangements as leases with periodic rental payments [citation], and contracts calling for periodic, pension-like payments on an obligation with no fixed and final amount [citation]." (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co., supra, at p. 1388; but see Green v. Obledo (1981) 29 Cal.3d 126, 141-142 [172 Cal.Rptr. 206, 624 P.2d 256] [court may have equitable power to shorten statute of limitations].)
I see little difference between this case which involves charges imposed on appellant as part of the rent he is contractually obligated to pay and, for example, the rental obligations in Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1338 [67 Cal.Rptr.2d 726], which involved a complicated formula based on square footage, cost of construction and the consumer price index. In each case a new breach, a new unfair business practice, starts a new accrual period.
Nor do I discern any public policy that would justify in this context treating UCL claims based on multiple acts differently from claims based on contract or other theories. Even after Proposition 64, the UCL is broad in scope, a tool that often may be used to correct unfair business practices. (See In re Tobacco II Cases (2009) 46 Cal.4th 298, 317 [93 Cal.Rptr.3d 559, 207 P.3d 20]; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350 [108 Cal.Rptr.3d 1350].) If an unlawful business practice is ongoing and causes an injury, the injured party may be entitled to the limited remedies afforded by the UCL, as well as to those available under more traditional theories. The nature of the repeated wrong does not change by the inclusion of a UCL claim along with common law causes of action. The injunctive relief authorized by the UCL should not be automatically unavailable following recent misconduct merely because the first unfair practice took place several years earlier. And, the policies of the statute of limitations and of the UCL seem equally furthered if any restitutionary award is limited to the four years preceding the filing of the complaint. (Bus. & Prof. Code, § 17208.)
*1176 Snapp & Associates Ins. Services, Inc. v. Robertson
The second reason the majority gives for affirming the trial court's ruling is the decision in Snapp, supra, 96 Cal.App.4th 884. In Snapp the plaintiff asserted common law and statutory causes of action including a claim under the UCL. The underlying wrong was the theft of insurance client accounts and commissions by one Gwin, who had long ago fled the country. The lawsuit was filed against defendant Robertson for his role in the misappropriation of the customer accounts. Although the complaint was filed more than four years after the conversion took place, the plaintiff argued that the statute of limitations did not bar his claims because of the delayed discovery rule and equitable tolling. (96 Cal.App.4th at p. 887.) Yet, Gwin had stolen the accounts in February 1993 and the plaintiff "immediately began receiving notices that Robertson was acting as broker of record for Gwin" on some of the accounts. (Ibid.) In March 1993 the plaintiff sued Gwin and ultimately recovered over $400,000, only a portion of which he was able to collect. He filed suit against Robertson on August 21, 2007, more than four years after the theft.
The court concluded that Robertson committed a single wrong when he became complicit in Gwin's theft of the plaintiff's customer files, an act that had taken place outside the statute of limitations. The court's analysis was confined to whether equitable tolling or delayed discovery applies to UCL claims. Because the plaintiff knew about Robertson's complicity almost from the get-go, no tolling or delayed discovery was available. There is no discussion of continuing violation or continuous accrual. None of the cases cited in the majority opinion here or in this dissent are mentioned in Snapp. The court assumed there was a single act of conversion and concluded that it had taken place more than four years before the complaint. Snapp begins and ends with a rejection of equitable tolling and delayed discovery, neither of which appellant asserts here.[5]
In contrast to Snapp is Suh v. Yang, supra, 987 F.Supp. 783 (Suh), a case that the majority does not discuss. Suh implicitly addresses both the continuing violation and the continuous accrual rules in the context of a UCL claim, and, in my view, correctly distinguishes the two concepts. There, the plaintiff allegedly created a new form of martial arts and over many years had licensed some 120 schools nationwide to use his trademark and logo. The *1177 defendant first joined the plaintiff in his operations, and then left to form a competing school. The plaintiff filed suit against the defendant for his improper use of the terms "Kuk Sool Won" and "Kuk Sool" in which the plaintiff had claimed a protected proprietary interest. He alleged federal trademark and Lanham Act (15 U.S.C. § 1051 et seq.) violations, as well as causes of action under California common law and statutes, including the UCL.
The parties each moved for summary judgment. Much of the opinion is devoted to a discussion of whether the name marks in question are legally protected, but the defendant also asserted that the state UCL claim was barred by the statute of limitations. The defendant concededly started using the marks in 1987, but the lawsuit was not filed until 1996 well beyond the four-year limitation of Business and Professions Code section 17208. The court nevertheless rejected the defendant's statute of limitations argument. It first assumed that neither delayed discovery nor equitable tolling applied to UCL actions, the same points which appellant here has conceded. (See Stutz Motor Car of America, Inc. v. Reebok Internat., Ltd. (C.D.Cal. 1995) 909 F.Supp. 1353, affd. 113 F.3d 1258, cert. den. (1997) 522 U.S. 863 [139 L.Ed.2d 112, 118 S.Ct. 169].) The court then held: "Assuming, arguendo, that Stutz correctly interprets Section 17208, Plaintiff's claim for unfair competition would not be barred by the four year statute of limitations since the alleged wrongs (i.e., the wrongful use and dilution of Suh's service marks) are multiple, continuous acts, and some of these acts have occurred within the limitations period." (Suh, supra, 987 F.Supp. at p. 795.) The court found that Stutz was distinguishable because the claim there was based on a single wrong. The Suh court concluded that the plaintiff's claims involved repeated acts of wrongful appropriation, each creating "a separate cause of action for unfair competition and trademark infringement." (Id. at p. 796.)
Without using the term "continuous accrual," Suh applies the doctrine to a case presenting multiple UCL claims, some of which had occurred within the statute of limitations and some of which were outside the statute. Those occurring within four years, it held, were actionable. Using legal jargon, the present case is on "all fours" with Suh. And almost as if the federal court had anticipated the debate between the majority and the dissent here, the court expressly refused to consider whether "recovery for allegedly infringing acts occurring prior to the four year statute of limitations is barred" because the parties had not raised it. (Suh, supra, 987 F.Supp. at p. 796, fn. 9, italics added.) Again, without using the term "continuing wrong," the Suh court thus decided it did not have to decide whether that doctrine applied in UCL cases because the issue had not been raised.
In my view neither the continuing violation rule nor the holding in Snapp supports the decision the majority reaches. On the contrary, application of *1178 long-standing principles in analogous settings, often described as the "continuous accrual" rule, fortifies the conclusion that none of appellant's post-January 31, 2004 claims is barred by the statute of limitations. Accordingly, I would reverse the judgment in favor of respondent and permit the case to proceed.[6]
NOTES
[1] All further statutory references are to the Business and Professions Code unless indicated otherwise.
[2] Section 17208 provides, in pertinent part: "Any action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accrued."
[3] On review of the sufficiency of a complaint against a general demurrer, we treat the demurrer as admitting all properly pleaded material facts, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58] (Blank).) We also consider matters subject to judicial notice. (Ibid.)
[4] We discuss additional standards of review below in context of specific issues.
[5] Appellant asserts that Snapp's holding is relevant only to the issue whether the delayed discovery rule should be applied to UCL claims and has no relevance to the issue whether a cause of action is subject to "continuing violations" or "multiple accrual." We do not interpret Snapp's holding so narrowly.
[6] Appellant notes Alch included claims under the UCL. In Alch, we found that the trial court erred in ruling the plaintiffs were required to show potential competitive harm or consumer deception to state a claim under the UCL. (Alch, supra, 122 Cal.App.4th at pp. 400-403.) But we held the trial court properly sustained demurrers to UCL claims because the plaintiffs were seeking nonrestitutionary backpay and the court had no authority to award such damages in the first instance. (122 Cal.App.4th at p. 408.) Alch did not discuss the continuing violation doctrine with respect to the statute of limitations under the UCL. (122 Cal.App.4th at pp. 400-409.)
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] The Supreme Court has not resolved the question of whether delayed discovery applies to unfair competition law (UCL) claims. (Grisham v. Philip Morris, U.S.A., Inc. (2007) 40 Cal.4th 623, 634, fn. 7 [54 Cal.Rptr.3d 735, 151 P.3d 1151]; see Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 920 [90 Cal.Rptr.3d 225].)
[2] I do not quarrel with the majority for addressing the continuing violation rule because that is how appellant unfortunately has framed the issue and how respondent understandably has answered. Somewhat buried in both the second amended complaint and in appellant's opening brief is the frank concession that appellant is not seeking restitution for charges that occurred before the four-year statute of limitations of Business and Professions Code section 17208. As I suggest below, the continuing violation doctrine, which "saves" otherwise barred claims, has no application to those claims that in fact fall within the statute of limitations, as is the case with all of appellant's post-January 31, 2004 claims.
[3] "Almost exclusively" because there are occasional applications in other areas of law. (E.g., Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 343-346 [95 Cal.Rptr.3d 880] [continuing violation rule applies to claims for violations of Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.)].) Although the court in Suh v. Yang (N.D.Cal. 1997) 987 F.Supp. 783, 795-796 did not use the term "continuing violation" it described the California UCL claim as "continuing." The court held that the statute of limitations did not bar state claims based on conduct occurring within four years of the filing of the complaint. The court expressly did not address whether recovery could be based on acts prior to the four-year statute. (Suh, at p. 796, fn. 9.) Other unpublished federal cases suggest that UCL claims are not barred when at least some multiple, continuous acts occurred within the limitations period. (E.g. Betz v. Trainer Wortham & Company, Inc. (9th Cir. 2007) 236 Fed.Appx. 253, 256, citable under Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6 [107 Cal.Rptr.3d 373].)
[4] Neither the trial court nor the majority nor this opinion addresses whether on the merits appellant has stated a cause of action for violating the UCL. Because the initial series of attacks on the complaint dealt with the statute of limitations and other procedural issues, no court has been called upon to determine whether, in respondent's words, this is only a garden variety contract case or appellant has adequately alleged a UCL claim.
[5] Some UCL claims may have a single accrual date. As in Snapp, the facts of a case might indicate a solitary unfair business practice, albeit with some tangential adverse consequences occurring over a period of time. Under those circumstances it may be that as a factual matter there is only one accrual date, such that the continuous accrual rule would be unavailable. The present case, though, involves a series of repeated, discrete acts, each of which, in my view, is separately actionable.
[6] Because the majority found the statute of limitations barred appellant's claim, it did not need to address the two other grounds respondent asserted in support of its demurrer. Briefly, respondent's laches argument is unpersuasive because laches, assuming it otherwise applies, requires a showing of prejudice (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 263 [80 Cal.Rptr.3d 876] [delay and either acquiescence or prejudice]), and the second amended complaint does not show prejudice on its face. As to respondent's res judicata/collateral estoppel defense, those doctrines have only narrow application when the initial proceeding was in small claims court, as was the case here. (See Perez v. City of San Bruno (1980) 27 Cal.3d 875, 884-886 [168 Cal.Rptr. 114, 616 P.2d 1287]; Sanderson v. Niemann (1941) 17 Cal.2d 563, 571 [110 P.2d 1025]; Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374 [16 Cal.Rptr.3d 628].) Neither the second amended complaint nor the matters of which the court could take judicial notice would permit the trial court to conclude that appellant's action is barred by res judicata or collateral estoppel as a matter of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366486/ | 871 P.2d 1023 (1994)
STATE of Utah, Plaintiff and Appellee,
v.
Danny RIVERA, Defendant and Appellant.
No. 930154-CA.
Court of Appeals of Utah.
March 11, 1994.
Joan C. Watt and Elizabeth A. Bowman, Salt Lake City, for appellant.
Jan Graham and Kenneth A. Bronston, Salt Lake City, for appellee.
Before BENCH, BILLINGS and GREENWOOD, JJ.
OPINION
BENCH, Judge:
Defendant entered a conditional plea of no contest to the charge of possession of a dangerous weapon by a restricted person, purportedly preserving his right to appeal the district court's denial of his motion to quash the circuit court's bindover. We vacate the district court's acceptance of defendant's plea and remand for further proceedings.
FACTS
On the morning of July 26, 1992, Brenda Kilgrow was alone at a Top Stop Store in South Salt Lake where she was employed as a cashier. At about 7:00 a.m., an hour before the store opened, Kilgrow stepped outside to smoke a cigarette. A man, allegedly the defendant, approached her and asked if she would cash a check for him. Kilgrow indicated that she would, but only upon presentation of proper identification. The man then walked away.
The man returned a few minutes later and asked Kilgrow if she could make change for the telephone. When Kilgrow unlocked the door and stepped back into the store, the man followed. The man showed Kilgrow a gun he had tucked in his pants and demanded that Kilgrow give him the money in the cash register. Kilgrow handed the man *1024 $22.00 and pushed the silent alarm. The man threw the money on the counter, stating that it was not enough. He then rummaged through the cupboards before leaving the store, heading north. Kilgrow did not see the man get into a vehicle.
When the man left, Kilgrow locked the door and waited for the police to arrive. Kilgrow described the man to the police dispatcher as a Mexican male who wore a hat, black shirt, black sweat pants, black athletic shoes, and no socks. Officer Dusten Hansen received from dispatch the address of the Top Stop and a description of the suspect. About four blocks from the Top Stop, Hansen saw defendant driving a small pickup truck, heading north. Because defendant fit the description given by Kilgrow, Hansen pursued defendant with his overhead lights on. Defendant did not stop and started driving faster. Hansen then turned on his siren as he continued the chase. Officer Chris Snyder, who had also responded to the robbery, joined in the pursuit. Defendant reached speeds between sixty and seventy miles per hour before losing control of his vehicle and hitting a bus bench.
Defendant quickly left his vehicle but returned momentarily and appeared to be reaching for something inside the vehicle. Defendant then fled on foot. Hansen and Snyder chased defendant through a yard and alley and then back to Hansen's patrol car. Defendant entered the patrol car, locked the doors, and attempted to start it. Hansen broke the passenger side window and tried to enter the car. Defendant then exited the patrol car and attempted to enter a passing motorist's vehicle. The motorist resisted, and Hansen and Snyder were able to grab defendant, wrestle him to the ground, and arrest him. At the time of his arrest, defendant was wearing a black short sleeved shirt, black sweat pants, black shoes, and no socks.
After defendant's arrest, he was placed in another officer's vehicle. Snyder brought Kilgrow to the scene to see if she could identify defendant. Snyder and Kilgrow did a slow drive-by from across the street and Kilgrow identified defendant as the robber.[1]
Snyder found a handgun on the floor of the passenger side of defendant's vehicle. He also found a dark blue striped baseball cap in defendant's vehicle.
Defendant was charged by information with three counts: Count I aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1990); Count II possession of a dangerous weapon by a restricted person,[2] a second degree felony, in violation of Utah Code Ann. § 76-10-503 (Supp.1991); and Count III failure to respond to an officer's signal to stop, a third degree felony, in violation of Utah Code Ann. § 41-6-13.5 (1988).
At a preliminary hearing in the circuit court, the magistrate found probable cause to bind defendant over for trial on all three counts. Subsequent to the preliminary hearing, defendant brought a motion in the district court to quash the circuit court's bindover order on Counts I and II. The district court denied defendant's motion. Defendant then entered a conditional guilty plea of no contest to Count II, purporting to preserve his right to appeal the district court's denial of his motion to quash the bindover. Pursuant to the terms of the plea, the district court dismissed Counts I and III.
ISSUE
The dispositive issue before this court is whether the district court erroneously allowed defendant to enter a conditional no contest plea, which purported to preserve for appeal the district court's denial of defendant's motion to quash the bindover.
ANALYSIS
In State v. Sery, 758 P.2d 935 (Utah App. 1988), this court held that conditional pleas *1025 involving suppression of evidence are permissible only where "the plea entered by the defendant with the consent of the prosecution and accepted by the trial judge specifically preserves the suppression issue for appeal and allows withdrawal of the plea if defendant's arguments in favor of suppression are accepted by the appellate court." Id. at 938. This court reasoned that
"the legal guilt of the defendant exists only if the prosecution's case rests on admissible evidence. The crux of the dispute is resolution of the alleged error on appeal, not factual guilt or innocence. The conditional plea is tailored to further the resolution of these specific issues at the reasonable expense of any state interest in obtaining finality in the proceedings. The plea continues to serve a partial state interest in finality, however, by establishing admission of the defendant's factual guilt. The defendant stands guilty and proceedings come to an end if the reserved issue is ultimately decided in the government's favor." We see no logical inconsistency between a plea that admits factual guilt or refuses to contest it and the preserved claim on appeal that the government is constitutionally barred from being able to prove its case because of the illegal seizure of evidence.
Id. at 939 (quoting Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Nonjurisdictional Issues, 26 UCLA L.Rev. 360, 378 (1978)).
Recently, in State v. Montoya, 858 P.2d 1027 (Utah App.1993), and State v. Harris, 858 P.2d 1031 (Utah App.1993), we clarified Sery's requirement that the disposition on appeal must effectively bring the prosecution of the case to an end. We stated that Sery set out two criteria for the use of a conditional plea:
First, the contested issue must involve the admission of evidence allegedly seized in an illegal manner. Second, the disposition on appeal must effectively bring the prosecution to an end. That is, if the appellate court determines that the trial court did not err in admitting the contested evidence, "[t]he defendant stands guilty and proceedings come to an end." Conversely, since the legal guilt of the defendant rests on the admission of the contested evidence, if the appellate court determines that the trial court erred in admitting the contested evidence, the "government is constitutionally barred from being able to prove its case because of the illegal seizure of evidence," and the proceedings necessarily come to an end.
Montoya, 858 P.2d at 1029 (quoting Sery, 758 P.2d at 939); accord Harris, 858 P.2d at 1032-33.[3]
In Montoya, we also recognized that this court's decision in State v. Keitz, 856 P.2d 685 (Utah App.1993), "inferred that a Sery plea might also be applicable to any legal issue `upon which the case ultimately hinges.'" Montoya, 858 P.2d at 1029 (quoting Keitz, 856 P.2d at 688); accord Harris, 858 P.2d at 1033. We noted, however, that while Keitz expanded the legal issues that can be contested with a conditional plea, it still required that the "disposition on appeal must effectively bring the prosecution of the case to an end." Montoya, 858 P.2d at 1029-30; accord Harris, 858 P.2d at 1033. Without the strict finality requirement for Sery pleas, defendants could easily circumvent the rules that provide for the orderly review of nonfinal, interlocutory decisions. See Kennecott Corp. v. State Tax Comm'n, 814 P.2d 1099, 1103-05 (Utah 1991). Therefore, unless the issue attached to a Sery plea will effectively bring the prosecution of the case *1026 to an end, the plea is improper and we will not entertain it on appeal.
In the present case, defendant entered a conditional no contest plea on Count II, possession of a dangerous weapon by a restricted person, purporting to preserve his right to appeal the district court's denial of his motion to quash the bindover. If this court were to address the merits of this issue, we might reach one of two decisions: either the district court properly denied defendant's motion, or the court erroneously denied defendant's motion. If we were to determine that the district court properly denied defendant's motion, defendant would have to accept both his factual and legal guilt and the prosecution would effectively be at an end. If, however, we were to determine that the district court erroneously denied defendant's motion, and reverse, the State could potentially refile the information against defendant on Count II and proceed with the prosecution. See State v. Brickey, 714 P.2d 644, 647-48 (Utah 1986) (criminal charges previously dismissed for insufficient evidence may be refiled if new or previously unavailable evidence has surfaced or other good cause justifies refiling).[4] In addition, because the dismissal of Counts I and III was predicated upon defendant's plea of no contest on Count II, if we reverse, defendant's plea would be withdrawn and the State could proceed against defendant on Counts I and III. Thus, our determination would not necessarily end the prosecution of this case.
We reiterate that a trial court, when it allows a defendant to enter a guilty plea conditioned upon his or her right to appeal a certain issue, must "make sure the record clearly establishes that resolution of the issue on appeal, one way or another, will necessarily end the prosecution of the case." Montoya, 858 P.2d at 1030. In the present case, the district court should not have accepted defendant's conditional no contest plea because an appeal of the purportedly preserved issue would not necessarily end the prosecution of the case.
CONCLUSION
Because our decision would not necessarily end the prosecution of this case, we conclude that the district court erred in accepting defendant's conditional plea of no contest. Defendant's plea is therefore vacated and the case is remanded for trial or other proceedings.
BILLINGS and GREENWOOD, JJ., concur.
NOTES
[1] There is some question as to the reliability of Kilgrow's identification of defendant as the robber both at the scene and later in a lineup. We offer no opinion regarding the reliability of Kilgrow's identification of defendant as the robber, but merely note that this may be an issue on remand.
[2] Defendant was on parole at the time of this incident and was, therefore, considered a restricted person under Utah Code Ann. § 76-10-503(2)(a) (Supp.1991).
[3] Defendant argues that Montoya conflicts with Rule 11(i) of the Utah Rules of Criminal Procedure, which provides:
With approval of the court and the consent of the prosecution, a defendant may enter a conditional plea of guilty, guilty and mentally ill, or no contest, reserving in the record the right, on appeal from the judgment, to a review of the adverse determination of any specified pre-trial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
Defendant claims that the rule implies further proceedings because it allows for the withdrawal of a guilty plea if a defendant is successful on appeal. However, the withdrawal of a guilty plea if a defendant is successful on appeal was anticipated by Sery, Montoya, and Harris, and does not constitute further proceedings in violation of the Sery finality requirement.
[4] Brickey indicated that good cause to refile "might exist when a prosecutor innocently miscalculates the quantum of evidence required to obtain a bindover and further investigation clearly would not be dilatory." State v. Brickey, 714 P.2d 644, 647-48 n. 5 (Utah 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366479/ | 871 P.2d 198 (1994)
Stephanie ARCHULETA, Appellant (Plaintiff),
v.
Amy VALENCIA, Appellee (Defendant).
No. 93-152.
Supreme Court of Wyoming.
March 24, 1994.
*199 James W. Gusea, Gusea, Pattno & White, P.C., Cheyenne, for appellant.
Julie Nye Tiedeken, Cheyenne, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
GOLDEN, Justice.
Appellant, a passenger injured in a single vehicle accident, brought an action against appellee, the driver of the vehicle, to recover damages. Appellant contends the jury's award of damages was inadequate as a matter of law, and she appeals the district court's denial of both her motion to amend the judgment and her alternative motion for a new trial.
We affirm.
ISSUES
Appellant presents the following statement of the issues:
Whether the amount awarded to the appellant (plaintiff below) for non-economic damages and for physical impairment and disfigurement [was] inadequate given the injuries proven.
A. The $750.00 awarded to the appellant for non-economic damages is grossly and manifestly inadequate or so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of loss.
B. The $990.00 awarded to the appellant for physical impairment or disfigurement is grossly and manifestly inadequate or so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of loss.
Appellee rephrases the single issue for review as:
Is the jury verdict inadequate as a matter of law?
FACTS
On the evening of August 22, 1990, appellant, appellee, and appellee's sister traveled from Cheyenne, Wyoming, to Greeley, Colorado, in appellee's truck. In the early morning hours of August 23, 1990, the three women began their return trip to Cheyenne with appellee driving. On the trip back, appellee failed to negotiate a curve and lost control of the vehicle, which rolled over and landed upside down. Appellee's sister was thrown from the vehicle and killed, and appellee and appellant were both trapped in the vehicle. Appellant remained trapped for approximately twenty minutes before being extracted *200 from the vehicle and transported to the North Colorado Medical Center in Greeley.
Appellant suffered a ruptured spleen in the accident and underwent surgery that same morning to have the damaged spleen removed. The surgery left her with a scar from her sternum to just below her navel. Appellant has also experienced pain and stiffness throughout her neck and shoulders and in her pelvic area. In August 1991, appellant began wearing a transcutaneous electrical nerve stimulator (TENS unit) to alleviate the pain in her hips. In addition to her physical injuries, appellant has been diagnosed with post-traumatic stress disorder stemming from the accident.
On April 21, 1992, appellant filed a complaint in district court seeking to recover damages for her injuries. Trial was held on March 16-18, 1993. The jury returned a verdict finding that appellee was negligent and her negligence caused appellant's damages. The jury then awarded appellant $15,680.12 for economic damages, including medical expenses and lost earnings. In addition, the jury awarded $750 for noneconomic damages, such as pain and suffering, and $990 for physical impairment or disfigurement.
Appellant, contending the jury's awards for noneconomic damages and physical impairment or disfigurement were inadequate as a matter of law, moved for amendment of the judgment or in the alternative a new trial. The district court denied both motions.
STANDARD OF REVIEW
The law of the place where the tort or wrong was committed is the law that governs and is to be applied with respect to the substantive phases of torts or the actions therefor. Duke v. Housen, 589 P.2d 334, 342 (Wyo.1979); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302, 304 (1954). We thus apply Colorado law in determining whether the jury's verdict was inadequate as a matter of law.
A jury's verdict will not be set aside on the basis of inadequacy unless, in view of the evidence, it can be said with certainty that the verdict is grossly and manifestly inadequate, or unless the amount of the verdict is so small as to indicate clearly that the jury neglected to consider all the evidence pertaining to the plaintiff's injuries.
Martinez v. Shapland, 833 P.2d 837, 839 (Colo.App.1992) (citing Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980)). If a plaintiff proves that he has incurred a certain kind of damages, economic or noneconomic, the jury must compensate the plaintiff for such damages. Rine v. Isham, 152 Colo. 411, 382 P.2d 535, 538 (1963). However, this court will not disturb the jury's determination of damages absent a clear indication that it ignored the trial court's instruction on the measure of damages. King v. Avila, 127 Colo. 538, 259 P.2d 268, 272 (1953).
In reviewing the evidence, we must view it in the light most favorable to the party seeking to sustain the judgment. Preuss v. Schoonover, 154 Colo. 531, 391 P.2d 880 (1964). "We assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict, and assigning to the evidence of the successful party every favorable inference that can be reasonably and fairly drawn from it." Medlock v. Merrick, 786 P.2d 881, 883 (Wyo.1990) (quoting Seaton v. State of Wyoming Hwy. Comm'n, Dist. No. 1, 784 P.2d 197, 207-08 (Wyo.1989)). See also, Coulthard v. Cossairt, 803 P.2d 86, 91 (Wyo.1990).
DISCUSSION
Appellant argues that the $750 award for noneconomic damages, and the $990 award for physical impairment or disfigurement, are grossly and manifestly inadequate. She contends that the awards clearly and definitely indicate that the jury neglected to consider evidence of appellant's loss and ignored the trial court's instructions on damages. In support of this argument, appellant cites to the testimony presented concerning her pain, suffering and trauma both during the accident and throughout her treatment and recovery, as well as testimony concerning her scarring and decreased ability to participate in certain activities.
We note, initially, that the jury did not disregard either appellant's noneconomic *201 damages or her disfigurement/physical impairment damages; it awarded some amount for each. This distinguishes this case from the cases cited by appellant in which the juries, after hearing uncontroverted evidence of noneconomic damages, and after being instructed to compensate for such damages, returned verdicts with no award for noneconomic damages. See Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722 (1971); Brncic v. Metz, 28 Colo. App. 204, 471 P.2d 618 (1970). See also Martinez, 833 P.2d at 839.
Additionally, the testimony concerning appellant's pain and suffering following the accident was not uncontroverted. The testimony of appellant's physicians, and appellant's own deposition testimony, contradicted the trial testimony of appellant and her family concerning appellant's pain and suffering.
For example, at trial, appellant testified that the level of pain she experienced remained constant over the course of the year following the accident. Appellant's mother likewise testified that appellant was in constant pain, hurting, crying and screaming for approximately twelve months following the accident.
Contradicting the testimony of appellant and her mother, appellant's surgeon, Dr. Sally A. Parsons, testified that she examined appellant two weeks after her surgery and documented no problems or reported pain. Dr. Otis Schleyer, who continued with appellant's care, reported in his notes that from appellant's second visit her condition was improving. Additionally, appellant was examined approximately one year after the accident by Dr. Parsons and Dr. John E. Winter, an orthopedic surgeon. Both described her pain as "mild."
At trial, defense counsel also pointed out discrepancies between appellant's trial testimony and her deposition testimony concerning the level of pain she has experienced and continues to experience. Appellant testified at trial that she needed to wear the TENS unit three times per week for four or five hours at a time. However, during a deposition before trial, appellant testified she only wore the unit for a couple of hours at a time after heavy physical activity or during weather changes.
Inconsistencies in testimony also exist concerning appellant's ability to participate in activities such as rollerskating, dancing and volleyball. Appellant testified that because of the pain in her hip, she could not participate in those activities at the level she could before the accident. However, Dr. Parsons testified that appellant told her she had no complaints concerning walking or exercise. Dr. Parsons also testified that she observed appellant sitting, standing and moving and did not observe that she was experiencing any pain.
Examples of these types of inconsistencies can be found throughout the trial testimony. As the sole judge of the credibility of witnesses, the jury was not required to accept appellant's version of the facts. Kahler v. Martin, 570 P.2d 720, 722 (Wyo.1977). Based on the foregoing, we cannot conclude as a matter of law that the jury's $750 award for noneconomic damages was grossly and manifestly inadequate.
Similarly, we cannot conclude that the $990 award for disfigurement and physical impairment was grossly and manifestly inadequate. As noted above, the jury heard conflicting testimony concerning the impairment of appellant's ability to participate in activities she enjoys. The jury also heard testimony describing the abdominal scar from appellant's splenectomy, as well as her increased susceptibility to overwhelming infection, which was described as a remote possibility.
A reading of the cases cited by appellant illustrates that determinations of the adequacy of damages awarded by a jury vary depending upon the factual circumstances surrounding each case. See, e.g., Thorpe v. City and County of Denver, 30 Colo. App. 284, 494 P.2d 129 (1971); Preuss, 391 P.2d 880; Cottingham v. Star Bus Line, 152 Colo. 188, 381 P.2d 25 (1963); King, 259 P.2d 268. We agree with the trial court's reliance on the following passage from WRIGHT AND MILLER:
Necessarily all such formulations are couched in broad and general terms that furnish no unerring litmus for a particular case. On the one hand, the trial judge *202 does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter. Probably all that the judge can do is to balance these conflicting principles in the light of the facts of the particular case. If, having given full respect to the jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.
* * * * * *
The Court is not free to set aside the verdict merely because the judge might have awarded a different amount of damages, but it may do so if the proceedings have been tainted by appeals to prejudice or if the verdict, in light of the evidence, is so unreasonable that it would be unconscionable to permit it to stand.
11 CHARLES A. WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, §§ 2806, 2807 (1973). This court may not substitute its own judgment for the collective judgment of the jurors. Lee's Mobile Wash v. Campbell, 853 P.2d 1140, 1143 (Colo.1993). Having reviewed the evidence of appellant's disfigurement and physical impairment, we cannot say the jury's determination of damages is so unreasonable that it would be unconscionable to permit it to stand.
CONCLUSION
The jury's determination of damages was not grossly and manifestly inadequate, and we thus affirm the district court's denial of appellant's motion.
CARDINE, J., filed a dissenting opinion.
CARDINE, Justice, dissenting.
Appellant was awarded special damages in the amount of $15,680.12. She was awarded general damages for pain, suffering, physical impairment, disfigurement and loss of enjoyment of life in the amount of $1,740. This amount was clearly inadequate for the trauma, injury, hospitalization, surgery, difficult recovery and resultant condition of appellant. The general damages should generally have some reasonable relation to the specials, and not be so small or so great as to shock the conscience of the court. The majority opinion correctly recognizes that Colorado's substantive law of torts applied in this case, however, the disputed issue involves procedural law which is governed by Wyoming law. I would hold that, pursuant to Wyoming Rule of Civil Procedure 59, there was in the general damages awarded appellant, "(a)(5) Error in the assessment of the amount of recovery [it being] too small," W.R.C.P. 59(a)(5), and accordingly remand for new trial or for the trial court to amend the judgment by granting an additur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366478/ | 73 Wash. App. 844 (1994)
871 P.2d 656
THE STATE OF WASHINGTON, Respondent,
v.
DON W. COLE, Appellant.
No. 12500-9-III.
The Court of Appeals of Washington, Division Three.
April 21, 1994.
Richard G. Wogsland, for appellant.
James H. Kaufman, Prosecuting Attorney, and Ronald D. Shirley, Deputy, for respondent.
SWEENEY, J.
Don W. Cole was convicted of one count of possession of a controlled substance, to-wit: cocaine, and one count of possession of drug paraphernalia. He contends the court erred in denying his motion to suppress evidence obtained after an improper traffic infraction seizure. We reverse and dismiss.
I
FACTS
On March 1, 1991, three state patrol troopers and two deputies in four cars were conducting a "DWI emphasis patrol" on the highway between Colfax and Pullman. At approximately 9 p.m., Sergeant Lee C. Boling observed a car traveling 25 miles per hour in a 35-mile-per-hour zone and occasionally weaving onto the shoulder of the highway. Sergeant Boling pulled in behind the car and noticed its exhaust pipes were also too short. He decided to stop the car and issue a citation for defective exhaust, improper lane travel and driving on the shoulder. RCW 46.37.390; RCW 46.61.140.
*846 Trooper Lee Slemp and Deputy Vincent Waltz, in another car, followed Sergeant Boling to assist. The car pulled off the road in response to the patrol's signal. Sergeant Boling parked behind and to the left, while Trooper Slemp parked behind and to the right. Trooper Robert Aucutt arrived sometime later in a third patrol car. Sergeant Boling approached and began questioning the car's driver, Kevin Williams. Trooper Slemp approached the passenger side, where Mr. Cole was sitting.
As Trooper Slemp approached the passenger door, he noticed Mr. Cole was not wearing a safety belt and decided to cite him for a safety belt infraction; he did not know whether Mr. Cole had been wearing a safety belt before the car stopped. He asked for identification, but Mr. Cole did not have identification with him. Mr. Cole did provide his name and birthdate.
Trooper Slemp asked Mr. Cole to step out of the car. He later testified that standard state patrol procedure called for separation of an unidentified person from other car occupants. In this way, he explained, a trooper could ask Mr. Cole his name out of Mr. Williams' presence and then return to confirm the information with Mr. Williams. Mr. Cole got out of the vehicle and the trooper patted him down for weapons. Finding none, Trooper Slemp recorded Mr. Cole's name and birthdate for a radio check, sent Mr. Cole to stand in front of Sergeant Boling's car and directed Deputy Waltz to watch him.
As Trooper Slemp walked to where Sergeant Boling was questioning Mr. Williams, he heard a clinking sound, turned around, and saw Mr. Cole pushing something under the patrol car with his foot. Trooper Slemp retrieved the object and identified it as a glass pipe containing a white crystalline residue, probably cocaine. Mr. Cole was arrested for possession of a controlled substance. In the search of Mr. Cole incident to his arrest, Trooper Aucutt also found a vial of white powder, over $5,000 in cash, another glass pipe and an 8-inch knife.
*847 Mr. Cole was charged by information with possession of a controlled substance (RCW 69.50.206(b)(5), .401(d)) and possession of drug paraphernalia (RCW 69.50.102, .412(1)). He moved to suppress the evidence recovered in the search as the fruits of an illegal search and seizure. The trial court denied the motion. Mr. Cole submitted his case on a stipulated record and was found guilty on both charges. This appeal followed.
II
DISCUSSION
Mr. Cole contends he was unreasonably seized in violation of the Fourth Amendment's protection against unreasonable searches and seizures. The State agrees Mr. Cole was seized, but argues the seizure was a limited detention authorized by RCW 46.64.015[1] for the issuance of traffic citations.
In 1979, the Legislature decriminalized most traffic offenses and created a list of minor offenses for which no arrest is authorized. RCW 46.63; Laws of 1979, 1st Ex. Sess., ch. 136. All traffic violations were decriminalized except for more serious offenses defined by RCW 46.64.015, RCW 10.31.100(3) and RCW 46.63.020. The Legislature authorized the *848 Supreme Court to promulgate procedural rules for the traffic violations specified in RCW 46.63.080(1). To that end, the Justice Court Traffic Infraction Rules (JTIR) were adopted in January 1981 to "secure the just, speedy, and inexpensive determination of every traffic case." JTIR 1.1(b).[2] Riding in a vehicle without wearing a safety belt became a traffic infraction in 1986. RCW 46.61.688.
Traffic infractions, as distinguished from misdemeanor traffic offenses, result in the issuance of a "notice of infraction".[3] This notice includes the name and address of the court where the notice is to be filed, the defendant's name and address, the alleged infraction, space for the defendant to sign a promise to respond to the notice of infraction, and space for the monetary penalty which may be paid by the defendant in lieu of appearing in court. JTIR 2.1(b). The police officer issuing the infraction notice must have "probable cause to believe" the person committed an infraction; however, the infraction need not have been committed in the officer's presence. JTIR 2.2(b)(1).
A person stopped for a traffic infraction may be detained only for the time reasonably necessary "to identify the person, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction". RCW 46.61.021(2). Vehicle passengers are not required to carry driver's licenses or other identification. State v. Barwick, 66 Wash. App. 706, 709, 833 P.2d 421 (1992). He need only "identify himself, give his current address, and sign an acknowledgement of receipt of the notice of infraction." RCW 46.61.021(3).
[1] Mr. Cole contends Trooper Slemp's decision to issue a notice of infraction for the safety belt violation was a pretext *849 to conduct a search or to harass him. See United States v. Franklin, 728 F.2d 994, 997 n. 5, 80 A.L.R. Fed. 385 (8th Cir.1984). Since the trooper did not actually observe Mr. Cole riding in the car without his safety belt, he questions whether Trooper Slemp had "probable cause to believe" the infraction had been committed. Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a cautious person's belief an offense has been committed. State v. Fricks, 91 Wash. 2d 391, 398, 588 P.2d 1328 (1979); State v. Gluck, 83 Wash. 2d 424, 426-27, 518 P.2d 703 (1974).
The provisions of RCW 46.61 refer to the operation of vehicles on highways. RCW 46.61.005. "Every person sixteen years of age or older operating or riding in a motor vehicle shall wear the safety belt assembly in a properly adjusted and securely fastened manner." RCW 46.61.688(3). Trooper Slemp admitted he did not observe whether Mr. Cole had been wearing his safety belt before the car stopped, and only noticed the belt was off when he reached Mr. Cole's window.
The court found that the lack of a fastened safety belt provided the trooper with a "well-founded suspicion, based on objective facts", that Mr. Cole had not been wearing the belt while traveling on the highway. Probable cause is a question of fact which is reviewed to determine whether there is substantial evidence to support the finding. Waid v. Department of Licensing, 43 Wash. App. 32, 35, 714 P.2d 681, review denied, 105 Wash. 2d 1015 (1986). Here, we need not pass upon the sufficiency of the evidence to support the court's finding since we rule that the officer's detention of Mr. Cole went beyond that authorized by RCW 46.61.021(2).
As noted, Mr. Cole was not required to carry a driver's license, vehicle registration or insurance identification. Barwick, at 709. A passenger stopped for an infraction need only identify himself, give his current address, and sign the notice of infraction. RCW 46.61.021(3). Mr. Cole did all of this.
*850 [2, 3] At the point Mr. Cole was told to step out of the car, the infraction investigation escalated to a Terry stop. But a Terry stop was not warranted by the nature of the investigation (a safety belt violation) or the officer's suspicions (he apparently had none). The pat-down search of Mr. Cole, moreover, would have been justified only if Trooper Slemp could have pointed to specific and articulable facts creating an objectively reasonable belief that a suspect is armed and presently dangerous. State v. Collins, 121 Wash. 2d 168, 173, 847 P.2d 919 (1993) (citing Terry v. Ohio, 392 U.S. 1, 21-24, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). Trooper Slemp expressed no concern Mr. Cole might be armed nor did he express concern for his safety for that matter. His only reason for detaining Mr. Cole was to confirm his identity; that is not sufficient grounds for the detention.
The scope of an investigatory stop is determined by considering (1) the purpose of the stop, (2) the amount of physical intrusion on the suspect's liberty, and (3) the length of time of the seizure. State v. Gonzales, 46 Wash. App. 388, 394, 731 P.2d 1101 (1986). Even assuming the original stop was justified, removing Mr. Cole from the car, frisking him and putting him under the control of another officer went beyond the intrusions necessary for a minor traffic infraction. See RCW 46.61.021(3).
[4] Because the seizure of Mr. Cole was unreasonable, evidence obtained as the result of the seizure must be suppressed. State v. Bonds, 98 Wash. 2d 1, 11, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). Accordingly, we reverse and dismiss.
THOMPSON, C.J., and MUNSON, J., concur.
Review denied at 125 Wash. 2d 1003 (1994).
NOTES
[1] The statute provides, in pertinent part:
"Whenever any person is arrested for any violation of the traffic laws or regulations which is punishable as a misdemeanor or by imposition of a fine, the arresting officer may serve upon him or her a traffic citation and notice to appear in court. Such citation and notice shall ... include spaces for the name and address of the person arrested, the license number of the vehicle involved, the driver's license number of such person, if any, the offense or violation charged, the time and place where such person shall appear in court, and a place where the person arrested may sign. Such spaces shall be filled with the appropriate information by the arresting officer. The arrested person, in order to secure release, and when permitted by the arresting officer, must give his or her written promise to appear in court as required by the citation and notice by signing in the appropriate place ... The detention arising from an arrest under this section may not be for a period of time longer than is reasonably necessary to issue and serve a citation and notice, except that the time limitation does not apply under any of the following circumstances:
"(1) Where the arrested person refuses to sign a written promise to appear in court as required by the citation and notice provisions of this section;
"(2) Where the arresting officer has probable cause to believe that the arrested person has committed any of the offenses enumerated in RCW 10.31.100(3), as now or hereafter amended;" (Italics ours.)
[2] JTIR was changed to Infraction Rules for Courts of Limited Jurisdiction (IRLJ) effective September 1, 1992, after the infraction which is the subject of this appeal. No substantive changes were made in the rules.
[3] State v. Barwick, 66 Wash. App. 706, 708, 833 P.2d 421 (1992) incorrectly states RCW 46.64.015 sets forth the procedure following an arrest for a traffic infraction. The procedure followed for an infraction is set forth in RCW 46.63 and the JTIR (now IRLJ). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366511/ | 617 S.E.2d 160 (2005)
274 Ga. App. 177
The KROGER COMPANY
v.
WILLIAMS.
No. A05A0486.
Court of Appeals of Georgia.
July 6, 2005.
*161 Douglas A. Wilde, Tara L. Moulds, Peachtree City, for appellant.
Deming, Parker, Hoffman, Green & Campbell, Michael D. Deming, Paul M. Hoffman, Norcross, for appellee.
BERNES, Judge.
Ruby Williams brought the instant action against The Kroger Company after she slipped and fell on a pole bean in the produce department of a Kroger grocery store located in Gwinnett County. Williams claimed that the torn rotator cuff she suffered as a result of her fall was caused by Kroger's failure to exercise ordinary care in keeping its premises safe for invitees. The trial court denied Kroger's motion for summary judgment, and we thereafter granted Kroger's application for discretionary review. We conclude that the undisputed evidence shows that Kroger had no actual or constructive knowledge of the hazard before Williams slipped and fell. Accordingly, we reverse.
In Robinson v. Kroger Co., 268 Ga. 735, 748-749(2)(b), 493 S.E.2d 403 (1997), the Supreme Court of Georgia held that recovery in a slip and fall action requires that "an invitee... prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to the actions or conditions within the control of the owner/occupier." See also Hardee's Food Systems v. Green, 232 Ga.App. 864, 865-866(1), 502 S.E.2d 738 (1998). Our review of the record evidence, which is de novo in this context,[1] leads us to conclude that, as a matter of law, Williams cannot meet the first prong of this test.
As an initial matter, Williams presented no evidence that any Kroger employee had actual knowledge of the bean on the floor before the incident. Indeed, Williams testified that before her fall, she saw no Kroger employees in the produce department. Moreover, when asked whether she had "any reason to think that anybody at the *162 store knew that the green bean was on the floor," Williams answered, "Oh, no." Thus, Williams' personal injury claim can survive summary judgment only if there is some evidence in the record indicating that Kroger had constructive knowledge of the bean on the floor prior to her fall.
Constructive knowledge may be shown in two ways: by showing that an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall; or by showing that the substance had been on the floor for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises. Wentworth v. Eckerd Corp., 248 Ga.App. 94, 95, 545 S.E.2d 647 (2001); Roberson v. Winn-Dixie Atlanta, 247 Ga.App. 825, 544 S.E.2d 494 (2001).
Bolton v. Wal-Mart Stores, 257 Ga.App. 198, 570 S.E.2d 643 (2002). In the present case, Williams failed to come forward with any evidence to show Kroger had constructive knowledge in either of the two ways set forth in cases like Bolton.
First, there is an absence of evidence showing that any Kroger employees were "in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall." Bolton v. Wal-Mart Stores, supra. Evidence that an employee was present in the area of the hazard is not sufficient, standing alone, to raise a jury question as to the proprietor's constructive knowledge of the hazard. Rather, to prevent summary judgment, "[i]t must be shown that the employee was in a position to have easily seen the substance and removed it." (Citations omitted.) Id.
Williams admitted that she did not know how long the bean had been on the floor before she fell. Furthermore, as pointed out above, she did not see any Kroger employees in the produce department prior to her fall and had no reason to believe that any employee knew that the bean was on the floor. Additionally, Terry Smith, a Kroger produce manager who was the only employee on duty in the produce department on the morning of the incident, testified that only five minutes before Williams' fall he walked through the produce department area where the fall occurred. As he did so, he looked on the floor to make sure it was clean. Smith saw no bean on the floor. Smith then proceeded to the produce preparation area, where there was a wall in place that prevented him from seeing the floor area where Williams fell only a few minutes later. Based on Williams' own testimony as well as Smith's unrebutted testimony, it is clear that Williams cannot establish that a Kroger employee was in a position to have easily seen and removed the bean before she slipped and fell. Bolton v. Wal-Mart Stores, supra.
Second, there is an absence of evidence showing that the pole bean "had been on the floor for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises." Bolton v. Wal-Mart Stores, supra. While Williams argues that there is a factual dispute over whether Smith's examination of the produce area before her fall constituted a "real inspection" or simply an informal "walk through," that issue need not be resolved in this case. As previously noted, Smith testified that five minutes before the fall, he looked at the floor where the fall later occurred and saw no pole bean. Smith's testimony went unrebutted. Thus, the only conclusion supported by record evidence is that there was no bean on the floor five minutes before Williams fell.[2] Given the short amount of time the bean was actually on the floor, Williams, as a matter of law, cannot show that even if "Kroger employees... [had] exercised reasonable care in inspecting *163 and cleaning the premises," they would have discovered the bean on the floor before her fall. Lovins v. Kroger Co., 236 Ga.App. 585, 587(1)(b)(ii), 512 S.E.2d 2 (1999) (proprietor lacked constructive knowledge when employee viewed area where fall occurred ten minutes before it happened and saw no hazards). See also Matthews v. The Varsity, 248 Ga.App. 512, 514(2), 546 S.E.2d 878 (2001) (no constructive knowledge when employee viewed stairs five minutes before fall and saw no liquids or other hazards); Mazur v. Food Giant, 183 Ga.App. 453, 359 S.E.2d 178 (1987) (undisputed testimony of store employee and manager that they "both walked past [a] display case only ten to fifteen minutes prior to plaintiff's fall and saw no foreign matter on the floor" showed lack of constructive knowledge).
For these reasons, we conclude that there is an absence of any evidence in the record showing that Kroger had actual or constructive knowledge of the hazard in this case. Therefore, the trial court erred in denying Kroger's motion for summary judgment.
Judgment reversed.
BLACKBURN, P.J., and MILLER, J., concur.
NOTES
[1] "On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citations omitted.) Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 717-718(4), 545 S.E.2d 875 (2001).
[2] Williams latches on to the fact that during Smith's deposition, Smith was asked generally whether it was "possible that [he] could have missed something on the floor on that particular day," and Smith answered by agreeing that it was at least "possible." However, Williams cannot avoid summary judgment based merely on Smith's general speculation in this regard, particularly in light of his specific, unequivocal testimony that he viewed the area where the fall occurred and saw no bean five minutes before the fall. "A mere possibility ... is not enough"; a plaintiff cannot rely on "pure speculation or conjecture" and expect to survive summary judgment. Mitchell v. Austin, 261 Ga.App. 585, 587, 583 S.E.2d 249 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366508/ | 617 S.E.2d 664 (2005)
PHELPS-DICKSON BUILDERS, L.L.C., Plaintiff
v.
AMERIMANN PARTNERS, Amerimann Partners IV, L.L.C., Amerimann Homes, L.L.C., Sterling Properties, L.L.C. f/k/a Malpaso Realty, L.L.C., and Ron Mikesh, Defendants.
No. COA04-520.
Court of Appeals of North Carolina.
August 16, 2005.
Hopper Law Firm, by Kevin P. Hopper, Raleigh, for plaintiff-appellant.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Ronald C. Dilthey and Kathrine E. Downing, Raleigh, for defendant-appellees Amerimann Partners, Amerimann Partners IV, L.L.C., and Amerimann Homes, L.L.C.
Brown, Crump, Vanore, & Tierney, L.L.P., by W. John Cathcart and Michael W. Washburn, Raleigh, for defendant-appellees Sterling Properties, L.L.C. f/k/a Malpaso Realty, L.L.C. and Ron Mikesh.
*666 CALABRIA, Judge.
Phelps-Dickson Builders ("plaintiff") is a North Carolina residential construction company. In an effort to gain exposure in north Raleigh, plaintiff talked to several developers in that area to discuss becoming part of their building team, including Amerimann Partners, the developer of the La Ventana subdivision, and was able to start construction on a house in that subdivision. Amerimann Partners was also developing two subdivisions named Savannah and Savannah Village at Wakefield Plantation (collectively "Savannah"), a theme community with eight pre-selected house plans for high-end, custom, Charleston-style homes.
Ron Mikesh ("Mikesh") of Sterling Properties,[1] the sales agent in La Ventana representing Amerimann Partners, also assisted Amerimann Partners in the development of Savannah. After plaintiff's involvement in La Ventana, Mikesh approached plaintiff with the prospect of becoming a builder in Savannah in early June 1999. During ensuing meetings between Mikesh and Brad Phelps, an ownership partner of plaintiff, plaintiff alleges Mikesh represented, inter alia, (1) Greenbriar, a current exclusive builder in Savannah at that time, "could not build its presale homes fast enough"; (2) "presale customers were lined up and waiting to meet" with exclusive builders in Savannah; (3) there were currently seven presales and additional "strong, solid contacts" in Savannah; (4) plaintiff would be one of two exclusive builders permitted to build in Savannah and there would be no competitive bidding; and (5) "the 63 lots in [Savannah] would be divided between the exclusive builders." Mikesh also noted there would be extensive landscaping, mass advertising, and publication articles in magazines. In order to become an exclusive builder with Greenbriar in Savannah, plaintiff was required to purchase four lots, two of which were available for presale opportunities and two of which plaintiff was required to build a model house according to specifications provided by Amerimann. Many of these understandings on the part of plaintiff were set out in a faxed letter to Mikesh, which included the main points of their discussion at a 15 June 1999 meeting, and was sent approximately two days after the meeting.
On 8 October 1999, plaintiff and Amerimann entered into four contracts for the sale of four lots located in Savannah. None of the contracts included Mikesh's oral representations to plaintiff. However, the contract *667 did contain a merger clause, which provided as follows: "This instrument (together with any Exhibits attached) constitutes the entire agreement between parties, and supersedes any and all prior agreements and understandings, whether oral or written, between the parties."
Plaintiff started construction of the two model homes, and shortly thereafter, problems arose between the parties. In October 1999, Amerimann brought a third builder into Savannah, who began construction of a house on one of the lots that had been allocated to plaintiff. Plaintiff said in his deposition that the construction activities of this third builder had the dual effect of decreasing plaintiff's potential presales and saturating the market. Despite Mikesh's representations concerning consumer interest in Savannah, presale opportunities were nonexistent, and plaintiff did not meet with any potential clients. Other disputes arose as well. For example, when Greenbriar started experiencing financial difficulties and was unable to build one of its presales, Amerimann created Amerimann Homes, L.L.C. to build the home for the client and, ultimately, brought in another builder to finish the house. In addition, only three presale contracts existed at the time Mikesh represented there were seven. Moreover, when Mikesh did approach plaintiff concerning a possible presale client for a lot assigned to plaintiff and the houseplan associated with that lot, the presale client ultimately declined plaintiff's bid when Amerimann and Mikesh allowed the desired houseplan to be "reallocated" to another lot for another builder with a lower bid to construct.
Tensions escalated between the parties, and on 12 July 2000, plaintiff met with Amerimann to discuss the issues that had arisen. When the parties could not reach a resolution, plaintiff sought legal assistance and demanded that Amerimann repurchase the two undeveloped lots and purchase the homes plaintiff built on the other two lots. Amerimann responded with an offer to purchase only the two undeveloped lots. Plaintiff threatened to permit foreclosure proceedings, which would eliminate Amerimann's second mortgage on plaintiff's lots. Plaintiff failed to make the required payments for the lots with the intention of purchasing the lots after the bank foreclosed on them and sold them at the foreclosure sale. In order to prevent this action, Amerimann repurchased the two unimproved lots but not the two houses constructed by plaintiff in Savannah, which were foreclosed on by the bank. Plaintiff's partner purchased the two houses at the foreclosure sale and sold them back to plaintiff. Amerimann asked for a written release for all claims upon repurchasing the two unimproved lots, but plaintiff refused. Despite the fact that Amerimann was aware that plaintiff refused to sign a global settlement agreement, Amerimann proceeded with the closing to repurchase the two lots.
On 5 September 2002, plaintiff filed suit against Mikesh, Sterling Properties, and the Amerimann defendants alleging breach of contract against the Amerimann defendants and material misrepresentation and unfair and deceptive trade practices against all defendants. Defendants moved to dismiss and answered the complaint. Amerimann counterclaimed for unfair and deceptive trade practices based on the friendly foreclosure on the two houses in Savannah. On 3 July 2003, the Sterling defendants moved to amend their answer to include the defenses of estoppel, laches, payment, release, and settlement. All defendants moved for summary judgment. Plaintiff filed a motion to compel or review in camera certain documents which the Amerimann defendants claimed were protected by the attorney-client privilege. In addition, plaintiff filed a motion to compel further discovery responses by Mikesh and Sterling Properties (the "Sterling defendants").
On 7 October 2003, the trial court (1) allowed the Sterling defendants' motion to amend; however, no amended answer was ever filed; (2) denied plaintiff's motion to compel or review in camera certain documents held by the Amerimann defendants on the grounds that such documents were protected by the attorney-client privilege and were attorney work product; and (3) denied plaintiff's motions to compel discovery responses from Sterling Properties and Mikesh but required those parties to make available all discoverable documents for review and *668 comparison to that which had been produced in discovery with the caveat that such review had to occur not later than 5:00 p.m. on 8 October 2003. On 10 October 2003, the trial court heard defendants' motions for summary judgment and granted summary judgment in orders entered 25 and 26 November 2003. Plaintiff moved the court to make findings of fact and conclusions of law, which the trial court denied. In that order, the trial court found that plaintiff's motions were "not well grounded in fact, not warranted by existing law or a good faith argument . . . [and] were interposed for an improper purpose. . ." Accordingly, the trial court imposed monetary sanctions of $550.00 in favor of defendants for "the legal fees generated in defense of the motion." Plaintiff appeals.
I. Motion to compel
Plaintiff contends the trial court erred in denying his motion to compel discovery. We disagree. General provisions governing discovery are set forth in N.C. Gen. Stat. § 1A-1, Rule 26 (2003). Discovery methods include, inter alia, depositions, interrogatories, and production of or permission to inspect documents. N.C. Gen.Stat. § 1A-1, Rule 26(a). Regarding the scope and limits of discovery, our Legislature has provided, in pertinent part, as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .
The frequency or extent of use of the discovery methods set forth in section (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or. . . (iii) the discovery is unduly burdensome or expensive . . .
N.C. Gen.Stat. § 1A-1, Rule 26(b)(1). "Whether or not the party's motion to compel discovery should be granted or denied is within the trial court's sound discretion and will not be reversed absent an abuse of discretion." Wagoner v. Elkin City Schools' Bd. of Education, 113 N.C.App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994).
Plaintiff's second and third motions to compel were directed towards Mikesh and Sterling Properties, respectively.[2] The trial court read and reviewed the materials offered, including the responses to plaintiff's discovery requests, and heard arguments. In two orders dated 7 October 2003, the trial court denied plaintiff's motions to compel but permitted plaintiff to review all discoverable documents not later than 5:00 p.m. the following day. Plaintiff first argues the trial court's actions in limiting its discovery in this manner were tantamount to the impositions of sanctions. Nothing in the record or in the trial court's order indicates an intent to impose sanctions on plaintiff concerning the motions to compel, and this argument is summarily rejected.
Plaintiff next asserts that there are several key issues in this matter in support of [plaintiff's] allegations[,] [that plaintiff was seeking] to identify all information [the Sterling defendants] asserted constituted the basis for their affirmative defenses [contained in their motion to amend their answer, that] the information sought by Plaintiff was timely and relevant to the Motion for Summary Judgment[,] [and that] no documents had been produced and . . . the responses to the interrogatories [were] not good faith answers[.]
First, the existence of "key issues" does not necessarily entitle plaintiff to further discovery responses, standing alone. Second, plaintiff's desire to identify information regarding the affirmative defenses to be asserted in an amended answer to plaintiff's complaint is irrelevant in light of the fact that defendants never, in fact, amended their complaint to include these affirmative defenses, and such defenses could not have been the basis upon which the trial court predicated its summary judgment order. Third, plaintiff's unsupported assertions, (1) that the information sought was timely and relevant and (2) that the received responses to discovery *669 requests were insufficient, merely state plaintiff's conclusory opinion. Without more, plaintiff has failed to show an abuse of discretion on the part of the trial judge.
Plaintiff additionally argues the trial court erred in denying the motion but allowing inspection of the relevant documents for only a twenty-four hour period two days before the hearing on defendants' summary judgment motion. While denying the motion and allowing the inspection may appear, on the surface, to be contradictory, we have found no abuse of discretion on the part of the trial court in denying plaintiff's motion to compel, and plaintiff cannot be heard to complain that it was, nonetheless, granted one of the expressly denominated means of discovery under Rule 26. Moreover, regarding the twenty-four hour time period permitted by the trial court, plaintiff has presented no argument as to why that amount of time was insufficient to conduct the review; accordingly, plaintiff has failed to show the trial court abused its discretion.
Plaintiff's related argument, that the trial court erred in granting summary judgment on the grounds that "the time period [for plaintiff] to respond to the Amended [answer] had not expired[,]" is without merit because, as we held supra, no amended answer was filed, and the additional affirmative defenses could not have formed the basis upon which the trial court predicated its summary judgment orders.
II. Summary Judgment
Plaintiff asserts the trial court erred in granting summary judgment on his claims in favor of defendants. Summary judgment is a "somewhat drastic remedy," see Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971), appropriate only where, viewing the evidence in the light most favorable to the non-moving party, "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Citifinancial, Inc. v. Messer, 167 N.C.App. 742, 744, 606 S.E.2d 453, 455 (2005) (quoting N.C. Gen.Stat. § 1A-1, Rule 56(c) (2003)).
In dealing with the issue of whether the trial court properly granted summary judgment, we must first address and determine the issue of whether there was an agency relationship between the Amerimann defendants and the Sterling defendants. An agent is one who, with another's authority, undertakes the transaction of some business or the management of some affairs on behalf of such other, and to render an account of it. SNML Corp. v. Bank, 41 N.C.App. 28, 36, 254 S.E.2d 274, 279 (1979). "There are two essential ingredients in the principal-agent relationship: (1) Authority, either express or implied, of the agent to act for the principal, and (2) the principal's control over the agent." Vaughn v. Dep't of Human Resources, 37 N.C.App. 86, 91, 245 S.E.2d 892, 895 (1978). Where the principal held the agent out as possessing authority or permitted the agent to represent that he possessed authority, it is said that the agent was clothed with apparent authority, and the principal may be held liable if a third person, in the exercise of reasonable care, justifiably believed the principal had conferred such authority on the agent. Zimmerman v. Hogg & Allen, Professional Assoc., 286 N.C. 24, 31, 209 S.E.2d 795, 799 (1974).
In the instant case, the evidence of record indicates that, besides being a listing agent in Savannah, Mikesh (1) was involved in development, sales, and closing issues in Savannah, as well as infrastructure issues such as sewer lines and easements; (2) was considered to be a member of Amerimann's staff; (3) supervised the daily activities of the subcontractors in Savannah and received direct remuneration from Amerimann for such services; and (4) signed certain documents, including construction agreements for residential housing, on behalf of Amerimann Homes. Indeed, Rocky Manning, the President of Amerimann, deposed he "delegated the majority of the responsibilities" in the construction of a home for Amerimann Homes. Given the sweeping powers exercised by Mikesh with Amerimann's knowledge and consent, we hold that there remains a genuine issue of material fact as to the existence of an agency relationship and, for purposes of this appeal, assume such existence for determination of the issues presented.
*670 A. Breach of Contract
Regarding plaintiff's breach of contract claim against Amerimann, plaintiff asserts that the "complete agreement with [Amerimann]" consists not only of the written agreement containing the merger clause but also the oral representations by Mikesh. "The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of [the] contract." Poor v. Hill, 138 N.C.App. 19, 26, 530 S.E.2d 838, 843 (2000). Plaintiff's assertions, that the duties as contemplated by the express provisions of the contract do not fully encompass the obligations of the parties, rely on parol evidence. "The parol evidence rule excludes prior or contemporaneous oral agreements which are inconsistent with a written contract if the written contract contains the complete agreement of the parties." Cable TV, Inc. v. Theatre Supply Co., 62 N.C.App. 61, 64-65, 302 S.E.2d 458, 460 (1983) (applying the parol evidence rule where the written contract included a merger clause similar to the one in the instant case). We hold the contract contains the complete agreement of the parties, and plaintiff's attempt to enlarge or vary Amerimann's duties from those expressly undertaken in the contract is barred by the written terms of the contract and the merger clause, which provides that "all prior agreements and understandings, whether oral or written, between the parties" are superseded. Accordingly, the merger clause bars the parol evidence concerning an oral contract upon which plaintiff premises his breach of contract claim.
Plaintiff argues, in the alternative, that the merger clause should not be given effect. Plaintiff, citing Zinn v. Walker, 87 N.C.App. 325, 334, 361 S.E.2d 314, 319 (1987), asserts that "giving effect to the merger clause would frustrate and distort the parties' true intentions and understanding regarding the contract." The contracts in the instant case were for the sale of four lots located in Savannah, and the provisions in that contract fully carry out that intent. Plaintiff's unilateral expectations with respect to the contracts' terms do not indicate that the purpose of the contracts has been frustrated. Rather, plaintiff desires to add certain obligations and duties to those to which Amerimann expressly agreed. Giving effect to the merger clause, under these facts, neither frustrates nor distorts the parties' true intentions regarding the contractual sale of the lots. Accordingly, this assignment of error is overruled, and the trial court properly entered summary judgment in favor of Amerimann on plaintiff's breach of contract claim.
B. Fraud
To preclude "crafty men [from] find[ing] a way of committing fraud which avoids the definition[,]" our appellate courts have abstained from defining fraud in favor of setting forth the following essential elements: "(1) False representation or concealment of a [past or existing] material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974).[3] Defendant first asserts summary judgment was appropriate because plaintiff did not sufficiently plead fraud in his complaint. Specifically, defendant contends plaintiff did not sufficiently allege that defendants made any alleged misrepresentations with knowledge of their falsity. While knowledge and intent must be alleged in the complaint, our Supreme Court has noted that it is sufficient if fraudulent intent may reasonably be inferred, presumed, or necessarily results from the facts alleged. See Cotton Mills v. Manufacturing, 218 N.C. 560, 562, 11 S.E.2d 550, 551 (1940). Such is the case where, as here, plaintiff alleged that only three homes were sold at the time Mikesh represented seven homes had been sold. In addition, plaintiff alleged Mikesh misrepresented, inter alia, *671 that additional exclusive builders were needed because the current builder could not build homes fast enough and customers were "lined up and waiting to meet" plaintiff.
Defendant also argues the trial court's summary judgment on plaintiff's claim of fraud must be upheld on the grounds that there was no misrepresentation regarding a past or existing material fact. Defendant's argument is manifestly in error with respect to Mikesh's representation as to the actual number of sales which had already occurred in Savannah. Mikesh's representations as to the current demand in Savannah likewise survive summary judgment under our Supreme Court's holding in Ragsdale, 286 N.C. at 138-139, 209 S.E.2d at 500-501 (disallowing summary judgment in favor of a president of a corporation who had peculiar knowledge of the facts and knew that the business had lost money, yet made positive representations that the corporation was a "gold mine" and a "going concern" on the grounds that it was a jury question as to whether such representations were intended and received as expressions of opinion or statements of material fact).
Defendants next argue that summary judgment was appropriate because plaintiff "had [and availed itself of] the opportunity to independently investigate the viability of the Savannah project." Defendants cite Hudson-Cole Dev. Corp. v. Beemer, 132 N.C.App. 341, 346, 511 S.E.2d 309, 313 (1999) for the proposition that where one relies on a "misleading representation, [but] could have discovered the truth upon inquiry, the complaint must allege that he was denied the opportunity to investigate or that he could not have learned the true facts by exercise of reasonable diligence."
"Even if there is no duty to disclose information, if a seller does speak then he must make a full and fair disclosure of the matters he discloses." Freese v. Smith, 110 N.C.App. 28, 35, 428 S.E.2d 841, 846 (1993). In replying to claims that a false representation was not justifiably or reasonably relied upon, our Supreme Court has stated that "[t]he law does not require a prudent man to deal with everyone as a rascal and demand covenants to guard against the falsehood of every representation which may be made as to facts which constitute material inducements to a contract[.]" Johnson v. Owens, 263 N.C. 754, 758, 140 S.E.2d 311, 314 (1965) (citations and quotation marks omitted). Our Supreme Court further elaborated that reliance may be unreasonable, but, in close cases, sellers intentionally and falsely representing material facts so as to induce a party to action "should not be permitted to say in effect, `You ought not to have trusted me. If you had not been so gullible, ignorant, or negligent, I could not have deceived you.'" Id. In another case, our Supreme Court examined a defendant's demurrer on the grounds that the plaintiffs "could have ascertained by an accurate survey of the lines and boundaries of the land whether [certain land with timber] was included" and determined that "the defendants cannot complain if the plaintiffs relied upon the defendants' positive representation . . . that the timber on this parcel of land was a part of that being sold." Keith v. Wilder, 241 N.C. 672, 676, 86 S.E.2d 444, 447 (1955).
Based on the precedent laid down by our Supreme Court, we hold plaintiff's fraud claim is not barred on the grounds that plaintiff had some lesser opportunity to investigate the various representations made by Mikesh, who possessed superior knowledge on such matters. Indeed, certain representations by Mikesh could not be readily or easily verified. Moreover, we hold, in light of the scope and nature of Mikesh's positive assertions and our standard of review, that defendants are not entitled, as a matter of law, to summary judgment on plaintiff's claim of fraud.
C. Unfair and Deceptive Trade Practices
The elements for a claim for unfair and deceptive trade practices are (1) defendants committed an unfair or deceptive act or practice, (2) in or affecting commerce and (3) plaintiff was injured as a result. Edwards v. West, 128 N.C.App. 570, 574, 495 S.E.2d 920, 923 (1998). Concerning trade practices, unfair denotes a practice that "is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers[,]" and deceptive denotes a practice that "has the capacity or tendency to deceive." Id. (internal citations and quotation marks omitted). *672 Whether facts that are proven establish an unfair or deceptive trade practice is a question of law addressed by the court. Id., 128 N.C.App. at 574, 495 S.E.2d at 923-924. Given our discussion supra and taking the evidence in the light most favorable to the non-moving party, plaintiff's unfair and deceptive trade practice claim is sufficient to survive summary judgment.
D. Settlement
Defendants alternatively assert that plaintiff's claims are susceptible to summary judgment because the parties fully settled all claims when Amerimann purchased the two undeveloped lots from plaintiff. Defendants point out that Phelps testified he procured an attorney to negotiate a pullout from Savannah and those negotiations resulted in the agreement to buy back the two undeveloped lots. Defendants further correctly point out that they responded to plaintiff's demand that they repurchase all four lots, including the two constructed houses with the offer to purchase only the two lots. Nonetheless, the evidence of record does not support the conclusion that summary judgment was appropriate on the basis of any global settlement of plaintiff's claims.
First, as noted above, at the time of closing on the two undeveloped lots, defendants unsuccessfully sought a written settlement agreement yet proceeded with the closings on the two lots regardless of having failed to procure such a settlement. Second, a letter from Amerimann's attorney regarding the repurchase of the two lots stated that "the primary reason for purchasing those two lots was to protect [Amerimann's] purchase money second deeds of trust . . . in the amount of $40,000.00 [on each lot] from being extinguished by friendly foreclosures and losing that amount of principal." That letter goes on to also note plaintiff's refusal to sign a written release and Amerimann's decision to "ultimately proceed[ ] with buying [the two undeveloped lots] to protect [its] equity in those two lots." Third, plaintiff unequivocally testified in his deposition that, at no time, did plaintiff consider the repurchase of the undeveloped lots to be a settlement of all claims. At the very least, these facts present a genuine issue concerning settlement, and summary judgment cannot be premised upon this ground.
III. Sanctions
Plaintiff asserts the trial court erred in imposing, sua sponte, sanctions in response to plaintiff's motion to amend the summary judgment order to include findings of fact and conclusions of law. The imposition of sanctions by the trial court under N.C. Gen.Stat. § 1A-1, Rule 11 (2003) is reviewed de novo. Williams v. Hinton, 127 N.C.App. 421, 423, 490 S.E.2d 239, 240 (1997). Plaintiff points out that this Court has conceded that "in rare situations it can be helpful for the trial court to set out the undisputed facts which form the basis for his judgment." Capps v. City of Raleigh, 35 N.C.App. 290, 292, 241 S.E.2d 527, 529 (1978). However, our long-standing rule has been, and remains, that findings of fact are superfluous in summary judgment orders. We are unpersuaded that this is one of those rare cases which warrants findings concerning the undisputed facts or conclusions of law by the trial court and uphold the sanctions imposed.
Affirmed in part, reversed in part and remanded.
Judges HUNTER and JACKSON concur.
NOTES
[1] For purposes of this appeal, both Malpaso Realty and Sterling Properties will be referred to as Sterling Properties, the current name for the realty business involved in this appeal.
[2] Plaintiff's first motion to compel, directed towards Amerimann and concerning documents produced by Amerimann's attorneys, was denied by the trial court on the grounds that such documents were both privileged and attorney work product. Plaintiff's argument has not challenged this denial on appeal.
[3] Unlike in plaintiff's breach of contract claim, where "`[t]he parol evidence rule presupposes the existence of a legally effective written instrument,'" MacKay v. McIntosh, 270 N.C. 69, 73, 153 S.E.2d 800, 803-04 (1967), and precludes use of parol evidence to vary or contradict the terms of that instrument, the parol evidence rule does not bar the admission of parol evidence "to prove that a written contract was procured by fraud because `the allegations of fraud challenge the validity of the contract itself, not the accuracy of its terms[.]'" Godfrey v. Res-Care, Inc., 165 N.C.App. 68, 78, 598 S.E.2d 396, 403 (2004) (quoting Fox v. Southern Appliances, 264 N.C. 267, 270, 141 S.E.2d 522, 525 (1965)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366510/ | 617 S.E.2d 675 (2005)
STATE of North Carolina
v.
Arthur Williams VERRIER.
No. COA04-601.
Court of Appeals of North Carolina.
September 6, 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm Mau, for the State.
M. Alexander Charns, Durham, for defendant-appellant.
*676 TIMMONS-GOODSON, Judge.
Arthur Williams Verrier ("defendant") appeals his convictions for taking indecent liberties *677 with a child, obtaining habitual felon status, three counts of third-degree sexual exploitation of a minor, and failure to register as a sex offender. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
The State's evidence presented at trial tends to show the following: In September and October of 2002, defendant lived with his niece, Lisa,[2] and her daughter, Kim,[3] in Winston-Salem, North Carolina. Kim was in the first grade, and she ordinarily went to the home of her grandmother, Karen,[4] for after-school care while Lisa was at work. Defendant babysat Kim approximately three nights when Lisa had to work in the evening. Defendant also spent time at Karen's residence, which was located on the same street as Lisa's residence.
On or about 2 October 2002, Karen awoke in the middle of the night and saw defendant viewing something on the computer. The following day, Karen found pictures on the computer. Karen brought the pictures to Lisa's attention. Lisa and Karen then engaged in a conversation with Kim, during which Kim told Lisa and Karen that she and defendant "play[ed] the tickle game." Kim demonstrated the game as starting with tickling her leg and continuing with tickling her vaginal area. At that time, Lisa and Karen called the police.
Corporal S.E. Spencer ("Corporal Spencer") of the Winston-Salem Police Department responded to the call. Corporal Spencer interviewed Kim, and he recalled the following pertinent details of the interview:
I asked [Kim] if [defendant] had ever touched her and she said yes, he had touched her on her private parts. When she made that statement, [Kim] reached, as she started making the statement, almost immediately reached down and touched with an open hand over her groin area directly above her vagina and said that he had touched her private parts.
Kim's case was assigned to Juvenile Detective Natashia James ("Detective James"). Detective James interviewed Kim, and she answered Detective James's questions consistent with her statements to Lisa, Karen, and Corporal Spencer.
Defendant was subsequently arrested, and, on 6 January 2003, indicted for taking indecent liberties with Kim. On 24 March 2003, defendant was indicted for failure to register as a sex offender. On 2 June 2003, defendant was indicted for obtaining habitual felon status. On 20 October 2003, defendant was indicted for three counts of third-degree sexual exploitation of a minor.
Defendant was tried for the indecent liberties charge on 20 October 2003. At trial, the State presented evidence from Kim, Corporal Spencer, Karen, Lisa, and Detective James. Defendant presented no evidence. On 21 October 2003, the jury found defendant guilty of taking indecent liberties with Kim. Defendant subsequently pled guilty to the charges of failing to register as a sex offender, obtaining habitual felon status, and three counts of third-degree sexual exploitation of a minor. The trial court thereafter found as an aggravating factor to the taking of indecent liberties offense that defendant took advantage of a position of trust or confidence to commit the offense, and the trial court sentenced defendant to a total of 120 to 153 months imprisonment. Defendant appeals.
The issues on appeal are whether the trial court erred by: (I) denying defendant's motion to dismiss the charge of taking indecent liberties with a child; (II) allowing prosecution witnesses to render prejudicial testimony; (III) failing to grant a mistrial; and (IV) failing to record jury selection, bench conferences, and the attorneys' opening and closing arguments.
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of taking indecent liberties with a child. Defendant asserts that the State *678 failed to demonstrate that defendant acted for the purpose of arousing or gratifying sexual desire. We disagree.
In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The standard of review for a motion to dismiss based on insufficiency of the evidence is "the substantial evidence test." State v. Jones, 110 N.C.App. 169, 177, 429 S.E.2d 597, 602 (1993), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). Substantial evidence is defined as the amount of "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
N.C. Gen.Stat. § 14-202.1(a)(1) (2003) provides the elements of taking indecent liberties with a child as follows:
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he . . . [w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]
"With regard to evidence that the touching by [the] defendant was for the purpose of arousal or sexual gratification, this Court has held that a defendant's purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference." State v. Rogers, 109 N.C.App. 491, 505, 428 S.E.2d 220, 228 (citation and quotation marks omitted), cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993). This element "may be inferred from the evidence of the defendant's actions." State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, 580 (1987).
In Rogers, where the evidence tended to show that the defendant touched the chest and vaginal area of a five-year-old child while alone in a bathroom, we held that sufficient evidence existed "to permit the jury to infer that [the] defendant's purpose in doing so was to arouse himself or to gratify his sexual desire." 109 N.C.App. at 505-06, 428 S.E.2d at 229. In the instant case, Kim testified on direct examination that defendant "tickle[d]" her "[t]wo or three" times in her "private[,]" and that it felt "[b]ad." Kim testified that defendant tickled her "[m]aybe [in] the living room[,]" and that as he was tickling her leg, defendant would "start going up . . . . [t]o [her] private." We conclude that this evidence, when viewed in the light most favorable to the State, tends to show that defendant touched Kim inappropriately in her "private" area, under the pretext of tickling her. Thus, because the State presented sufficient evidence tending to show that defendant acted for the purpose of arousing or gratifying sexual desire, there was substantial evidence of indecent liberties with a child. Accordingly, we conclude that the trial court did not err by denying defendant's motion to dismiss the charge of taking indecent liberties with Kim.
Defendant next argues that the trial court erred by allowing the introduction of prejudicial evidence and by not inquiring as to whether the jurors were influenced by an inquiry made to them outside the courtroom. We note initially that, "[i]n criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R.App. P. 10(c)(4) (2005). In the instant case, defendant asserts in his brief that the trial court committed plain error by allowing Karen to describe the images she saw on the computer. Defendant also asserts that his trial was prejudiced by an inquiry of four jurors "about the location of a court case for a sexual assault case by a family member." However, defendant "provides no explanation, analysis or specific contention in his brief supporting the bare assertion that the claimed error is so fundamental that justice could not have been done[,]" State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001), or that "absent the error, the jury probably would have reached a different verdict[.]" State v. King, 342 N.C. 357, 365, 464 S.E.2d 288, 293 (1995). *679 "The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention" that the trial court's actions amounted to plain error as required by N.C.R.App. P. 28(a) and (b)(6). Cummings, 352 N.C. at 636, 536 S.E.2d at 61.
To hold otherwise would negate those requirements, as well as those in Rule 10(b)(2). [A] defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule. By simply relying on the use of the words "plain error" as the extent of his argument in support of plain error, [the] defendant has effectively failed to argue plain error and has thereby waived appellate review.
Id. at 636-37, 536 S.E.2d at 61 (citations omitted). Accordingly, after reviewing the record in the instant case, we conclude that defendant has waived any right to pursue these arguments on appeal.
Defendant next argues that the trial court erred by failing to declare a mistrial based upon (i) Karen's testimony about defendant's prior conviction, (ii) the failure to sequester witnesses, and (iii) the contact between members of the jury and a member of Kim's family. Although defendant did not move for a mistrial upon such grounds at trial, on appeal, he asserts that it was plain error for the trial court not to grant a mistrial on its own motion. However, our appellate courts have applied plain error review only to those questions involving jury instructions or the admissibility of evidence. See State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987). Plain error review does not apply to decisions made at the trial judge's discretion. See State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). In the instant case, defendant fails to cite any authority supporting his argument that this Court should review under plain error the trial court's failure to exercise its discretion ex mero motu on the question of a mistrial. Accordingly, we deem this argument abandoned.
Defendant next argues that his rights to due process and effective assistance of appellate counsel were violated by the failure of his trial counsel to request that the trial court record jury selection, bench conferences, and the attorneys' opening and closing arguments at trial. We cannot agree.
N.C. Gen.Stat. § 15A-1241(a) and (b) (2003) provide for the recordation of trial proceedings as follows:
(a) The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:
(1) Selection of the jury in non capital cases;
(2) Opening statements and final arguments of counsel to the jury; and
(3) Arguments of counsel on questions of law.
(b) Upon motion of any party or on the judge's own motion, proceedings excepted under subdivisions (1) and (2) of subsection (a) must be recorded.
(emphasis added).
In State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992), the defendant argued that § 15A-1241 applied to off-the-record bench conferences. Our Supreme Court declined to expand the statute to include bench conferences, concluding that
the enactment of this statute by the legislature in 1977 was [not] intended to change the time-honored practice of off-the-record bench conferences between trial judges and attorneys. If the legislature had intended to make such a radical change in trial procedure, we feel confident it would have done so explicitly.
Id. at 498, 422 S.E.2d at 698.
In the instant case, there is no evidence in the record that defendant made a motion for the jury selection, bench conferences, and opening and closing statements to be recorded. Defendant's brief contains the following contention:
Defendant requests a modification or change of law to provide a per se rule granting a new trial where counsel neither requests nor the trial court requires that the entire trial, jury selection, arguments of counsel and bench conferences are recorded. *680 The lack of a transcript for portions of his trial denied [defendant] the complete assistance of appellate counsel and consequently, deprived him of the most complete appellate review by this Court.
We recognize that appellate counsel may be at a disadvantage when preparing an appeal for a case in which he did not participate at the trial level, as appellate counsel is somewhat bound by the decisions and strategies of trial counsel. However, this Court cannot grant defendant the relief he seeks on this issue. It is outside the realm of this Court's function as the judiciary to modify statutory law. That role is reserved for the legislature. Accordingly, this argument is overruled.
In two motions for appropriate relief filed with his appeal, defendant challenges the constitutionality of the sex offender registration statute as applied to him as well as the trial court's decision to sentence him in the aggravated range.[5] Defendant first asserts that N.C. Gen.Stat. § 14-208.11, which imposes a criminal penalty upon those individuals who have a reportable conviction but fail to register as sex offenders, is unconstitutional as applied to him. In State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005) (No. 173PA04), our Supreme Court recently examined the constitutionality of N.C. Gen.Stat. § 14-208.11 as applied to an out-of-state sex offender who failed to register upon moving to North Carolina. In that case, the defendant was a convicted sex offender in South Carolina who was notified while serving his sentence that he had a duty to register with the State of South Carolina upon his release from prison. The defendant signed a form in which he acknowledged that he had been notified, orally and in writing, of his lifelong duty to register within the state. Although the defendant notified the State of South Carolina of his subsequent moves within South Carolina following his release, he failed to notify either the State of South Carolina or the State of North Carolina of his move to Winston-Salem, North Carolina, in November 2000.
In 2001, the defendant was arrested, charged, and convicted in North Carolina for failing to register as a convicted sex offender. On appeal, he cited Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), in support of his assertion that the State had to prove actual or probable notice of his duty to register in order to satisfy due process. Our Supreme Court acknowledged the "narrow Lambert exception to the general rule that ignorance of the law is no excuse[,]" ___ N.C. at ___, 614 S.E.2d at 488, and it noted that
to be entitled to relief under the decidedly narrow Lambert exception, a defendant must establish that his conduct was "wholly passive" such that "circumstances which might move one to inquire as to the necessity of registration are completely lacking" and that [the] defendant was ignorant of his duty to register and there was no reasonable probability that [the] defendant knew his conduct was illegal.
Id. at ___, 614 S.E.2d at 488 (quoting Lambert, 355 U.S. at 228-29, 78 S.Ct. at 242-43, 2 L.Ed.2d at 231-32) (emphasis in original). After concluding that the defendant's case was "rich with circumstances that would move the reasonable individual to inquire of his duty to register in North Carolina such that [the] defendant's conduct was not wholly passive[,]" ___ N.C. at ___, 614 S.E.2d at 488, the Court rejected the defendant's constitutional challenge to N.C. Gen.Stat. § 14-208.11, holding that the "actual notice by South Carolina of [the defendant's] duty to register as a convicted sex offender" was "sufficient" to put the defendant "on notice to inquire into the applicable law of the state to which he relocated, in this instance North Carolina." Id. at ___, 614 S.E.2d at 489.
In the instant case, our review of the circumstances surrounding defendant's conviction for failure to register as a sex offender is limited by the posture of the issue. N.C. Gen.Stat. § 15A-1418(b) (2003) provides that, when a motion for appropriate relief is filed with this Court, we must decide "whether the motion may be determined on the basis of *681 the materials before [us], or whether it is necessary to remand the case to the trial division for taking of evidence or conducting other proceedings." Here, the materials in defendant's motion for appropriate relief contain only his sworn affidavit, which alleges that he was not provided with actual notice during his prison sentence in Maine that he was required to register as a sex offender upon his release, and that he was not instructed that he was required to notify the State of Maine upon a subsequent change in residence. Mindful that it is more within the province of a trial court rather than an appellate court to make factual determinations, we conclude that the materials in the instant case are insufficient to enable us to render a decision regarding defendant's motion. Accordingly, we dismiss that portion of defendant's motion for appropriate relief concerning the applicability of N.C. Gen.Stat. § 14-208.11, without prejudice to defendant to file a new motion for appropriate relief in the superior court. See N.C. Gen.Stat. § 15A-1418 (official commentary) ("It is possible that some factual matters could be decided... in the appellate division, but frequently they would require that the trial court hold an additional evidentiary hearing. Thus the appellate division is ... given authority to remand the case to the trial division for a hearing. It is possible that the hearing could determine the disposition of the case and eliminate the necessity for going forward with the review."); State v. Hurst, 304 N.C. 709, 712, 285 S.E.2d 808, 810 (1982) (per curiam) (dismissing motion for appropriate relief where materials were insufficient to allow the Court to determine whether the defendant's conviction was unconstitutional).
In addition to his challenge to N.C. Gen.Stat. § 14-208.11, defendant asserts that the trial court erred by aggravating his sentence for taking indecent liberties with a child. Defendant contends that the trial court was required to submit the aggravating factor to a jury prior to aggravating his sentence. We agree.
In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005) (No. 485PA04), our Supreme Court recently reviewed North Carolina's structured sentencing scheme in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). After reviewing the pertinent case law, the Court determined that, when "[a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." Allen, 359 N.C. at 437, 615 S.E.2d at 265 (citing Blakely, 542 U.S. at 304-05, 124 S.Ct. at 2538-39, 159 L.Ed.2d at 413-14; Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362, 147 L.Ed.2d at 455; N.C. Gen.Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, and 15A-1340.17). The Court noted that its holding "appl[ied] to cases in which the defendants have not yet been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final[,]" thereby making it applicable to the instant case. 359 N.C. at 427, 615 S.E.2d at 258 (quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)); see also N.C. Gen.Stat. § 15A-1446(d)(19).
Here, the trial court found as an aggravating factor that the circumstances of defendant's conviction for indecent liberties with a child involved defendant taking advantage of a position of trust or confidence to commit the offense. The trial court found this factor unilaterally, thereby violating the Court's decision in Allen and the cases cited therein. The State contends that this error was nevertheless harmless, in that it introduced uncontroverted and overwhelming evidence to establish that defendant violated a position of trust in committing the offense. However, "[b]ecause `speculat[ion] on what juries would have done if they had been asked to find different facts' is impermissible," our Supreme Court concluded in Allen that "`[h]armless error analysis cannot be conducted on Blakely Sixth Amendment violations.'" Id. at 448, 615 S.E.2d at 271 (quoting State v. Hughes, 154 Wash.2d 118, 148, 110 P.3d 192, 208 (2005)). Therefore, in light of the Court's decision in Allen, we conclude that the trial court committed reversible error by aggravating defendant's sentence for taking indecent liberties with a *682 child.[6] Accordingly, we allow that portion of defendant's motion for appropriate relief concerning the imposition of the aggravated sentence, and we remand the case for resentencing. As discussed above, that portion of defendant's motion for appropriate relief concerning the application of N.C. Gen.Stat. § 14-208.11 to the facts of this case is dismissed without prejudice to defendant to refile the motion at the trial court level.
In light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error in part, but we remand the case for resentencing.
No error at trial; remanded for resentencing.
Judges HUDSON and STEELMAN concur.
NOTES
[2] For the purposes of this opinion, we will refer to defendant's niece by the pseudonym "Lisa."
[3] For the purposes of this opinion, we will refer to the minor child by the pseudonym "Kim."
[4] For the purposes of this opinion, we will refer to Lisa's mother and defendant's sister by the pseudonym "Karen."
[5] In related arguments, defendant requests this Court grant him relief due to his trial counsel's failure to provide him with effective assistance of counsel. However, due to our discussion and disposition of these issues, we decline to grant defendant relief on these grounds.
[6] Defendant also contends that the trial court was prohibited from sentencing him in the aggravated range because the aggravating factor was not alleged in the indictment. However, we note that our Supreme Court specifically rejected the same argument by the defendant in Allen, ___ N.C. at ___, 615 S.E.2d at ___ (overruling language in Lucas "requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment[,]" finding no error in the State's failure to include aggravating factors in the defendant's indictment, and stating that in State v. Hunt, "[T]his Court concluded that `the Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.'" (quoting Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003))). Accordingly, we overrule defendant's contention in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366536/ | 617 S.E.2d 288 (2005)
168 N.C. App. 206
In re L.D.B.
No. COA 04-194.
Court of Appeals of North Carolina.
January 18, 2005.
*289 Thurman, Wilson & Boutwell, by W. David Thurman, for petitioner-appellee.
Rebekah W. Davis, for respondent-appellant.
HUDSON, Judge.
Respondent Mungo appeals the trial court's order terminating parental rights of minor child L.D.B. For the reasons set forth below, we reverse the decision of the trial court.
Minor child L.D.B. was born in August of 2001, at which time her mother surrendered parental rights and put her up for adoption. At that time, the mother refused to give the adoption agency the father's name. Within a couple of weeks, though, the mother named respondent Mungo as L.D.B.'s father, and he acknowledged that he could be the father. Respondent Mungo and petitioner, the adoption agency (hereinafter "the agency"), discussed paternity testing, but could not agree where the test would be performed or who would pay for it. The record reveals nothing further on this case until the agency filed the petition for termination of parental rights (TPR) on 22 July 2002. The petition named Mungo as the father and the sole respondent, alleging as grounds failure to support the child. Mungo asserts that the parties were unable to agree on a cost effective paternity test, while the agency argues that respondent agreed to pay for half but did not follow through. The agency filed a motion for a paternity test on 8 November 2002 and on 7 January 2003 the court entered an order for Mungo to submit to the test.
Mungo missed two court-imposed deadlines for the test and was sanctioned by the court on 31 March 2003. Also on that date, the court again ordered him to arrange for the test and notify the court once it was completed. The test was completed on or about 10 April 2003. Mungo asserts that the test results were not delivered to the court or the parties' attorneys, but were held by the Child Support Enforcement Agency until his attorney went to the agency office and got a copy of the top page of the test on 6 May 2003. His attorney then transmitted a copy of the paternity test to the agency's counsel, who sent it directly to the court. The test showed a zero percent probability that Mungo is L.D.B.'s father.
In a 6 May 2003 letter to the agency's counsel, Mungo's attorney stated, "if I hear nothing from my client, I do not plan to be at the next hearing which will enable you to proceed in whatever manner you wish." Eight days later, on 14 May 2003, the TPR hearing was held. Mungo and his attorney attended and attempted to proffer evidence, but the court did not allow them to introduce any evidence, declaring that Mungo had no standing, based on the results of the paternity test. On 29 May 2003, the court entered orders excluding Mungo as the father of the child and terminating the parental rights of the father.
Respondent Mungo first argues that the trial court erred in refusing to hold a full and fair hearing or take any evidence regarding the issue of paternity. We agree. It is well-established that a termination of parental rights must comply with the requisites of the Due Process Clause. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982). "The fundamental premise of procedural due process protection is notice and the opportunity to be heard." Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998).
Here, the TPR petition alleges that "[t]he identified father of the child in this action is" Mungo and that sufficient grounds exist to terminate his parental rights pursuant to N.C. Gen.Stat. § 7B-111(a)(1), (3), (5) and (7) (2003). Although Mungo was duly served with the petition to terminate his parental rights and was present at the hearing, the trial court nevertheless chose not to hear any argument or receive any evidence from Mungo. The judge told Mungo's attorney:
At the stage we are in these proceedings, I think it's most appropriate that your client be excluded from any opportunity to offer evidence at this point .... According to the official result of the paternity test ordered by the Court, it's this Court's ruling that he does not have standing to participate in this hearing and that as to his interest, this hearing is complete (emphasis added).
*290 The court holds a hearing in order to determine the existence or nonexistence of the grounds alleged in the TPR petition. N.C.G.S. § 7B-1109 (2003). Our Supreme Court has recognized that the "parental liberty interest `is perhaps the oldest of the fundamental liberty interests.'" Owenby v. Young, 357 N.C. 142, 144, 579 S.E.2d 264, 266 (2003). Similarly, this Court has previously concluded that, at an adjudication of neglect hearing, "the trial court must protect the due process rights not only of the child, but also of the parent." Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C.App. 559, 561, 528 S.E.2d 394, 395 (2000). We conclude that these due process rights also extend to the parent during a termination proceeding. We further conclude that the right of a named respondent to offer evidence regarding the petition's allegations, including whether the respondent is actually a parent of the minor child, is inherent in the protection of due process. Thus, having properly been made a party to the proceedings, Mungo was entitled to an adequate opportunity to be heard regarding the termination of his parental rights, unless and until the trial court either dismissed him as a party or dismissed the underlying petition. The trial court's subsequent exclusion of Mungo for lack of standing did not amount to his dismissal from the hearing, after which the trial court terminated "the parental rights of the father of" L.D.B. We conclude that the trial court erred in refusing to consider evidence and arguments from Mungo.
Mungo also argues that there was insufficient evidence to support the court's findings of fact and conclusions of law, as no evidence was presented at the hearing and the test results were not entered into evidence. Again, we agree. There must be competent evidence to support the court's findings of fact and conclusions of law. Shear v. Stevens Building Co., 107 N.C.App. 154, 418 S.E.2d 841 (1992). The court found that Mungo was not the father based solely on the results of the paternity test, which the judge had seen before the hearing when the agency's counsel sent a copy of the results to the court. A copy of the test results was in the court file, but the original was missing and neither the results, nor any other evidence, were introduced. Mungo's attorney informed the trial court that "both [Mungo] and the biological mother are convinced that he's the father and the tests don't bear that out, so something is askewed [sic] from their point of view," and that he intended to call witnesses regarding the circumstances of the paternity test. However, as discussed, the court refused to take this evidence and based its findings solely on the paternity test results the judge had viewed before the hearing. A fact-finder's observation "does not constitute evidence and cannot provide the basis for any finding of fact." Carrington v. Housing Authority of the City of Durham, 54 N.C.App. 158, 160, 282 S.E.2d 541, 542 (1981) (citing Weidle v. Cloverdale Ford, 50 N.C.App. 555, 557, 274 S.E.2d 263, 264 (1981)). As Mungo correctly asserts, without any evidence, the court is unable to make proper findings of fact or conclusions of law based solely on a copy of the test results viewed prior to the hearing.
Both parties devote considerable argument to N.C. Gen.Stat. § 8-50.1(b1) (2003) in their respective briefs. G.S. § 8-50.1(b1) provides for admission of paternity tests in civil actions. In relevant part, it states:
In the trial of any civil action in which the question of parentage arises, the court shall, on motion of a party, order the mother, the child, and the alleged father-defendant to submit to one or more blood or genetic marker tests .... Verified documentary evidence of the chain of custody of the blood specimens obtained pursuant to this subsection shall be competent evidence to establish the chain of custody. Any party objecting to or contesting the procedures or results of the blood or genetic marker tests shall file with the court written objections setting forth the basis for the objections and shall serve copies thereof upon all other parties not less than 10 days prior to any hearing at which the results may be introduced into evidence.... If no objections are filed within the time and manner prescribed, the test results are admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or *291 accuracy. The results of the blood or genetic marker tests shall have the following effect:
(1) If the court finds that the conclusion of all the experts, as disclosed by the evidence based upon the test, is that the probability of the alleged parent's parentage is less than eighty-five percent (85%), the alleged parent is presumed not to be the parent and the evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence. G.S. § 8-50.1(b1).
Here, it is undisputed that Mungo was ordered to submit to the DNA test and thus the test falls within the ambit of this statute. Mungo contends that the test did not meet the statutory requirements because there was no verified documentary evidence of the chain of custody. He also argues that he did not have enough time before the hearing to file a written objection. The agency contends that the test results did meet the statutory requirements and could thus not be challenged by Mungo at the hearing, as he had not filed a written objection to the test results prior to the trial. Without deciding the merits of these arguments, we conclude that even if the document were properly verified and even if Mungo failed to file written objections before the hearing, the trial court still erred by precluding Mungo from participating, since the presumption created by the test is, according to this statute, rebuttable. G.S. § 8-50.1(b1)(1).
First, the statute clearly states that if the test meets the statutory requirements, the results are merely "admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy." G.S. § 8-50.1(b1)(emphasis added). The test results, while admissible, were never actually offered or received into evidence. Admissible is not the same as admitted into evidence.
Furthermore, even if the test results met the statutory requirements and had been properly admitted into evidence, they only create a rebuttable presumption. A rebuttable presumption is not "an irrebuttable conclusion of law. It is a mere inference of fact." In Re: Will of Wall, 223 N.C. 591, 595, 27 S.E.2d 728, 731 (1943) (internal quotes and citation omitted). A rebuttable presumption has
no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, without giving any evidential weight to the presumption itself. Id. at 596, 27 S.E.2d at 731. (emphasis added; internal citations and quotes omitted).
As discussed, the court refused to give Mungo an opportunity to rebut the presumption. The agency argues that because the test showed a zero percent probability of Mungo's paternity, no evidence could have been presented which would rebut the presumption by "clear, cogent, and convincing evidence," as required by the statute. G.S. § 8-50.1(b1)(1). However, this Court has affirmed cases in which testimony overcame the paternity test results. For example, this Court held that a putative father's testimony that he did not know the mother nor recall meeting her was sufficient to establish that he was not the father, even though a paternity test showed a 99.96% probability of parentage. Nash County Dep't of Soc. Servs. v. Beamon, 126 N.C.App. 536, 538, 485 S.E.2d 851, 852 (1997) (holding that testimony rebutted the presumption created by G.S. § 8-50.1(b1)(4), which creates a presumption of parenthood where the paternity test shows a probability of parentage 97% or greater that "may be rebutted only by clear, cogent, and convincing evidence"). Thus, the court erred in not allowing Mungo to attempt to rebut the statutory presumption created by the test results.
Respondent Mungo also argues that the trial court erred by entering a TPR order because there was no service on any prospective father other than him, and he was not allowed to participate in the TPR hearing. Petitioner asserts that Mungo lacks standing to raise this argument. We agree that Mungo lacks standing to raise any issue regarding the court's lack of service on a potential John Doe father, but he has properly raised the issue regarding the court's *292 failure to allow him to participate in the TPR hearing.
Although the court first found that Mungo was not the father, it then proceeded to hold the TPR hearing, but denied Mungo the opportunity to participate. The TPR hearing could only have concerned termination of Mungo's parental rights, as the entire proceeding was based on a petition to terminate his rights. Although the court concluded as law that "the father has been properly served," Mungo was the only potential father served. The court had no authority to proceed as to any potential father except for Mungo; thus, the court improperly excluded Mungo from the TPR hearing about his parental rights.
For the above reasons, we reverse the trial court's orders regarding paternity and termination of parental rights.
Reversed.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366514/ | 617 S.E.2d 760 (2005)
217 W.Va. 213
GLEN FALLS INSURANCE COMPANY, Appellee and Plaintiff Below,
v.
Billie Joe SMITH, Robin Smith and Johnny Combs, Appellants and Defendants Below.
GMAC Insurance Company, Appellee and Plaintiff Below,
v.
Johnny Combs, Appellant and Defendant Below.
No. 31972.
Supreme Court of Appeals of West Virginia.
Submitted: February 23, 2005.
Filed: July 1, 2005.
*762 Charles B. Mullins, II, Pineville, for Appellants.
Rochelle L. Brightwell, Pietragallo, Bosick & Gordon, Weirton, for Glen Falls Insurance Company.
Robert P. Martin, Phillip C. Monroe, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, P.L.L.C., Charleston, for GMAC Insurance Company.
Justice BENJAMIN delivered the opinion of the Court.
Justice DAVIS concurs and reserves the right to file a separate opinion.
Chief Justice ALBRIGHT dissents in part, concurs in part, and reserves the right to file a separate opinion.
Justice STARCHER dissents in part, concurs in part, and reserves the right to file a separate opinion.
BENJAMIN, Justice.
These consolidated actions are before the Court upon the appeal of the Appellant, Johnny Combs, defendant below, from the December 18, 2003 order of the Circuit Court of Wyoming County in Civil Action No. 02-C-257,[1] and in Civil Action No. 03-C-27.[2]*763 By its December 18, 2003 order, the Circuit Court granted both the motion of the Appellee, Glen Falls Insurance Company ("Glen Falls"), plaintiff below, for summary judgment in Civil Action No. 02-C-257 ("the Glen Falls case"), and the motion of the Appellee, GMAC Insurance Company ("GMAC"), plaintiff below, for summary judgment in Civil Action No. 03-C-27 ("the GMAC case").
In the Glen Falls case, Combs contends that the circuit court erred in determining as a matter of law that he was neither a "ward" nor a "foster child" of Billie Joe Smith, the named insured in a policy of automobile insurance issued by Glen Falls. Because of such determination, Combs was not eligible, according to the terms of the policy, for its underinsured motorist coverage for his injuries arising out of a single vehicle accident that occurred on January 29, 2002, involving a truck operated by Jimmy Dale Graham, in which Combs was a guest passenger.
In the GMAC case, Combs contends that the circuit court erred in determining as a matter of law that he was not, on January 29, 2002, a resident of the household of his biological mother, Leneice Combs, the named insured in an automobile insurance policy issued by GMAC. Because of such determination, Combs was not eligible, according to the terms of the policy, for its underinsured motorist coverage for his injuries arising out of the same January 29, 2002 automobile accident. Thus, Combs seeks coverage under the underinsured motorist coverage in both the GMAC and Glen Falls automobile insurance policies for alleged injuries in excess of the insurance policy limits paid by Jimmy Dale Graham's insurer.
Appellees, Glen Falls and GMAC, contend that the circuit court did not err in granting both of them summary judgment in their respective actions, Case Nos. 02-C-257 and 03-C-27. The Court has before it the petition for appeal filed by Johnny Combs, the briefs of the parties, and has heard oral argument from counsel for the Appellant and Appellees. We conclude that the Circuit Court of Wyoming County did not err in granting Glen Falls' motion for summary judgment in Case No. 02-C-257 and did not err in granting GMAC's motion for summary judgment in Case No. 03-C-27. We therefore affirm the December 18, 2003 order.
I.
FACTS AND PROCEDURAL BACKGROUND
On January 29, 2002, the Appellant, Johnny Combs, was injured in a single vehicle accident while riding as a guest passenger in a truck operated by Jimmy Graham.[3] Combs sustained various physical injuries in this accident, including permanent facial scarring and the loss of several teeth, and incurred approximately $18,928.47 in medical expenses. He settled with Mr. Graham's liability carrier for the $20,000 policy limits of its coverage. Additionally, he asserted underinsured motorist claims against GMAC and Glen Falls contending (1) that he was a resident of the household of his mother, Leneice Combs, at the time of the January 29, 2002 accident and, therefore, qualified for underinsured motorist coverage for his injuries under a policy of insurance issued by GMAC to his mother, the named insured; and (2) that he was also a "ward" or "foster child" of Billie Joe Smith and a resident of Mr. Smith's household (which was separate from that of his mother's household) and was actually residing therein at the time of the accident, thus also qualifying for underinsured motorist coverage under a policy of insurance issued by Glen Falls to Billie Joe Smith, the named insured.
A. The GMAC Policy
By its terms, Leneice Combs' GMAC policy required Appellant Combs to have been "a resident of [her] household" at the time of *764 the accident in order to be included in its underinsured motorist coverage. Believing that Combs did not qualify as a resident of his mother's household, GMAC instituted a declaratory judgment action in the Circuit Court of Wyoming County seeking a declaration as to whether or not Appellant Combs qualified as an insured under Leneice Combs' insurance policy. Following the filing of a counter-claim by Appellant Combs, the filing of answers to both the original complaint and the counter-claim, and discovery, GMAC filed a motion for summary judgment, to which Appellant filed no response. The motion was granted by the court in an order entered on December 18, 2003, from which Combs appeals to this Court. In its order, the court found "that the facts presented do not support a finding that Johnny Combs was a resident of his mother's household."
B. The Glen Falls Policy
At the time of the accident at issue, Combs was twenty-two years old and was living with Billie Joe Smith at his home in Lynco, West Virginia.[4] Billie Joe Smith was married to Leneice Combs, Appellant Combs' biological mother, from July 1967 until they divorced in July 1978. Thereafter, Leneice Combs married Clark Combs and Appellant was born of that marriage. Leneice and Clark Combs divorced in 1980, remarried and divorced again in 1983. After the second divorce, Leneice Combs and Billie Joe Smith reestablished their relationship, but did not re-marry.[5] Billie Joe Smith apparently provided emotional and financial support to Appellant Combs and held him out as a son. Although Appellant Combs refers to Mr. Smith as "dad," there is no evidence on the record before this Court and no argument has been made, that Billie Joe Smith is Comb's biological father. Further, no argument has been made nor evidence produced that Mr. Smith ever legally adopted Combs or formally accepted legal responsibility for him via guardianship papers or otherwise.
On or about January 29, 2002, Glen Falls issued an automobile insurance policy, having a policy period of January 22, 2002 through January 22, 2003, to Billie Joe Smith. Appellant Combs was not a named driver nor an additional insured under this policy. Nevertheless, Combs asserts a claim for underinsured motorist benefits under this policy for injuries sustained in the January 29, 2002 automobile accident arguing that Mr. Smith was his "father."
The Glen Falls policy defines "Covered Person" for the purposes of underinsured motorist coverage as:
a. You for the ownership, maintenance or use of any vehicle, except for occupying, or when struck by, a vehicle owned by you which is not insured for this coverage under this policy;
b. Any family member:
(1) Who does not own an automobile for the maintenance or use of any vehicle;
(2) Who owns an automobile but only for the use of an insured motor vehicle;
Except while occupying or when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy.
(Emphasis in original). The term "family member" is defined as:
9. Family Member means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.
For the purposes of this definition, to be considered a resident of your household when evaluating coverage for a loss a person must have been actually residing in your household on the date the loss occurred. However, your:
a. Son;
b. Daughter;
c. Ward; or
d. Foster child;
*765 In the United States military or away at school will be considered a resident of your household unless he or she has demonstrated an intent to reside elsewhere permanently.
On or about December 4, 2002, Glen Falls instituted a declaratory judgment action seeking a declaration that Combs' claim for underinsured motorists benefits was not covered under the terms of the policy issued to Billie Joe Smith. An amended complaint for declaratory relief was filed on or about April 9, 2003 seeking substantially the same relief. After discovery, Glen Falls filed a motion for summary judgment seeking a declaration that coverage did not exist under its policy because Appellant Combs was not a "family member" as defined by the policy terms. Following briefing by the parties, oral argument was held before the circuit court on October 3, 2003. By Order dated December 18, 2003, the circuit court granted Glen Falls' motion for summary judgment finding that Combs did not qualify as either a "ward" or "foster child" of Billie Joe Smith. The circuit court found "that the term `ward' implies a guardian-ward relationship created by legal process, such as that described in W. Va. Code § 44A-1-2," and "that West Virginia law does not support a finding that Johnny Combs qualifies as Billie Joe Smith's foster child." Appellant Combs now appeals the circuit court's ruling to this Court.
II.
Standard of Review
This appeal arises from the entry of summary judgment in favor of two separate insurance companies finding that coverage does not exist for Appellant Combs' claims under the underinsured motorist provisions of either individual policy. We review a circuit court's order granting summary judgment de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In reviewing summary judgment, this Court will apply the same test that the circuit court should have used; namely, whether "it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). As with the circuit court, we "must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion," that is, in this case, the Appellant. Painter, 192 W.Va. at 192, 451 S.E.2d at 758.
Each ruling of the circuit court presents a question of the proper coverage under an insurance contract. We have previously recognized that the "[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Syl. Pt. 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002). Likewise, "[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgement, shall be reviewed de novo on appeal." Syl. Pt. 2, Riffe v. Home Finders Associates, Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).
III.
Discussion
A. The GMAC Case
In Syllabus Point 3 of Farmers Mutual Insurance Company v. Tucker, 213 W.Va. 16, 576 S.E.2d 261 (2002), this Court held:
in a homeowners' insurance policy that does not otherwise define the phrase "resident of your household," the phrase means a person who dwellsthough not necessarily under a common roofwith other individuals who are named insureds in a manner and for a sufficient length of time so that they could be considered to be a family living together. The factors to be considered in determining whether that standard has been met include, but are not limited to, the intent of the parties, the formality of the relationship between the person in question and the other members of the named insureds' household, the permanence or transient nature of that person's residence therein, the absence or existence of another place of lodging for that person, and the age and self-sufficiency of that person.
*766 The meaning of the phrase "resident of your household," if not otherwise defined, would be the same when used in an automobile policy as it is when used in a homeowners' liability policy. Thus, for Appellant Combs to have been a resident of Leneice Combs' household on the date of the accident (January 29, 2002) for which he sought underinsured motorist coverage under her GMAC insurance policy, he must, under the foregoing meaning of the phrase, have, prior to and on that date, dwelt with Leneice Combs in her household "for a sufficient length of time so that [the two of them] could be considered to be a family living together."
This Court in Farmers Mutual set forth five non-inclusive factors, quoted above, which are to be considered in determining whether Johnny Combs had met that standard. The circuit court considered these factors in its December 18, 2003, order and, in granting GMAC's motion for summary judgment, concluded:
17. In the instant case, the parties, Leneice and Johnny Combs, both indicated that they considered Johnny Combs primary residence to be with Billie Joe Smith; Johnny Combs was past the age of majority; he had no specific living quarters at his mother's residence; only a few of his belongings were stored at his mother's home and that was primarily for his convenience on those occasions when he spent the night; he regularly visited without staying overnight; he looked to Billie Joe Smith for money when he was unemployed; and, although he was a somewhat frequent overnight guest at his mother's home, his stays could best be described as transient and sporadic.
Before proceeding with a consideration of the Farmers Mutual factors in the GMAC case, it should be noted that in order for Combs to have qualified for underinsured motorist coverage under the Glen Falls insurance policy to Billie Joe Smith, he must, among other requirements, have also been "a resident of [Billie Joe Smith's] household" and have been "actually residing in [Billie Joe Smith's] household on the date the loss occurred" meaning, according to Farmers Mutual, that Combs had to have dwelt with Billie Joe Smith in his household "for a sufficient length of time so that [the two of them] could be considered to be a family living together" on the date the loss occurred.[6]
This first factor is obviously a most significant one. Did Combs intend that his dwelling be with his mother on January 29, 2002, and did she, in turn, intend that her dwelling be his so that they considered themselves to be a family living together? In Farmers Mutual, this court observed that "because a determination of residency depends on the intent of the parties, it is typically a question of fact that cannot be determined through a motion for summary judgment." Farmers Mutual, 213 W.Va. at 25, 576 S.E.2d at 270. While that may often be the typical case, it is not the case here because Combs and his mother made their mutual intent amply clear during testimony: On and preceding January 29, 2002, Combs "dwell[ed] with" (using the language found in Farmers Mutual) Billie Joe Smith, the man who raised him and with whom he, at the age of twenty-two, continued to reside on and prior to that date.[7] Smith testified that Combs lived at his home 20 to 25 days out of the month, and that the rest of the time Combs stayed with different people, including his brother, his sisters, his friends, and his mother. Smith also testified that at the time of the truck accident on January 29, 2002, he, his mother, and Combs were living together in the Smith home in Lynco, W. Va.
*767 Appellant Combs' testimony confirms his residence with Smith, not his mother, on and before January 29, 2002. About the Smith home, Combs was asked, "Is that basically where you considered your home to be?" He replied in the affirmative. Appellant further testified that he lived with Smith, not his mother, prior to the accident and only stayed with his mother occasionally.
In her deposition, Leneice Combs likewise related that she considered Appellant Combs to be living primarily with Billie Joe Smith, and that she considered Smith's home to be her son's home. She further testified that Appellant lived with Smith in January, 2002, and had done so for most of his life; that he had no set schedule for visiting her; that he visited her more often than he stayed overnight; and that, in her opinion, he had been living with Smith since he, Combs, had been eight or ten years old.
Based upon the definitive deposition responses, we find that there was no genuine issue as to Appellant Combs' and Leneice Combs'"intent" with respect to where Appellant "dwell[ed] on and prior" to the truck accident on January 29, 2002. They both believed that Appellant "dwell[ed] with" Billie Joe Smith, and was a resident of his household.
The remaining Farmers Mutual factors are undisputed and are likewise definitive that Appellant Combs did not reside with his mother. There was no formality to their relationship in Leneice Combs' residence. As Ms. Combs' testified, Appellant Combs "pops in and out." Thus, Appellant Combs' presence in Leneice Comb's residence was, at best, of a "transient nature." As previously considered, Appellant, his mother, Leneice Combs, and Billie Joe Smith all acknowledged that a place of lodging other than his mother's existed for Combs. All evidence of record conclusively confirms that it was Smith's residence where Combs had dwelled and made his home from the age of eight or ten until the date of their depositions. Finally, Combs was twenty-two years old at the time of the January 2002 truck accident. Combs was either self-sufficient or depended upon Billie Joe Smith for financial assistance from time to time. There was no evidence that Combs' mother provided him with any financial help.
In summary, it is clear from the foregoing that Appellant Combs "dwelled with" and "under the same roof" as Billie Joe Smith on and prior to the date of the truck accident on January 29, 2002, and that he was, therefore, a resident of Billie Joe Smith's household on and prior to that date, according to this Court's holdings in Spangler v. Armstrong, 201 W.Va. 643, 499 S.E.2d 865 (1997) (per curium) and Farmers Mutual. Based upon the evidence outlined above, the granting of summary judgment in favor of GMAC was appropriate in this case. We therefore affirm that order.
B. The Glen Falls Policy
Appellant Combs also argues that the circuit court erred in holding that he did not qualify as either a "ward" or a "foster child" under the terms of the Glen Falls policy issued to Billie Joe Smith. Arguing that the terms are ambiguous, Combs claims underinsured motorist coverage should be provided. In support of this position, Combs argues that he always considered Billie Joe Smith to be his father and that Billie Joe Smith has always treated him as a son. Conversely, Glen Falls argues that both the term "ward" and the term "foster child" are terms which refer to legally recognized relationships and that the circuit court did not err in finding that Johnny Combs did not have a legally recognized relationship with Billie Joe Smith so as to qualify as a "family member" under the terms of the Glen Falls policy. For the reasons set forth below, we agree with the circuit court and Glen Falls.
We have long held that "[l]anguage in an insurance policy should be given its plain, ordinary meaning." Syl. Pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986), overruled, in part, by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987); Syl. Pt. 2, Russell v. State Automobile Mutual Insurance Co., 188 W.Va. 81, 422 S.E.2d 803 (1992); Syl. pt. 2, American States Ins. Co. v. Tanner, 211 W.Va. 160, 563 S.E.2d 825 (2002). Moreover, "[w]here the provisions in an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning *768 intended." Syl. Pt. 3, Soliva, quoting, Syl. Pt. 1, Christopher v. United States Life Ins., 145 W.Va. 707, 116 S.E.2d 864 (1960). Where, however, the policy language under consideration is ambiguous, the policy should be liberally construed in favor of the insured "although such construction should not be unreasonably applied to contravene the object and plain intent of the parties." Syl. Pt. 6, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), quoting Syl. Pt. 2, Marson Coal Co. v. Insurance Co. of State of Pennsylvania, 158 W.Va. 146, 210 S.E.2d 747 (1974). To be ambiguous, the policy provision must be "reasonably susceptible of two different meanings or [be] of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning." Syl. Pt. 5, Hamric, quoting Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976)(emphasis added). A contract of insurance should never be interpreted to create an absurd result, but should instead receive a reasonable interpretation. Soliva, 176 W.Va. at 432, 345 S.E.2d at 35. The standard is that of "what a reasonable person standing in the shoes of the insured would expect the language to mean." Id. at 433, at 35-36. It is the opinion of this Court that a twenty-two year old man, such as Appellant who has a history of adult gainful employment, cannot reasonably be considered a "ward" or "foster child" of another under the law of this State, particularly where there has never been a legally recognized relationship with the purported parent or guardian.
In order to qualify for underinsured motorist coverage under the Glen Falls policy, Johnny Combs must be both a "family member" of Billie Joe Smith and a "resident" of his household. The policy defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child." Because we find Johnny Combs is not a "family member" of Billie Joe Smith since he is not related to Billie Joe Smith by marriage or adoption and, furthermore, cannot be deemed a "ward" or "foster child" under West Virginia law, Combs' residence in Billie Joe Smith's household is, by itself, insufficient for Smith's coverage with Glen Falls to be extended to Combs.
The operative policy language at issue in this appeal is the Glen Falls policy definition of "family member." Combs does not contend that he is related to Smith by blood, marriage or adoption. Instead, he contends that he qualifies as a "ward" or "foster child" under the policy definition. At least three courts have analyzed similar definitions and found that, due to the context in which they are used, the terms "ward" and "foster child" refer to relationships recognized by law. See, Matthews v. Penn-America Ins. Co., 106 Wash.App. 745, 25 P.3d 451, 454 (2001)(finding specific references to spouse, ward or foster child strongly point to the traditional family definition those connected by blood or law and holding policy only provides coverage for those related to the policy holder by blood, affinity or law)[8]; Virginia Farm Bureau Mut. Ins. Co. v. Gile, 259 Va. 164, 524 S.E.2d 642, 645 (2000)(holding term "foster child" as used in definition of the policy definition of "relative" unambiguously refers to a relationship recognized by law based upon context in which the term is used)[9]; Pisani v. Travelers Ins. Co., 29 Mass.App.Ct. 964, 560 N.E.2d 155, 156 *769 (1990)(finding "[t]he word `includes' relates back to the words `by blood, marriage or adoption.' The latter words connote legal bonds rather than [an] informal status").[10] As noted by the Court of Appeals of Washington in Matthews:
If "context" means all the possible dictionary definitions, it is meaningless. To be meaningful, context must refer to the context of Penn-America's policy. Thus, we consider all appropriate dictionary meanings of "family" and then look to the words and phrases surrounding "family" in Penn-America's policy to guide us to the meaning of "family" in that context. And this requires us to consider the limiting effect of Penn America's use of "spouse," "ward," and "foster child."
Matthews, 25 P.3d at 454. Defining a term in an insurance policy with reference to the context in which it is used is consistent with West Virginia law which requires that a policy be read as a whole, giving meaning to each term. Soliva, 176 W.Va. at 432, 345 S.E.2d at 35. We find the analysis utilized by these courts to be persuasive and thus, hold the terms "ward" and "foster child" as used in the context of the definition of "family member" in an automobile insurance policy are terms which describe a legally recognized relationship.
Having found that the terms "ward" and "foster child" as used in the definition of the term "family member" describe legally recognized relationships, we must determine whether Johnny Combs' relationship with Billie Joe Smith is a legally recognized "ward" or "foster child" relationship under West Virginia law. West Virginia statutory law recognizes two types of guardian-ward relationships. First, a guardian may be appointed for a minor via a testamentary appointment by the minor's parent or by the circuit court or family court of the county in which the minor resides or in which the minor has an estate, if such appointment is in the minor's best interest. W. Va.Code 44-10-1 (1923); W. Va.Code 44-10-3 (2004). A minor is defined, under West Virginia law, as a person under the age of eighteen years. W. Va.Code 2-2-10(aa)(1998). Secondly, a guardian may be appointed for a "protected person", defined as "an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment,..." W. Va.Code 44A-1-2 (1994). As Combs was over the age of eighteen at the time of the accident at issue, he could not qualify as a ward unless he is also a "protected person." There is no evidence before this Court that Combs has been adjudicated to be a "protected person" for whom Billie Joe Smith has been appointed as guardian. Therefore, Combs cannot reasonably be considered a "ward" of Billie Joe Smith under the terms of the Glen Falls policy.[11]
More problematic is the determination as to whether Combs, a twenty-two year old man who has a history of gainful employment, may reasonable be considered to be Billie Joe Smith's "foster child." Combs argues that in today's society, the term "foster child" should not be limited to those individuals formally placed by the State in another's home, but should include persons who are cared for and supported by persons other than their natural parent regardless of age. In support of this argument, Combs quotes at length the opinions in Sigel v. New Jersey Mfr. Ins. Co., 328 N.J.Super. 293, 745 A.2d 602 (2000), and United Services Auto. Assoc. v. Gambino, 114 N.C.App. 701, 443 S.E.2d 368 (1994).[12]*770 The first of these two cases is readily distinguishable. In Sigel, the New Jersey court was presented with the question as to whether the term "related by marriage" within the definition of "family member" encompassed step-siblings. Sigel, 745 A.2d at 603. Therein, the court held that the term "related by marriage" encompasses step-siblings and that there was "no need to add economic dependence as a required criterion." Id. at 605. Sigel did not involve the question of whether a person constitutes a "foster child."
More closely on point is the decision in Gambino, wherein the court found a question of fact existed as to whether the claimant constituted a "foster child" of an insured, thereby precluding summary judgment in favor of the defendants. Gambino, 443 S.E.2d at 372. The alleged foster child in Gambino was a nineteen year old college student who had lived with the insured since before his high school graduation, who returned to the insureds' home during school breaks and who received food and spending money from the insureds, in addition to utilizing the insureds' family vehicle. Id. at 370. The court in Gambino found the term "foster child" referred to a sociological relationship independent of a person's age and means a "person whose upbringing, care and support has been provided by someone not related by blood or legal ties and who has reared the person as his or her own child." Id. at 371-2. The court did not, however, examine the term "foster child" in the context of the remaining terms in the definition of "family member", recognizing, as we have, that each refers to a legally recognized relationship.[13] Instead, the court took the term out of context and, looking to dictionary definitions, adopted a definition which is not a legally recognized relationship.
Even if it were applicable, we decline the invitation to follow the Gambino[14] decision. The context in which the term "foster child" is used in the Glen Falls policy is determinative of its meaning. This Court is more persuaded by the ample case law viewing the term in context and considering both the existence of a legally recognized relationship and the "foster child's" age. See, e.g., Virginia Farm Bureau Mut. Ins. Co. v. Gile, 259 Va. 164, 524 S.E.2d 642, 645 (2000)(looking to Virginia statutory law to determine scope of foster relationship); Wheeler v. Rocky Mtn. Fire & Cas. Co., 124 Wash.App. 868, 103 P.3d 240, 243 (2004)(finding "reasonable meaning for a foster child means a child under the age of 18"); Congdon v. Automobile Club Ins. Co., 174 Vt. 586, 816 A.2d 504, 507 (2002)(holding, in light of statutes governing placement of foster children, the term "foster child" in automobile policy reasonable refers to child under the age of majority).
*771 West Virginia statutory law also provides guidance as to whether Appellant Combs may reasonably, legally be considered a "foster child." Although, the West Virginia Code does not define the term "foster child", it repeatedly defines "child," "infant" and "minor" in the same manner a person under the age of eighteen years.[15]See, e.g., W. Va.Code 2-2-10(aa) (1998)(rules for construction of statutes); W. Va.Code 48-10-202 (2001)(Grandparent Visitation); W. Va.Code 48-20-102(b)(2001)(Uniform Child Custody Jurisdiction and Enforcement Act); W. Va. Code 49-1-2 (1999)(child welfare statutes); W. Va.Code 49-2A-1 (1975)(Interstate Compact on the Placement of Children)(defining "child" as "person who, by reason of minority, is legally subject to parental, guardianship or similar control"); W. Va.Code 49-2B-2(f) (2001)(outlining duties of commissioner of human services for child welfare); W. Va. Code 49-5-1 (1998)(juvenile proceedings); W. Va.Code 49-9-2 (1997)(Missing Children Information Act); W. Va.Code 61-8D-1 (1988)(child abuse). Considering these statutory definitions of the term "child" in light of West Virginia's child welfare statutes governing the placement of children with foster parents or in foster homes, W. Va.Code 49-1-1, et seq., this Court concludes the term "foster child" refers to a person, under the age of eighteen years, who has been entrusted to the care of a person other than a biological parent or legal guardian, by a state agency. As Johnny Combs was twenty-two years of age at the time of the accident in question, he does not, by definition, qualify as a "foster child" of Billie Joe Smith. Moreover, even if Johnny Combs had been under the age of eighteen at the time of the accident, he was not involved in a legally recognized relationship with Billie Joe Smith pursuant to which he could legally be recognized as Billie Joe Smith's foster child. As such, the circuit court did not err in finding that Combs was not entitled to coverage under the underinsured motorist benefits of the Glen Falls policy.
IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Circuit Court of Wyoming County. Appellant Johnny Combs can not reasonably be considered to be a "resident" of his mother's household so as to qualify for underinsured motorist benefits under the policy of insurance issued by GMAC. Likewise, Appellant Combs cannot reasonably be considered to be a "ward" or "foster child" of Billie Joe Smith so as to qualify for underinsured motorists benefits under the Glen Falls policy of insurance because Appellant Combs' relationship with Billie Joe Smith did not rise to the level of a legally recognized "ward" or "foster child" relationship.
AFFIRMED
ALBRIGHT, Chief Justice, dissenting, in part, and concurring, in part.
I strongly disagree with the majority's affirmance of the lower court's grant of summary judgment in favor of Glen Falls Insurance Company[1] on the basis that Appellant was not the foster child of Mr. Smith at the time of the accident, because this result was reached by ignoring time-honored principles governing the interpretation of ambiguous terms in insurance policies and in complete disregard of the realities surrounding the *772 human relationship of foster child and foster parent. I have serious concern with the analysis used by the majority not only because of the specific result reached in this case, but also because it casts doubt on the vitality of two firmly rooted principles in our lawthat an insurance contract will be construed in favor of the insured and that a term not defined within an insurance policy will be given its ordinary meaning.
The Glen Falls portion of this case involves the meaning of the term foster child as it appears within the four corners of an insurance policy, not as it appears in statutes setting forth the state's responsibility to protect abused and neglected children. I submit that the term "foster child" in the context of this case involves the human relationship of a foster child and foster parent, not a legal relationship created by the state removing a child from its home. This conclusion is reached based on traditional methods this Court has employed in analyzing ambiguous terms in an insurance contract.
The term "foster child" which is included in the definition of "family member" is not defined in the insurance policy at issue. Given the uncertainty regarding its meaning, "[i]t is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured." Syl. Pt. 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds, Potesta v. U.S. Fidelity & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998). In applying this standard, we give "[l]anguage in an insurance policy ... its plain and ordinary meaning," and the interpretation is made from the standpoint of "a reasonable person in the insured's position." Syl. Pts. 1 and 4, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986) (citation omitted), Syl. Pt. 1 overruled on other grounds, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). See also Restatement (Second) of Contracts § 211 comment e ("[C]ourts in construing and applying a standardized contract seek to effectuate the reasonable expectations of the average member of the public who accepts it."). This standard was established in large part because insurance contracts are usually contracts of adhesion where the insured is not in the position to negotiate the terms of the policy with the insurer. See Mitchell v. Broadnax, 208 W.Va. 36, 537 S.E.2d 882 (2000); Auber v. Jellen, 196 W.Va. 168, 469 S.E.2d 104 (1996).
The plain and ordinary meaning of a term such as foster child is generally found in a common dictionary. The phrase "foster child" is defined under the word "foster" in The American Heritage Dictionary of the English Language (1969) as "receiving, sharing, or affording parental care and nurture although not related through legal or blood ties." Id. at 519 (emphasis added). Such a common sense reading has been applied by a number of courts over the years. See e.g. In re Norman's Estate, 209 Minn. 19, 295 N.W. 63 (1940); Joseph v. Utah Home Fire Ins. Co., 313 Or. 323, 835 P.2d 885, 888 (1992) ("In the common understanding, the defining relationship is one of nurturing, supporting, rearing one of fosteringand not necessarily a `legal relationship.'"); see also 66 A.L.R. 5th 269 § 12, Annotation, Who is "Member" or "Resident" of Same "Family" or "Household" within No-fault or Uninsured Motorist Provisions of Motor Vehicle Insurance Policy (1999) (compilation of cases). This straightforward definition also reflects common experience.
Over the years many people with large hearts and wise ways have reached out to feed, clothe, shelter, nurture and love children not born of them, adopted by them or otherwise legally related to them. In turn, many of those children have in their adult years returned that love so freely given hence establishing the actual lifetime relationship of foster child and foster parent. Such relationships are not necessarily dependent on state intervention by our courts or our governmental agencies. The Glen Falls insurance policy as it defined family membermay be easily read to include such non-legal relationships by reason of its use of the term "foster child." The undisputed facts in this case clearly demonstrate that Appellant and Mr. Smith shared a human relationship which comports with the ordinary or commonly held definition of foster child/foster father. At the time relevant to this case, Mr. *773 Smith provided Appellant, at the least, shelter, some monetary support, companionship, shared meals and shared time.
Rather than looking to the plain meaning of the term "foster child," the majority announced in syllabus point five that "the terms `ward' and `foster child' as used in the definition of `family member' in an automobile insurance policy ... [are limited in meaning to] a legally recognized relationship."[2] It is hard to believe that a common person in the same position as Mr. Smith when he obtained the insurance policy would believe that some "legally recognized relationship" had to be in place in order to afford protection through the policy to those who were members of his household. The reasoning of the majority hardly favors the insured. I find it most difficult to understand why the majority, members of this Court who have given careful attention to honoring the best interests of families and family structures, could come to a conclusion which negates the human relationship that exists between a foster parent and foster child in order to deprive an insured person the benefits of an insurance contract purchased to protect himself and the members of his real family. The relationship of foster child and foster parent may be created in the course of a statutory abuse and neglect proceeding by court order, but long before this State created such proceedings, the foster child/foster parent relationship has been and continues to be forged by the freely given and received acts of love and caring common to many such relationships without any governmental involvement at all.
The majority also found that even if Mr. Smith had established the legally recognized relationship of foster child/foster parent, Appellant's age precluded coverage under the insurance policy because he was beyond the age of eighteen at the time the accident occurred. The age restriction makes no sense in the context of the other relationships listed in the policy because had Appellant been the adult child of the insured through blood, marriage or adoption and resided with the insured, then he would have clearly fallen within the insurance policy's internal definition of family member regardless of age. The majority's reliance on the fact that Appellant was over the age of majority as further reason for denying insurance coverage simply makes no sense in the context of the policy or the expectations of the insured.
While the foregoing reflects my serious reservations with the outcome involving the Glen Falls policy, I concur with the majority's affirmance of the lower court's grant of summary judgment for GMAC Insurance Company as the facts do not show that Appellant was a resident of his biological mother's household on the date of the accident for which he sought underinsured motorist coverage. Accordingly, I dissent, in part, and concur, in part, with the majority opinion.
STARCHER, J., concurring, in part, and dissenting, in part.
I concur with the majority's conclusion that GMAC Insurance Company had no duty to provide coverage to Johnny Combs. As this Court held in Farmers Mutual Ins. Co. v. Tucker, 213 W.Va. 16, 576 S.E.2d 261 (2002), a person can be an insured "resident" of multiple households for purposes of insurance coverage, and whether residency has been established is usually a question of fact for jury resolution. But to get by the summary judgment stage, the person has to make out a prima facie case of residency. There just wasn't anything in this record to convince me that Mr. Combs wasn't anything more than an occasional visitor to his mother's house. GMAC Insurance Company therefore had no responsibility to provide Johnny with coverage under his mother's insurance policy.
I dissent, however, to the majority's anti-family conclusion that Johnny Combs could never be an insurable resident of the household of Billie Joe Smith, Johnny's former stepfather. The majority opinion is based on the erroneous conclusion that "there has never been a legally recognized relationship" between Johnny Combs and Mr. Smith. This conclusion ignores long-standing precedent. It also establishes a short-sighted public *774 policy that increases insurance company profits at the expense of innocent children whose loving caretakers are ignorant of legal niceties. The lower court's grant of summary judgment to Glen Falls Insurance Company should have been reversed.
Nobody disputes the fact that Johnny Combs was ignored by his biological father, and that his biological mother put more time into her own healthcare than into raising Johnny. Instead, Johnny lived in Mr. Smith's house for upwards of fourteen years and called Mr. Smith his "dad." Mr. Smith reciprocated and raised the boy as his own son. Anybody who looked at this situation would applaud the fact that a biological stranger to Johnny stepped forward and took on the moral, financial and emotional burden of raising this young man.
In times past, this Court has recognized the existence of these informal parent-child relationships, and given these relationships equitable legal status. For most other legal situations, Johnny Combs would be considered a "resident" of his former stepfather's household.
The majority opinion takes a step back and says "so what" and punishes Mr. Combs for the sins of his biological father and mother. Johnny Combs is also punished because his "adopted" father, Mr. Smith, didn't hire a team of lawyers to terminate the parental rights of those biological parents and formally adopt the boy. Mind you, this punishment extends only to protecting insurance companies by denying Johnny Combs un-or under-insured insurance coverage through Mr. Smith's policy. To impose this punishment on Johnny Combs, the majority opinion ignores well-established law that makes Johnny's and Mr. Smith's situation a "legally recognized relationship."
In 1978, this Court first recognized that Mr. Combs could potentially inherit from Mr. Smith's estate upon Mr. Smith's death. In Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1978), we found a person could prove they had been "equitably adopted" by a decedent by showing that, from an age of tender years, they had stood in a position exactly equivalent to that of a formally adopted or natural child. If the person showed they had been equitably adopted by the decedent, then the person could inherit just as could a formally adopted or natural child. This rule was crafted in recognition of the fact that many "informal" parent-child relationships arise in our society, relationships that are never given a statutory or legal imprimatur:
While formal adoption is the only safe route, in many instances a child will be raised by persons not his parents from an age of tender years, treated as a natural child, and represented to others as a natural or adopted child. In many instances, the child will believe himself to be the natural or formally "adopted" child of the "adoptive" parents only to be treated as an outcast upon their death. We cannot ascertain any reasonable distinction between a child treated in all regards as an adopted child but who has been led to rely to his detriment upon the existence of formal legal paperwork imagined but never accomplished, and a formally adopted child. Our family centered society presumes that bonds of love and loyalty will prevail in the distribution of family wealth along family lines, and only by affirmative action, i.e., writing a will, may this presumption be overcome. An equitably adopted child in practical terms is as much a family member as a formally adopted child and should not be the subject of discrimination. He will be as loyal to his adoptive parents, take as faithful care of them in their old age, and provide them with as much financial and emotional support in their vicissitudes, as any natural or formally adopted child.
162 W.Va. at 508, 250 S.E.2d at 373.
In addition to ignoring Johnny Combs' potential rights to inherit from Mr. Smith as his equitably adopted child, the majority opinion also ignores Mr. Smith's status as a "psychological parent" to Johnny Combs. We recently stated, in Syllabus Point 3 of Tina B. v. Paul S., ___ W.Va. ___, 619 S.E.2d 138 (No. 31855, June 17, 2005), that
A psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides *775 for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian.
Mr. Smith appears to have fit the bill as Johnny Combs'"psychological parent," and as such had clear legal standing to act as his "parent." The majority's opinion takes a disastrous public-policy detour away from Tina B. and says that while Mr. Smith could provide for the boy's "emotional and financial support," he could not provide him with insurance coverage.[1] This result is not only absurd, but dangerous to the well-being of children who are being raised by someone who is not their biological or legal guardian.
Last, but not least, in 1988 this Court held that stepchildren who do not have a "legally recognized relationship with the purported parent or guardian" can be considered as "children" of the parent or guardian for purposes of being beneficiaries of a life insurance policy. In Transamerica Occidental Life Ins. Co. v. Burke, 179 W.Va. 331, 368 S.E.2d 301 (1988), a parent (Richard Wayne Nelson) was married twice. In the first marriage, the parent fathered three biological children. In the second marriage, no children were born, but for fifteen years the parent lived together with his wife and her three children from her prior marriage. When the parent died, he had an employee life insurance plan and an employee pension plan designating his wife as beneficiary of 50% of the death benefits under both plans. The other beneficiary was designated as "50%children."
The issue before the Court in Burke was whether the term "children" meant only the natural children of the parent, or included the parent's stepchildren as well. The record indicated that the parent provided food, shelter, clothing and transportation for the stepchildren, disciplined the stepchildren, paid for health insurance for the stepchildren, and claimed the stepchildren as dependents on his income tax returns. The parent attempted to adopt the stepchildren, but before the adoptions could be completed, the parent "was laid off from his job and he decided, for financial reasons, not to pursue the adoptions until he was employed again." 179 W.Va. at 334, 368 S.E.2d at 304.
The Court conceded that the "term `children' ordinarily does not include stepchildren, but it may include stepchildren when a contrary intent is found from additional language or circumstances." Syllabus Point 2, Burke. Looking to the parent's use of the term "children" when designating the beneficiaries to his death benefits, the Court found the designation ambiguous, and so turned to examine the parent's factual circumstances when he designated his beneficiaries. Looking at those circumstances, the Court concluded that the stepchildren were "children" who were entitled to share death benefits.
Why the majority opinion turned its back on these precedents is beyond me. The facts presented are substantial enough to show that Johnny Combs was, beyond question, a de facto "child" of Mr. Smith's. There are uncountable numbers of similar cases in this State, where children are being raised by caring grandparents, siblings, friends and neighbors. The majority opinion ignores the facts and ignores the true status of our society. The majority opinion imposes a rigid legalistic standard which does nothing to carry out any legislative policy, nothing to protect these voluntary caregivers, and nothing to protect these children.
The majority opinion is not "for the sake of the kids;" it is purely for the sake of insurance companies. I therefore respectfully dissent to that portion of the opinion pertaining to Glen Falls Insurance Company.
DAVIS, J., concurring.
I fully concur with the majority's Opinion in this case. Nevertheless, I feel the need to *776 write separately to address the issues raised by my dissenting colleagues and to clarify the misconceptions that may arise therefrom.
Both of my dissenting brethren have suggested that coverage for Johnny Combs existed under Billie Joe Smith's Glen Falls policy of motor vehicle insurance because Johnny is Mr. Smith's "foster child" or "ward." With this position, I fervently disagree. In the first dissenting opinion, my colleague misapprehends the meaning of the term "foster child" as that phrase is intended by the subject policy language. See generally sep. op. of C.J. Albright. Explaining the longtime nurturing relationship that exists between Johnny and Mr. Combs, the dissent interprets the existing relationship between these two men as that of a foster child-foster parent arrangement. See id. Rather, the actual nature of the men's relationship is more in line with the status of a psychological parent relationship which we recently recognized in Syllabus point 3 of Tina B. v. Paul S., ___ W. Va. ___, 619 S.E.2d 138 (No. 31855 June 17, 2005). The simple fact of the matter is, however, that the Glen Falls policy does not provide coverage for family members who enjoy merely a psychological relationship. The only familial relationships that may beget coverage in the instant proceeding are those of "foster child" and "ward," neither of which definitions Johnny can satisfy.
More importantly, in explaining the alleged foster parent-foster child relationship between Mr. Smith and Johnny, my dissenting colleague overlooks a critical fact: the definition of a "foster child" presupposes that that person is a "child." Under the facts before the Court, it is clear that Johnny is not a child and thus is not Mr. Smith's "foster child." In defining the term "child," Black's Law Dictionary states that a "child" is, "[a]t common law, a person who has not reached the age of 14, though the age now varies from jurisdiction to jurisdiction." Black's Law Dictionary 232 (7th ed.1999). Thus, under this definition, a child is anyone under the age of 14, if not provided for differently by statutory law. By statute and as a general matter, in West Virginia a "child" "means any person under eighteen years of age." W. Va.Code § 49-1-2 (1997) (Repl.Vol.2004).[1]
Incorporating this definition of the word "child" into the dissenter's construction of the term "foster child" to arrive at a complete interpretation thereof suggests that the plain, ordinary meaning of the phrase "foster child" contemplates any person under the age of eighteen who is "receiving . . . parental care and nurture although not [from someone who is] related through legal or blood ties." Sep. op. of C.J. Albright, 217 W.Va. at 225, 617 S.E.2d at 772 (emphasis in original) (internal quotations and citations omitted). Applying this definition to the facts before the Court, the record in this case is quite clear that Johnny was twenty-two years old when the accident occurred. Thus, even under the most liberal interpretation of the term "foster child" it is clear that Johnny is not and was not a "foster child" under Mr. Smith's Glen Falls policy and, thus, was not entitled to coverage thereunder. Any other construction would yield the absurd result of denominating a twenty-two year old man, who has no mental impairments, a child for the limited purpose of insurance coverage when, for all other intents and purposes, this same twenty-two year old man is a full-fledged adult and functioning member of society. The majority was correct to reject such an interpretation. See Legg v. Johnson, Simmerman & Broughton, L.C., 213 W.Va. 53, 59, 576 S.E.2d 532, 538 (2002) (per curiam) ("[T]he law itself indicates that [policy language] should not be construed to reach absurd results." (citation omitted)).
The second dissenter suggests, instead, that the Court should have afforded "ward" or "foster child" status to Johnny because he is the de facto child of Mr. Smith, or, alternatively, because Mr. Smith is Johnny's psychological *777 parent. See generally sep. op. of J. Starcher. While my colleague can apparently conceive of the aforementioned constructions of the subject policy of insurance so as to afford coverage where coverage does not, in fact, exist, such constructions are plainly wrong. When interpreting the language of an insurance policy, we are constrained to limit our consideration to the terms employed by the contract. See Tackett v. American Motorists Ins. Co., 213 W.Va. 524, 528, 584 S.E.2d 158, 162 (2003) ("[T]he terms of the pertinent insurance contract govern the parties' relationship and define the scope of coverage[.]"). Unfortunately, however, neither the term "de facto child" nor the phrase "psychological parent" refers to cognizable familial relationships for which coverage is provided under the Glen Falls policy.
First, my dissenting colleague suggests that because Johnny was Mr. Smith's de facto child coverage should have been provided by the policy. On this point, I disagree and reaffirm my belief that the majority Opinion correctly decided this issue. The policy language in question simply does not provide coverage for a de facto child; such a relationship is not among the enumerated relationships under which coverage may be had. Whether Johnny may or may not have been Mr. Smith's de facto child is not a matter presently before the Court; whether he is a foster child or a ward is. Because the policy language at issue does not afford coverage to an insured's de facto child, this Court is not permitted to view the policy in this manner or to rewrite the policy to give it such effect. In short, rewriting insurance policies is not and has never been the role of this Court. See Payne v. Weston, 195 W.Va. 502, 507, 466 S.E.2d 161, 166 (1995) ("We will not rewrite the terms of the policy; instead, we enforce it as written."). Stated otherwise, this Court's authority to construe language in an insurance policy is not a "license. . . to . . . rewrite [policy] language on the basis that, as written, it produces an undesirable. . . result." Taylor-Hurley v. Mingo County Bd. of Educ., 209 W.Va. 780, 788, 551 S.E.2d 702, 710 (2001). The majority resisted such temptation and with that course I wholeheartedly agree.
My dissenting colleague alternatively suggests that coverage exists under the Glen Falls policy because Mr. Smith is Johnny's psychological parent and that to find, as the majority did in Syllabus point 5, that coverage is provided only for the "legally recognized relationship[s]" of "ward" and "foster child" strays from this Court's recent decision in Tina B. v. Paul S., ___ W. Va. ___, 619 S.E.2d 138 (No. 31855 June 17, 2005). This reasoning is misplaced and misinterprets the full import of Tina B. In that case, we very clearly and explicitly found that a psychological parent is not a legal parent within the contemplation of W. Va.Code § 48-1-232 (2001) (Repl.Vol.2004).
Furthermore, the dissent suggests also that "Mr. Smith appears to have fit the bill as Johnny Combs' `psychological parent,' and as such had clear legal standing to act as his `parent.'" Sep. op. of J. Starcher, 217 W.Va. at 229, 617 S.E.2d at 775. Again, however, the express meaning of the Tina B. opinion has been misunderstood. In Tina B., this Court did not find that a psychological parent has standing to act as a child's parent in the limited custodial proceeding context within which that case was decided. Rather, Tina B. qualifiedly found that, "[i]n exceptional cases and subject to the court's discretion, a psychological parent may intervene in a custody proceeding brought pursuant to W. Va.Code § 48-9-103 (2001) (Repl.Vol.2004) when such intervention is likely to serve the best interests of the child(ren) whose custody is under adjudication." Syl. pt. 4, Tina B., ___ W. Va. ___, 619 S.E.2d 138 (emphasis added). Such limited right of potential intervention is vastly different from the unlimited standing which Tina B. sought in that case and which my dissenting colleague seems to suggest we recognized therein.
Finally, as I explained with regard to the dissent's de facto parent argument, the policy language at issue in this case does not provide coverage for the psychological child of an insured. In the absence of the enumeration of such a familial relationship as a basis for coverage, the majority correctly abstained from conducting such an inquiry to determine whether, in fact, such a relationship exists and, if it does, extending coverage on this basis.
*778 For the foregoing reasons, I respectfully concur with the Opinion of the Court.
NOTES
[1] Billie Joe Smith and Robin Smith were also defendants below; however, they did not join Johnny Combs in the Petition for Appeal of the Circuit Court's Order and have not appeared as Appellants before this Court.
[2] The two civil actions were consolidated by the Circuit Court of Wyoming County in an agreed order entered on or about April 22, 2003.
[3] Appellant Combs was actually involved in two separate motor vehicle accidents: January 29, 2002 and April 26, 2002. In the later accident, Appellant was a passenger in a vehicle driven by Robin Smith who was insured under the same Glen Falls policy. Appellant filed a claim against the driver of the other vehicle in the April 26, 2002 accident. That claim was settled by the other driver's insurer for less than policy limits. Accordingly, Appellant now has no claims against either GMAC or Glen Falls for the April 26, 2002 accident.
[4] It appears from the record that Appellant Combs lived almost continuously with Billie Joe Smith from the time Appellant was eight or ten years old. Upon turning eighteen, Appellant lived outside of the State of West Virginia for some period of time in connection with his employment.
[5] The record is not clear if Leneice Combs and Billie Joe Smith resided together upon resuming their relationship or, if so, when they ceased co-habitation.
[6] While Glen Falls challenged Comb's qualification for underinsured motorist coverage under its policy with Billie Joe Smith on the grounds that he was neither a "ward" nor a "foster child" of Smith, Glen Falls did not challenge Appellant's residency in Billie Joe Smiths' household.
[7] Appellant Combs is neither the biological nor the adopted son of Billie Joe Smith. In his deposition, Combs referred to Billie Joe Smith as his "daddy." When asked why it was that Combs called Smith his "daddy", Smith replied in his deposition, "Well, he sort of adopted me." Smith further related that Combs commenced living with him when he was around eight or ten years of age and that the relationship had continued, at least until the date of Smith's deposition, March 25, 2003. Smith stated that the reason Combs started living with him at the age of eight or ten was because "[h]e just wanted to stay with me and I couldn't deny him the right." Smith was asked, "Do you consider [your home] to be his [Combs'] home?" Smith replied "Yes, sir."
[8] The policy at issue in Matthews provided underinsured motorist coverage for the person named in the policy, who was described as "[y]ou, your, yourself means the person named on the Declarations page and includes the spouse if a resident of the same household. This also means a member of the family who is a resident of the household and includes a ward or foster child." Matthews, 25 P.3d at 452. The terms "family" and "member of the family" were not defined in the policy. Id. at 453. The court concluded that, in the context of the policy, the average insured would read "family" in the traditional sense, that is "connected by blood, affinity or law." Id.
[9] The policy defined the term "relative" as "a person related to the named insured by blood, marriage or adoption, including a ward or foster child, who is a resident of the same household." Gile, 524 S.E.2d at 645. While the court looked to Virginia statutory law in determining the meaning of the term "foster child" when determining the scope of the term for the purpose of underinsured motorist coverage, it looked to the context in which the term is used in determining the scope of medical benefits coverage. Id. at 664-65, 524 S.E.2d 642.
[10] The policy at issue defined the term "household member" as "anyone living in your [i.e., that of the named insured] household who is related to you by blood, marriage or adoption. This includes wards or foster children." Pisani, 560 N.E.2d at 155-6.
[11] This Court is not currently presented with a situation wherein the guardianship of a minor child has been transferred to another by the minor's biological parent by execution of a verified or notarized document, though not court approved. Therefore, the Court reserves for another day an opinion as to whether, in such a circumstance, the minor would qualify as a "ward" for purposes of the guardian's automobile insurance policy.
[12] The opinions quoted were, in essence, set forth in their entirety in Appellant's brief, as Appellant's argument without acknowledgment that the language therein derive from a published opinion. The Court takes this opportunity to remind parties that extensive quotes of court opinions used in support of a party's position should be clearly identified as a quote, including the use of the appropriate citations.
[13] The Court in Gambino did, however, rely upon the decision in Joseph v. Utah Home Fire Ins. Co., 313 Or. 323, 835 P.2d 885 (1992), which rejected the legal relationship analysis, finding that the term "foster child" was ambiguous in the context in which it was used. Joseph, 835 P.2d at 886-87. At issue was whether personal injury protection coverage and uninsured motorist coverage were available to a six-year old child living with her mother and the insured under the insured's policy. Id. at 885-86. The definition of "relative" in the Personal Injury Protection section of the policy was slightly different than the general definition of "family member" utilized for uninsured motorists coverage. The Personal Injury Protection definition included the phrase "related to the named insured by... adoption (including a ward or foster child)". The general definition of "family member" stated "related to you by blood, marriage or adoption.... This includes a ward or foster child." Id. at 886. The court noted that the term "foster child" was grammatically related to the term "adoption" [in the Personal Injury Protection definition] and, as the definition of foster child "specifies that a foster child is not related to the foster parent by adoption" an ambiguity is created. Id. Moreover, the court in Joseph expressly limited its holding to "construing the term under this policy" and "expressed no opinion as to the meaning of `foster child' in any other context." Id. at 899, 835 P.2d 885 (emphasis in original). The ambiguity noted in Joseph is not created by the context in which the term is used in the Glen Falls policy at issue.
[14] To adopt the reasoning employed by Gambino and urged by Combs would require this Court accord legal recognition to all types of "de facto" familial relationships, be it adult-child type relationships, common law marriages, or roommates who consider themselves to be like siblings. Where the legislature has not conferred legal recognition on a de facto relationship, this Court will likewise refuse to confer such legal recognition in determining the scope of available insurance coverage. See, W. Va.Code § 48-5-707 (2001) (reduction or termination of spousal support because of de facto marriage).
[15] In footnote 10 of Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 465 S.E.2d 399 (1995) we noted, "[a] canon of statutory construction called noscitur a sociis, which holds that a word is known by the company it keeps, is pertinent here. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S. Ct. 2407, 2411, 132 L. Ed. 2d 597, 613 (1995); Darlington v. Mangum, 192 W.Va. 112, 450 S.E.2d 809 (1994); Banner Printing Co. v. Bykota Corp., 182 W.Va. 488, 388 S.E.2d 844 (1989); Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975). The fact that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well." Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 311, 465 S.E.2d 399, 413 (1995). Though the doctrine of noscitur a sociis generally is invoked in interpreting words contained in a single statute, we believe its principles may here be invoked to recognize that where the Legislature consistently defines a term in a certain manner throughout the West Virginia Code, the term should receive a consistent interpretation where it has not otherwise been defined.
[1] Glen Falls Insurance Company is hereinafter referred to as "Glen Falls."
[2] I assume the majority does not intend to interfere with the rights of parties to a contract to agree to a different definition of these terms.
[1] While the majority's opinion is confined to un-and under-insured motorist coverage, I am horrified to think its reasoning may be extended by insurance companies to health insurance coverage. The result could be that untold numbers of guardians buying health insurance to protect their wards, only to learn upon filing a claim that because the de facto parent-child relationship has no formally recognized legal stamp of approval, the child is not entitled to coverage.
[1] A few exceptions to this general rule do exist. See, e.g., Syl. pt. 1, in part, State ex rel. Dep't of Health & Human Res., Bureau of Child Support Enforcement v. Farmer, 206 W.Va. 249, 523 S.E.2d 840 (1999) ("A child [over or] under the age of sixteen who marries shall be emancipated by operation of law from his or her parents[.]"); Facilities Review Panel v. Greiner, 181 W.Va. 333, 336, 382 S.E.2d 527, 530 (1989) ("[Y]ouths between the ages of eighteen and twenty who are subject to continuing juvenile jurisdiction under W. Va.Code, 49-5-2 [1978] are defined as children for purposes of article 49, W. Va.Code [.]"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743974/ | 771 So. 2d 85 (2000)
Hillard & Linda Sue GRIFFITH
v.
Conrad & Judy Wright CATHEY, et al.
No. 2000-C-1875.
Supreme Court of Louisiana.
October 6, 2000.
Denied.
CALOGERO, C.J., and VICTORY, J., would grant the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366839/ | 470 F.Supp. 495 (1979)
In re AIRPORT CAR RENTAL ANTITRUST LITIGATION.
No. MDL 338.
United States District Court, N. D. California.
April 24, 1979.
*496 *497 Ronald S. Adelman, John R. Dwyer, Jr., Curtis W. Carlsmith, Honolulu, Hawaii, for plaintiff Pacific Auto Rental Corp.
Fujiyama, Duffy, Fujiyama & Koshiba, Wallace S. Fujiyama, Rodney M. Fujiyama, Paul H. Sato, Honolulu, Hawaii, Phillips, Nizer, Benjamin, Krim & Ballon, Robert R. Salman, Martin Stein, New York City, for defendant Budget Rent A Car Systems, Inc.
RENFREW, District Judge.
Plaintiff Pacific Auto Rental Corporation, doing business as Dollar Rent A Car Systems of Hawaii, Inc. ("Pacific Auto"),[1] seeks disqualification of two law firms retained by defendant Budget Rent A Car Systems, Inc. ("Budget"), to represent Budget in an antitrust suit brought by Pacific Auto against Budget and various other car rental companies. This suit is one of several antitrust cases that have been consolidated pursuant to the procedures governing multidistrict litigation. Pacific Auto's suit ("the Hawaii action") was originally filed in the United States District Court for the District of Hawaii and was transferred to this Court on November 15, 1978, by the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407.
Pacific Auto has moved to disqualify the Hawaii law firm of Fujiyama, Duffy, Fujiyama & Koshiba ("the Fujiyama firm") and their co-counsel, the New York law firm of Phillips, Nizer, Benjamin, Krim & Ballon ("Philips Nizer"). Phillips Nizer was originally retained to represent Budget as plaintiff in an action against Hertz Corporation, Avis Rent A Car System, Inc. and National Rent A Car System, Inc., filed in the Northern District of California in April 1977.[2] In June 1978, when the Hawaii action was filed by Pacific Auto, Budget retained Phillips Nizer to act as defense counsel in that case. Under Local Rule 1(e) of the District of Hawaii, an attorney who is not an active member of the District of Hawaii bar may be granted permission to participate in a particular case before the United States District Court for the District of Hawaii only if that attorney associates as co-counsel an active member of the bar of the District of Hawaii. In order to comply with Local Rule 1(e), in July 1978, Phillips Nizer associated the Fujiyama firm as co-counsel in the Hawaii action.
Pacific Auto's motion to disqualify the Fujiyama firm and Phillips Nizer is based upon the Fujiyama firm's prior relationship with Pacific Auto. The evidence presented *498 at the hearing on the motion for disqualification, held February 15, 1979, demonstrated that the Fujiyama firm had received confidential information from Pacific Auto and had agreed to represent Pacific Auto on a matter substantially related to the issues presented in Pacific Auto's lawsuit against Budget. Consequently, the Fujiyama firm must be disqualified from representing Budget in the Hawaii action. Phillips Nizer, however, need not be disqualified. There is no indication in the record that Phillips Nizer directly or indirectly received any confidential information regarding Pacific Auto from the Fujiyama firm. Nor is there any evidence that Phillips Nizer knew of the Fujiyama firm's prior representation of Pacific Auto on a matter related to the Hawaii action when they associated the Fujiyama firm as co-counsel. In light of the particular facts of this case, set forth more fully below, Phillips Nizer's role as co-counsel to the disqualified Fujiyama firm does not compel Phillips Nizer's disqualification.
Factual Background
In October or November 1976, two officers of Pacific Auto, Harry Mehtarian and Alan Robin, met with attorney Wallace S. Fujiyama ("Fujiyama") of the Fujiyama firm and asked Fujiyama to represent Pacific Auto in its efforts to obtain an on-airport car rental concession at the Honolulu International Airport ("Honolulu Airport"). At the hearing on the disqualification motion, Robin, Vice-President of Pacific Auto, testified regarding this meeting with Fujiyama. According to Robin, the primary purpose of the meeting was to discuss entry at the Honolulu Airport, although some mention may also have been made of the Hilo Airport. Pacific Auto had unsuccessfully attempted to obtain a Honolulu Airport car rental concession in 1974 and believed that Budget, Pacific Auto's principal competitor in the discount car rental market in Hawaii, had been involved in blocking their entry. Robin and Mehtarian asked Fujiyama to speak with public officials involved in granting on-airport car rental concessions in order to persuade them that it would be in the public interest to have a Dollar Rent A Car concession at the Honolulu Airport. In the course of this conversation, Robin and Mehtarian discussed with Fujiyama Pacific Auto's corporate goals, financial strengths and weaknesses, use of tax loss carry-forward, pricing and marketing strategy, and fleet size, emphasizing the importance to the company of obtaining a concession at the Honolulu Airport. Robin testified that much of the information imparted to Fujiyama was information that Pacific Auto did not generally make known to the public and would not want to disclose to its competitors. In addition to providing Fujiyama with this background information on the company, Robin and Mehtarian gave Fujiyama a file containing documents related to the company's efforts to obtain on-airport car rental concessions in Hawaii. This file included documents from the legal file kept by the attorney who had represented the company in its earlier attempts to gain entry at the Honolulu Airport.
Although Fujiyama did not wish to establish a fee arrangement at this initial meeting, he explained his usual practices regarding fees and he agreed to contact public officials who might be able to assist Pacific Auto in obtaining a Honolulu Airport car rental concession. Fujiyama explained that it could take some time before he made any progress on the matter. Robin testified that the entire meeting with Fujiyama lasted 1 to 1½ hours.
The affidavit of Harry Mehtarian, submitted in support of plaintiff's motion to disqualify, corroborates Robin's testimony concerning the meeting with Fujiyama. Mehtarian, President of Pacific Auto, specifically states that Fujiyama agreed to assist Pacific Auto in its efforts to obtain a concession at the Honolulu Airport and that during the conversation with Fujiyama, Robin and Mehtarian had emphasized their belief that Budget had opposed Pacific Auto's entry at that airport. The affidavit further states that confidential matters were discussed at the meeting with Fujiyama and that a file regarding Pacific Auto's *499 efforts to obtain an on-airport car rental concession was given to Fujiyama.
Mehtarian's affidavit also describes a later meeting with Rodney Fujiyama, the son of Wallace Fujiyama and an attorney at the Fujiyama firm. According to the affidavit, approximately two months after the initial meeting with Wallace Fujiyama, Mehtarian inquired about the progress being made on the concession application and was advised by Rodney Fujiyama that his father was working on the matter. At this meeting, Rodney Fujiyama and Mehtarian discussed the possibility of the Fujiyama firm handling all of Pacific Auto's and Mehtarian's legal business.
After that meeting, both Mehtarian and Robin repeatedly attempted to contact Wallace Fujiyama by telephone, but they were told that he was unavailable and their calls were not returned. In approximately March 1977, Robin called Dr. Richard Lam, a friend of Fujiyama's who had originally introduced Robin to Fujiyama, and asked Lam to inquire whether Fujiyama had made any progress on the concession application. Robin testified that Lam called back and reported that he had spoken to Fujiyama, who had said that he was working on the matter. Finally, Robin became concerned about the delay and decided he should consult another attorney. In June 1977 Pacific Auto retained the firm of Carlsmith, Carlsmith, Wichman & Case to assist the company in its efforts to gain entry at various Hawaii airports. Upon request, the Fujiyama firm transferred the file obtained from Robin and Mehtarian to the Carlsmith firm. The Fujiyama firm never billed Pacific Auto for its legal services.
Prior to the fall of 1976, the Fujiyama firm had done legal work for Transamerica, the parent corporation of Budget, and Fujiyama states in his affidavit that he disclosed this fact to Robin and Mehtarian at their meeting. In January 1977, after Fujiyama had agreed to represent Pacific Auto, the Fujiyama firm began to represent Budget on various matters, including an antitrust suit that, according to Fujiyama, was not related to this antitrust suit. In June 1978 the Fujiyama firm agreed to serve as co-counsel in the Hawaii action. In doing so, the firm undertook representation of Pacific Auto's adversary in a suit involving issues that are substantially related to the matter on which Fujiyama agreed to represent Pacific Auto.[3]
The complaint in the Hawaii action alleges that Budget and other defendant car rental companies conspired to restrain trade unreasonably and to monopolize trade in the market of car rental concessions on the premises of the Honolulu Airport, in violation of Sections 1 and 2 of the Sherman Act and in violation of antitrust laws of the State of Hawaii. Among other allegations, the complaint states that Budget and the other defendants "[o]pposed in bad faith Dollar's [Pacific Auto's] efforts and applications for entry into the on-airport car rental market at Honolulu International Airport."
Plaintiff's Motion to Disqualify the Fujiyama Firm
Plaintiff's motion to disqualify the Fujiyama firm is based primarily upon Canon 4 of the ABA Code of Professional Responsibility, which states that "[a] lawyer should preserve the confidences and secrets of a client," and upon the Disciplinary Rules and Ethical Considerations pertaining to that canon. Although the ABA Code may be relied upon as setting forth basic principles of legal ethics, the Court notes that under the Local Rules of the Northern District of *500 California, attorneys practicing before this Court are governed by the Rules of Professional Conduct of the State Bar of California. Local Rule 110-4 provides in pertinent part:
"Every member of the bar of this court and any attorney permitted to practice in this court under Local Rule 110-2 shall be familiar with and comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and decisions of any court applicable thereto * * *."
Under the Rules of Professional Conduct of the State Bar of California, the Fujiyama firm must be disqualified. Rule 4-101 states:
"A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client."
The primary purpose of this rule is to protect the confidential relationship that exists between attorney and client. Goldstein v. Lees, 46 Cal.App.3d 614, 619, 120 Cal.Rptr. 253, 255 (1975); Jacuzzi v. Jacuzzi Bros., Inc., 218 Cal.App.2d 24, 28, 32 Cal.Rptr. 188, 191 (1963). Under Section 6068(e) of the California Business and Professions Code, "It is the duty of an attorney * * * [t]o maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." In keeping with the policies underlying Section 6068, the California courts have interpreted Rule 4-101 and its predecessor, former Rule 5, as prohibiting an attorney from accepting employment that threatens the revelation or use of a former client's confidences. See Goldstein v. Lees, supra, 46 Cal.App.3d at 620, 120 Cal.Rptr. at 256. The California Supreme Court has stated that Rule 4-101, then Rule 5, should be construed as providing that
"`the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of the former employment, but in every case when, by reason of such subsequent employment, he may be called upon to use such confidential information.'" Sheffield v. State Bar of California, 22 Cal.2d 627, 630, 140 P.2d 376, 378 (1943), quoting Galbraith v. State Bar of California, 218 Cal. 329, 23 P.2d 291, 292 (1933).
Therefore, although this Court does not find that any member of the Fujiyama firm revealed any confidential information received from Pacific Auto or used that information to Pacific Auto's disadvantage in the case at bar, the Court nevertheless concludes that the Fujiyama firm must be disqualified from representing Budget in the Hawaii action. Absent the informed and written consent of Pacific Auto, such representation violates Rule 4-101 of the California Rules of Professional Conduct.[4]
*501 The Fujiyama firm opposes the motion for disqualification on several grounds. One of their primary arguments is that to the best of Wallace Fujiyama's recollection, the meeting with Robin and Mehtarian concerned Pacific Auto's desire to gain access to the Hilo Airport, rather than the Honolulu Airport. This is directly contradictory to the very credible testimony of Robin. Robin acknowledged that the Hilo Airport may have also been discussed, but he asserted that the primary purpose of the meeting was to discuss Pacific Auto's prospects of obtaining a concession at the Honolulu Airport. The Fujiyama firm does state in their brief on the disqualification issue that "[t]he Fujiyama Firm has admitted that they are human, that there could be an error, and that the substantial portion of their Affidavits are based upon their best recollection of two 1976 events or from an investigation of their records." On the basis of Robin's oral testimony and Mehtarian's affidavit, this Court concludes that Robin and Mehtarian did discuss with Fujiyama Pacific Auto's past unsuccessful efforts to gain entry to the Honolulu Airport and their desire to obtain a concession at that airport. As these matters are directly related to Pacific Auto's suit against Budget, the Fujiyama firm is prohibited from representing Budget in that lawsuit.
The Fujiyama firm also argues that disqualification is unnecessary because the firm never represented Pacific Auto in litigation and because some of the information Pacific Auto claims to have conveyed to Fujiyama was a matter of public record. This Court cannot conclude that disqualification is inappropriate simply because Fujiyama's representation of Pacific Auto did not involve litigation. As to the confidential nature of the information imparted by Pacific Auto, cases dealing with disqualification have consistently stated that the fact that information provided by the former client could have been obtained through discovery or through inspecting public records is not a sufficient ground for denying a motion for disqualification. See, e. g., NCK Organization, Ltd. v. Bregman, 542 F.2d 128, 133 (2 Cir. 1976); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 572-573 (2 Cir. 1975).
The Fujiyama firm's briefs also emphasize that the firm never reached a fee agreement with Pacific Auto and never billed Pacific Auto for any legal services. In fact, the evidence before this Court suggests that no services were ever performed. Fujiyama states in his affidavit that he did not even review the file of written materials received from Pacific Auto. Although there certainly was very limited contact between the Fujiyama firm and Pacific Auto, the evidence shows that the Fujiyama firm agreed to represent Pacific Auto in its efforts to obtain a car rental concession at the Honolulu Airport and received confidential information from Pacific Auto. Therefore, the Fujiyama firm must be disqualified.
Plaintiff's Motion to Disqualify the Phillips Nizer Firm
Plaintiff's motion to disqualify the Phillips Nizer firm presents a more difficult issue. Plaintiff contends that disqualification is necessary because attorneys from the Fujiyama firm, in dealing with Phillips Nizer as co-counsel, may have consciously or unconsciously disclosed certain confidential information obtained from Pacific Auto. Plaintiff in effect is asking the Court to presume that the confidential information obtained by Fujiyama was conveyed to Phillips Nizer. Furthermore, plaintiff argues that disqualification is necessary because Phillips Nizer's association as co-counsel with a firm that must be disqualified created an appearance of professional impropriety, in contravention of Canon 9 of the ABA Code of Professional Responsibility.
The parties have cited several cases dealing with the issue of disqualification of co-counsel. The cases state that disqualification of one firm does not automatically compel disqualification of the firm's co-counsel. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 235 (2 Cir. 1977); Akerly v. Red Barn System, Inc., 551 *502 F.2d 539, 543 (3 Cir. 1977). Rather, the particular facts of each case must be considered in order to determine whether disqualification is warranted. The cases cited by the parties are all distinguishable from the case at bar. Although they provide insight into the factors courts have considered in ruling on motions to disqualify co-counsel, none of the cases presents a fact situation sufficiently similar to the instant case to provide direct guidance with respect to the motion to disqualify the Phillips Nizer firm.
In this case, the disqualified firm's interaction with the former client was extremely limited. Although the contact was not so insignificant that the Fujiyama firm should be permitted to represent Pacific Auto's adversary on a related matter, the limited nature of the relationship between Fujiyama and Pacific Auto does affect this Court's ruling on the motion to disqualify Phillips Nizer. The evidence presented to this Court establishes that Robin and Mehtarian met with Fujiyama for only 1 to 1½ hours. It appears that Fujiyama never did any further work on behalf of Pacific Auto, particularly since Fujiyama declared in his affidavit that he did not even review the materials in the file received from Pacific Auto. Fujiyama never reported to Mehtarian or Robin that he made any progress in obtaining an on-airport concession, and Pacific Auto was never billed for his services.
Furthermore, there is no evidence whatsoever that any member of the Fujiyama firm conveyed any confidential information concerning Pacific Auto to Phillips Nizer. Robert Salman, the Phillips Nizer attorney who has assumed primary responsibility for the Hawaii action, states in his affidavit that Fujiyama told him in July 1978 that Fujiyama had once been visited by Mehtarian on a matter unrelated to the Hawaii action, but that nothing had come of the meeting in the way of legal representation. Salman's affidavit also states that after Pacific Auto's attorneys brought the disqualification issue to Salman's attention, he contacted the Fujiyama firm and was told that Fujiyama did not remember Mehtarian ever mentioning Budget or the Honolulu Airport, although he did recall Pacific Auto's interest in obtaining a concession at the Hilo Airport.
Salman declares that to the best of his knowledge no confidential information concerning Pacific Auto has ever been revealed to members of the Phillips Nizer firm. Clearly, it would be very difficult for Phillips Nizer to produce affirmative proof that they had not received such information. The record certainly does not suggest that Phillips Nizer associated the Fujiyama firm as co-counsel because of the firm's prior relationship with Pacific Auto. Rather, Salman's affidavit indicates that Phillips Nizer had no reason to believe that the Fujiyama firm's representation of Budget would create a conflict of interest.
If this Court were to impute the knowledge of Fujiyama to co-counsel, the Court would be very close to adopting a rule of automatic disqualification of co-counsel. Such a rule would not accord sufficient weight to factors counseling against disqualification. Although courts must preserve the high standards of the legal profession, courts should also consider the client's right to choose his counsel and the harm to the client caused by an order of disqualification. The Court of Appeals for the Second Circuit recently stressed this consideration:[5]
"A client whose attorney is disqualified incurs a loss of time and money in being compelled to retain new counsel who in turn have to become familiar with the prior comprehensive investigation which is the core of modern complex litigation. *503 The client moreover may lose the benefit of its longtime counsel's specialized knowledge of its operations." Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2 Cir. 1978).
Furthermore, it seems that motions for disqualification are often used for strategic purposes. See Allegaert v. Perot, 565 F.2d 246, 251 (2 Cir. 1977). These considerations weigh against adoption of a rigid rule governing disqualification of co-counsel. The Court of Appeals for the Third Circuit reached a similar conclusion in Akerly v. Red Barn System, Inc., supra, 551 F.2d at 543:
"This Court is urged to adopt a per se rule that if one co-counsel is disqualified for ethical reasons, all co-counsel must be barred from representation. We decline to follow such a path. Instead, we adhere to the mode of analysis employed in earlier attorney disqualification controversies a careful sifting of all of the facts and circumstances." (Footnote omitted.)
In Fund of Funds, Ltd. v. Arthur Andersen & Co., supra, 567 F.2d 225, the only case cited by plaintiff in which co-counsel was disqualified, the court relied heavily upon the unusual factual circumstances of the case. The disqualification issue arose in Fund of Funds because Morgan, Lewis and Bockius ("Morgan Lewis"), a firm that had served as Arthur Andersen's regional counsel for fifteen years, accepted a retainer from Fund of Funds, knowing that it might lead to litigation against Andersen, in addition to other defendants. Although aware of the ethical problems this situation presented, Morgan Lewis continued to represent Fund of Funds, but asked Robert Meister of Milgrim, Thomajan & Jacobs to assist in the matter. Meister's law firm had maintained a close working relationship with Morgan Lewis for some time. Eventually, Fund of Funds brought a separate action against Andersen, with Meister's firm serving as counsel. Meister reviewed documents concerning Andersen that were supplied by Morgan Lewis, reviewed and revised the complaint with a Morgan Lewis attorney, and in various other respects worked in conjunction with Morgan Lewis. The Court of Appeals for the Second Circuit found that Meister was "the extension of Morgan Lewis's continuing involvement in the underlying action." 567 F.2d at 234. Significantly, the court emphasized that "Meister accepted the retainer from Orr to sue Andersen knowing of the Morgan firm's ethical dilemma. Indeed, his retention as counsel was premised on and resulted from the Morgan firm's incapacity to pursue the claim itself." Ibid. (footnote omitted). The court acknowledged the "generally stated rule that a `co-counsel' relationship will not alone warrant disqualification", but concluded that "the extraordinary, sui generis facts" of the case compelled disqualification of Meister's law firm. 567 F.2d at 235.
The facts of this case differ significantly from those presented in Fund of Funds. The Fujiyama firm's relationship with Pacific Auto was far more limited than Morgan Lewis's relationship with Arthur Andersen. The entire interaction between the Fujiyama firm and Pacific Auto consisted of two brief meetings, as compared to Morgan Lewis's representation of Andersen for fifteen years. Furthermore, the connection between the Fujiyama firm and Phillips Nizer is considerably more attenuated than the relationship that existed between Morgan Lewis and Meister's firm. Phillips Nizer had never worked with the Fujiyama firm prior to this case, nor did Phillips Nizer receive any documents concerning Pacific Auto from the Fujiyama firm. A final distinguishing factor is that when Phillips Nizer associated the Fujiyama firm as co-counsel, Phillips Nizer apparently had no knowledge of the conflict of interest created by the Fujiyama firm representing Budget.
In Fund of Funds, the court based its decision in part upon two earlier Second Circuit cases, NCK Organization Ltd. v. Bregman, 542 F.2d 128 (2 Cir. 1976), and Hull v. Celanese Corp., 513 F.2d 568 (2 Cir. 1975). Although plaintiff has not relied upon these cases, the Court notes that some of the language in the decisions lends support *504 to plaintiff's position. In Hull the court of appeals affirmed an order disqualifying a law firm from representing a woman who wished to intervene as a plaintiff in a sex discrimination suit against her employer. The woman was a member of the employer's corporate legal staff. As an attorney, she had been active in the defense of the sex discrimination suit. The district court found that there was some evidence that this plaintiff-attorney might have transmitted confidential information concerning the case to the law firm she had retained as counsel. Due to the on-going possibility of improper disclosure, the district court granted the motion for disqualification of the firm. The Court of Appeals for the Second Circuit affirmed, noting that the district court's order must be upheld absent an abuse of discretion. 513 F.2d at 571. Responding to the disqualified firm's argument that no confidential information had ever been disclosed, the court stated that "[t]he breach of confidence would not have to be proved; it is presumed in order to preserve the spirit of the Code." 513 F.2d at 572. The court went on to emphasize that its decision rested on the unusual factual circumstances of the case:
"The novel factual situation presented here dictates a narrow reading of this opinion. * * * The scope of this opinion must, of necessity, be confined to the facts presented and not read as a broad-brush approach to disqualification." 513 F.2d at 572.
In Hull the plaintiff-attorney possessed confidential information concerning the opposing party's strategy in that particular case. Furthermore, unlike the case at bar, where once the Fujiyama firm is disqualified there would be no further consultation between the Fujiyama firm and Phillips Nizer, in Hull, as the district court noted, there would have been an ongoing risk of improper disclosure. Confined to the factual circumstances presented in that case, Hull does not support disqualification of Phillips Nizer. Yet the court's statement that a breach of confidence could be presumed is troublesome.
This presumption was later used in NCK Organization Ltd. v. Bregman, supra, 542 F.2d 128, as a basis for affirming the district court's disqualification of co-counsel. In a suit brought by a corporation against a former corporate officer, the defendant, Mr. Bregman, had retained Mr. Randall, an attorney who had formerly served as house counsel for the plaintiff corporation and had been actively involved in the transactions underlying the litigation. Randall was disqualified not only because of the conflict of interest created by representing Bregman but also because he might well have been called to testify at trial. 542 F.2d at 131. The Weil firm, which had served as co-counsel, was also disqualified. That firm had accepted employment knowing that Randall had served as house counsel to the corporation, yet accepting Randall's assurances that no impropriety was involved, since, according to Randall, any confidential information Randall possessed was information to which Bregman as a corporate officer was also privy. 542 F.2d at 131. The court of appeals noted that even if this were true, Randall would not be entitled to disclose those confidences. 542 F.2d at 133.
The court of appeals relied heavily on the Hull decision in affirming the district court's order disqualifying the Weil firm. The court presumed that Randall had received confidential information from the corporation and concluded that the possibility that such information might be conveyed to the Weil firm was an adequate ground for disqualifying that firm. Although the court recognized that Hull differed from the case before it, since "in Hull there was a potential for continuing disclosure," the court concluded that "where some evidence exists of the possibility that disclosures were made in the past of which the Weil firm cannot dispossess itself, the same policies which required disqualification in Hull require it here." 542 F.2d at 134 (footnote omitted).
Judge Mansfield, concurring in the result, emphasized the importance of reading the majority opinion narrowly, in light of the *505 particular facts of the case. As he viewed the case, "[t]he question is whether a new counsel is to be automatically disqualified from representing Bregman because the new counsel talked with a disqualified lawyer (Randall)." 542 F.2d at 135-136. Judge Mansfield acknowledged that under Second Circuit decisions it could be presumed that Randall had received confidential information during the course of his attorney-client relationship with the corporation, yet he stressed that the Weil firm had never been in an attorney-client relationship with the corporation and thus could not be presumed to have received confidential information directly from the corporation. Judge Mansfield criticized the majority's willingness to presume that the disqualified firm had disclosed confidential information to co-counsel:
"I concur in the result only because it is undisputed that Randall, who was clearly disqualified, had engaged in fairly extensive discussion of the case with the Weil firm, giving advice to that firm and to Bregman. Under the circumstances, I cannot say that it was an abuse of discretion for Judge Motley to have exercised the district court's supervisory power to disqualify the Weil firm. However, I would not subscribe to an iron-clad rule automatically presuming that a disqualified lawyer has disclosed confidences to a firm which was not in an attorney-client relationship with the other side. While an automatic taint may be a salutary method of enforcing ethical principles against an attorney who personally acted in a fiduciary capacity for an adversary, it smacks of an overkill to extend such a taint to a new counsel brought in by him to represent someone else." 542 F.2d at 136.
This Court is unwilling to disqualify the Phillips Nizer firm solely on the basis of a presumption that the Fujiyama firm breached their obligation not to disclose any confidential information obtained from Pacific Auto. Moreover, there appears to be no California or Ninth Circuit authority establishing such a presumption. Neither the California Rules of Professional Conduct nor the ABA Code specifically address the issue of disqualification of co-counsel, and there are no California or Ninth Circuit cases directly on point. Yet the Court finds some support for its reluctance to presume disclosure of confidential information between co-counsel in a California case dealing with attorneys of co-defendants, In the Matter of Charles Willie L., 63 Cal.App.3d 760, 132 Cal.Rptr. 840 (1976). In ruling on a disqualification motion, the court considered as a preliminary matter whether an attorney who had represented a defendant in a criminal case might have thereby obtained confidential information concerning a co-defendant. The court refused to assume that the attorney had received confidences from the co-defendant, since they had not been in an attorney-client relationship. As to the possibility that confidential information might have been disclosed when the attorneys for the two defendants consulted during the course of the trial, the court looked to the record to determine whether there was any evidence of such disclosure. As the record gave no indication that confidential information had been conveyed, but rather suggested that the attorneys had merely conferred concerning trial tactics and strategy, the court found no basis for assuming that the duty to preserve a client's confidences had been breached.
On the basis of the evidence pertaining to the motion to disqualify the Phillips Nizer firm, this Court concludes that Phillips Nizer could only be disqualified if the knowledge of the members of the Fujiyama firm could be presumed to have been transmitted to the members of the Phillips Nizer firm. Although the knowledge of one attorney in a firm is generally imputed to other members of the firm, so that the disqualification of one attorney results in disqualification of the entire firm,[6] in some *506 cases the party opposing disqualification has shown that imputing the knowledge of one attorney to all other attorneys in the firm would be inappropriate under the circumstances, and the courts have therefore held that disqualification on the ground of imputed knowledge would be unwarranted. See, e. g., Gas-a-Tron v. Union Oil Co., 534 F.2d 1322 (9 Cir. 1976), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2 Cir. 1975).[7] If a presumption of disclosure had arisen here, this Court would find that it had been adequately rebutted. As the court noted in Silver Chrysler, supra,
"`It will not do to make the presumption of confidential information rebuttable and then to make the standard of proof for rebuttal unattainably high. This is particularly true where, as here, the attorney must prove a negative, which is always a difficult burden to meet.'" 518 F.2d at 754, quoting Laskey Bros. of West Va., Inc. v. Warner Bros. Pictures, 224 F.2d 824, 827 (2 Cir. 1955).
Yet, absent controlling authority on the issue, this Court declines to hold that such a presumption with respect to co-counsel is appropriate. Although creating such a presumption would make decisions regarding disqualification of co-counsel far simpler, it should also be borne in mind that disqualification entails considerable expense and perhaps substantial prejudice to the client whose attorney is disqualified. Furthermore, imputation of the knowledge of one member of a law firm to other members of the firm does not presume any breach of ethical obligations, for under the ABA Code, Ethical Consideration 4-2, "[u]nless the client otherwise directs, a lawyer may disclose the affairs of his client to partners or associates of his firm" without violating the duty of preserving his client's confidences. However, to presume that an attorney would reveal confidential information regarding one client to co-counsel on a matter relating to another client would be to presume a breach of the ethical obligation of confidentiality. In a case somewhat similar to the case at bar, the Court of Appeals for the Fifth Circuit reversed an order of disqualification of co-counsel that was based upon the trial court's imputing the knowledge of one member of a firm to another member of the firm and then further imputing that knowledge to co-counsel. The court of appeals rejected this double imputation, noting that it "could lead to extreme results in no way required to maintain public confidence in the bar," and would result "in wasted time and unnecessary expense." American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5 Cir. 1971). The court distinguished the relationship among law partners from the relationship between co-counsel:
"These firms acted as co-counsel, each responsible to and compensated by American Can, not the other. Consequently knowledge admittedly imputed to Allison should not then be re-imputed to Miller. Disqualification of Miller and the Covington firm must fail on this ground." Ibid. (citations omitted).
*507 Although the court in American Can did not consider whether disqualification of co-counsel would have been appropriate if the knowledge of the member of the first firm had been actual rather than imputed,[8] the tenor of the court's opinion suggests that the Court of Appeals for the Fifth Circuit would find a presumption of revelation of confidences to co-counsel unwarranted.[9]
Plaintiff argues that even if this Court will neither presume that Fujiyama disclosed confidences to Phillips Nizer nor find that the record suggests that such disclosure took place, the Court nevertheless should disqualify the Phillips Nizer firm on the ground that their association with the Fujiyama firm created "the appearance, if not the actuality, of impropriety." Plaintiff relies on Canon 9 of the ABA Code, "A lawyer should avoid even the appearance of professional impropriety." The Ethical Considerations under Canon 9 reveal that this canon is based in large part upon the need to maintain public confidence in the legal system and the legal profession. Although the California Rules of Professional Conduct do not explicitly incorporate the standard of Canon 9, California cases dealing with disqualification of attorneys have noted the importance of avoiding the appearance of impropriety. See, e. g., People v. Municipal Court, 69 Cal.App.3d 714, 720, 138 Cal.Rptr. 235, 238 (1977).
Plaintiffs rely upon the Court of Appeals for the Seventh Circuit's statement that "[r]ead together, [Canons 4 and 9] indicate that an attorney may be required to withdraw from a case where there exists even an appearance of a conflict of interest." Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 709 (7 Cir. 1976). This statement supports the view that this Court would not have exceeded the bounds of its permissible discretion if it were to disqualify the Phillips Nizer firm, yet it does not compel disqualification here.
Having concluded that there is no evidence of actual impropriety on the part of the Phillips Nizer firm, this Court will not disqualify the firm solely on the ground that their role as co-counsel to a disqualified firm created an appearance of impropriety, particularly in light of the general rule that co-counsel are not to be disqualified automatically. In this Court's opinion, disqualification of the Phillips Nizer firm under the circumstances presented in this case would reflect an overabundance of caution.[10]
*508 Costs and Attorneys' Fees
Pacific Auto requests an award of costs and attorneys' fees incurred in moving for disqualification of the Fujiyama firm and the Phillips Nizer firm. Phillips Nizer, on behalf of Budget, requests an award of costs and attorneys' fees incurred in opposing the motion to disqualify the Phillips Nizer firm. Neither party has provided any authority supporting the request for attorneys' fees or supporting an award of costs at this stage of the litigation. Accordingly, the requests for costs and attorneys' fees will be denied. This does not, of course, preclude including these costs in the costs awarded to the party who ultimately prevails in this litigation. See Federal Rules of Civil Procedure 54(d).
Motion for Protective Order and to Quash Subpoena
In connection with plaintiff's motion for disqualification, the Fujiyama firm sought to depose plaintiff's attorneys and served a subpoena duces tecum upon the attorneys calling for the production of documents related to the disqualification motion, particularly certain affidavits drafted by plaintiff's attorneys. The deposition and document production were noticed for February 10, 1979. On February 12, 1979, plaintiff filed a motion seeking a protective order and an order quashing the subpoena duces tecum and the notice of deposition, arguing in a conclusory fashion that defendant had employed the subpoena and notice for purposes of delay and in an effort to circumvent discovery rules. Plaintiff sought an award of costs and attorneys' fees incurred in bringing the motion. Defendant opposed the motion, contending that the subpoena and notice were proper, and asked that the hearing on the motion for disqualification be continued in order to enable defendant to take the depositions of plaintiff's attorneys.
The hearing on the motion for disqualification was held as previously scheduled on February 15, 1979. At that hearing, plaintiff's attorneys did not seek a ruling on their motion for a protective order and to quash the subpoena. It seems that at that date the motion had already become moot. Clearly it is moot at this point, for defendant's discovery efforts related solely to the motion for disqualification. Plaintiff's motion is therefore denied as moot. Plaintiff's request for costs and attorneys' fees incurred in bringing the motion is also denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to disqualify the law firm of Fujiyama, Duffy, Fujiyama & Koshiba from representing Budget Rent A Car Systems, Inc., in Pacific Auto Rental Corp. v. The Hertz Corp., et al., No. C-78-2698-CBR, is granted, and plaintiff's motion to disqualify the law firm of Phillips, Nizer, Benjamin, Krim & Ballon from representing Budget Rent A Car Systems, Inc. in that action is denied.
IT IS HEREBY FURTHER ORDERED that plaintiff's and defendant's requests for awards of costs and attorneys' fees incurred in connection with the motions for disqualification are denied.
IT IS HEREBY FURTHER ORDERED that plaintiff's motion for a protective order and to quash a subpoena is denied as moot, and that plaintiff shall not be awarded costs and attorneys' fees incurred in bringing that motion.
NOTES
[1] Pacific Auto is a franchisee of Dollar Rent A Car System.
[2] In March 1978 the Judicial Panel on Multidistrict Litigation centralized Budget's suit and five other actions in the Northern District of California for coordinated or consolidated pre-trial proceedings before this Court. In re Airport Car Rental Antitrust Litigation, 448 F.Supp. 273 (Jud.Pan.Mult.Lit.1978). Pacific Auto's suit was later transferred to this Court for inclusion in those consolidated proceedings.
[3] Under many cases decided under the ABA Code of Professional Responsibility, the fact that the Fujiyama firm had represented Pacific Auto on a matter substantially related to the case at bar would compel disqualification here, even if no showing had been made that Pacific Auto had conveyed confidential information to Fujiyama. See, e. g., American Roller Co. v. Budinger, 513 F.2d 982 (3 Cir. 1975); General Elec. Co. v. Valeron Corp., 428 F.Supp. 68 (E.D. Mich.1977). See also Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., et al. (7 Cir. Feb. 27, 1979) (stating that under the "substantial relationship" test it is irrebuttably presumed that the individual attorney who dealt with the former client had access to confidential information).
[4] The ABA Code of Professional Responsibility would compel the same result. Canon 4 ("A lawyer should preserve the confidences and secrets of a client"), Canon 5 ("A lawyer should exercise independent professional judgment on behalf of a client"), and Canon 9 ("A lawyer should avoid even the appearance of professional impropriety") have been relied upon as grounds for disqualification in cases where attorneys have accepted employment adverse to the interests of a former client. See, e. g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570 (2 Cir. 1973); Richardson v. Hamilton International Corporation, 469 F.2d 1382 (3 Cir. 1972). See also Fund of Funds, Ltd v. Arthur Andersen & Co., 567 F.2d 225, 234 n.17 (2 Cir. 1977) (behavior that violates Canon 4 may also constitute a breach of Canon 5's duty of undivided loyalty).
In fact, former Canon 6, a predecessor of Canon 4, explicitly stated:
"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."
See Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 570. The revisions of the canons made no change in this settled principle of legal ethics. Id. at 570 n.6.
[5] Recognizing the adverse effects of disqualification orders, the Court of Appeals for the Second Circuit concluded in Board of Education v. Nyquist, 590 F.2d 1241 (2 Cir., 1979), that "[w]eighing the needs of efficient judicial administration against the potential advantage of immediate preventive measures, * * * unless an attorney's conduct tends to `taint the underlying trial,' * * * courts should be quite hesitant to disqualify an attorney." 590 F.2d at 1246. The court noted that disqualification has only been considered necessary in cases involving violations of Canons 4, 5 and 9 of the ABA Code.
[6] See, e. g., Disciplinary Rule 5-105(D) of the ABA Code:
"If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."
[7] In these cases the Courts of Appeals for the Ninth Circuit and the Second Circuit refused to apply inflexibly the general rule that the knowledge of one member of a firm is imputed to other members of the firm. The Court of Appeals for the Seventh Circuit, however, seems to favor a less flexible approach. In Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc. et al., supra, the Court of Appeals for the Seventh Circuit addressed the issue of whether imputation of knowledge to other attorneys in the firm should operate as an irrebuttable presumption. The court's resolution of this issue was not entirely clear. The court stated that Canon 9 supported its decision to disqualify plaintiff's law firm, despite the argument that the attorneys in that firm only had imputed rather than actual knowledge of confidential information. The dissenting opinion concluded that the majority's decision "must rest entirely on a holding that the presumption of shared confidences [among members of a firm] is irrebuttable." The majority opinion might also be read as finding that even if the presumption should be deemed rebuttable, it had not been adequately rebutted in that case.
[8] In fact, the court expressly reserved this question:
"[W]e do not determine whether disqualification of Miller and the Covington firm would have been correct if Allison had actual knowledge of information communicated to Ericksen, and substantially related to the American Can controversy." 436 F.2d at 1130.
[9] Disqualification based upon a presumption of disclosure was again considered in George v. LeBlanc, 78 F.R.D. 281 (N.D.Tex.1977). In that case, defendants moved to disqualify plaintiffs' attorneys because of certain discussions the attorneys had had with former counsel for one of the defendant corporations. Although plaintiffs' attorneys had never represented the corporation, defendants asked the court to presume that plaintiffs' attorneys had received confidential information concerning the corporation from the corporation's attorneys. The court counseled against extension of the presumption of receipt of confidential information and refused to apply such a presumption in the case before it:
"[I]mposing a presumption of passing confidential [information] to every such exchange between attorneys serves no compelling purpose. A limit must be set on the class to whom courts will impute such knowledge absent proof of actual receipt. Presently, the courts have included within the suspect class, and have disqualified, attorneys who have switched sides either to become counsel or to become parties themselves against former clients. This disqualification generally extends to partners and employees of the lawyer who participated in the attorney-client privilege. American Can Company v. Citrus Feed Company, 436 F.2d 1125, 1129 (5th Cir. 1971)." 78 F.R.D. at 287-288.
The Court of Appeals for the Fifth Circuit affirmed without an opinion. George v. LeBlanc, 565 F.2d 1213 (5 Cir. 1977).
[10] This Court is reluctant to adopt plaintiff's broad reading of Canon 9, not only because of the harm to clients caused by disqualification of attorneys based upon a possible appearance of impropriety, but also because such an expansive application of Canon 9 would do little to further public confidence in the legal system. Indeed, as the Court of Appeals for the Fifth Circuit stated in Woods v. Covington County Bank, 537 F.2d 804, 813 (5 Cir. 1976):
"[T]he more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both the bar and the judiciary. An overly broad application of Canon 9, then, would ultimately be self-defeating." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750721/ | 952 So. 2d 1204 (2007)
D.S.
v.
DEPARTMENT OF CHILDREN AND FAMILIES
No. 5D06-2244.
District Court of Appeal of Florida, Fifth District.
March 27, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366693/ | 871 P.2d 454 (1994)
318 Or. 480
CITY OF EUGENE, Petitioner on Review,
v.
David Henry MILLER, Respondent on Review.
CC 91-50062, 91-50073; CA A75143 (control), CA A75145; SC S40396.
Supreme Court of Oregon.
Argued and Submitted October 29, 1993.
Decided April 7, 1994.
*455 William F. Gary, Eugene, argued the cause and filed the petition for petitioner on review. With him on the petition was Ellen D. Adler of Harrang Long Watkinson Laird & Rubenstein, P.C., Eugene.
Rebecca R. Davis, Eugene, argued the cause and filed the responses for respondent on review.
Madelyn K. Wessel, Deputy City Atty., Portland, filed a brief for amicus curiae League of Oregon Cities.
Edmund J. Spinney, Eugene, filed a brief for amicus curiae American Civil Liberties Union.
Before CARSON, C.J., and PETERSON,[*] GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ.
GILLETTE, Justice.
In these consolidated cases, defendant was convicted of violating Eugene Code section 4.860(d), one of the sidewalk vending ordinances of the Eugene city code,[1] by selling joke books on a city sidewalk. The Court of Appeals reversed the convictions, concluding that the Eugene sidewalk vending ordinance violated Article I, section 8, of the Oregon Constitution.[2]City of Eugene v. Miller, 119 Or.App. 293, 851 P.2d 1142 (1993). Because we agree that the ordinance as applied to defendant's activities violated defendant's rights under Article I, section 8, we affirm the decision of the Court of Appeals, albeit on different grounds.
At all times relevant to these proceedings, the Eugene Code contained the following provisions related to sidewalk vending.[3] Eugene Code section 4.860 prohibited certain activities on streets and sidewalks. Subsection (d) of that section provided:
"Unless otherwise authorized by this code, no person shall:
"* * * * *
"(d) Set up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks."
Eugene Code sections 3.336 to 3.342 established a scheme for the licensing of sidewalk vendors, thereby providing an exception to the prohibition in section 4.860(d).[4] Section 3.338 imposed certain requirements on licensed vendors. One of those requirements, set out in section 3.338(e), was that vendors "[s]ell only the food, beverages, flowers or balloons designated on the license."[5]*456 The sale of any other kind of merchandise, including books, was not authorized. According to the city, the purpose of the sidewalk vending scheme was "to reduce congestion, ensure public safety, promote business development by fostering a carnival-like atmosphere, lessen unfair competition and minimize city liability by restricting unlicensed commercial sales transactions on public sidewalks."
On July 24, 1991, and again on August 13, 1991, defendant was cited for selling a joke book to a pedestrian on a sidewalk in Eugene in violation of Eugene Code section 4.860(d) (set out above). In the municipal court, and again on appeal in the district court, defendant argued that the limitation of licenses to vendors of food, beverages, flowers, and balloons violated various state and federal constitutional provisions, including the free speech guarantee of Article I, section 8, of the Oregon Constitution.[6] The municipal and district courts rejected defendant's constitutional claims and convicted him of both charges.
The Court of Appeals reversed the convictions. A five-member majority of that court concluded that the sidewalk vending ordinance violated Article I, section 8, because the ordinance was overbroad. City of Eugene v. Miller, supra, 119 Or.App. at 297-98, 851 P.2d 1142. The majority also concluded that the ordinance was invalid as a "content-based regulation," because "it regulates different exercises of the same commercial activity differently, on the basis of what is sold and communicated." Id. at 299, 851 P.2d 1142 (emphasis deleted). Three dissenting judges concluded that the ordinance did not violate Article I, section 8. Id. at 301-06 (Edmonds, J., dissenting).[7] We allowed the city's petition for review to address this important constitutional issue.
We first address a threshold issue regarding appellate jurisdiction. In the Court of Appeals, the city argued that the court did not have jurisdiction, because defendant could not attack the constitutionality of Eugene Code section 3.338(e) on appeal from his convictions for violating section 4.860(d). See ORS 221.360 (allowing appeal from district court to Court of Appeals in cases "involving the constitutionality of the * * * ordinance under which the conviction was obtained"). The Court of Appeals concluded that it had jurisdiction in these cases under ORS 221.360, because section 3.338(e) "is in pari materia with the ordinance under which [defendant] was convicted." City of Eugene v. Miller, supra, 119 Or.App. at 296, 851 P.2d 1142. At oral argument before this court, the city again raised its jurisdictional argument. For the reason stated in that court's opinion, we agree with the Court of Appeals that appellate jurisdiction is proper in these cases.
We turn to the central question in these caseswhether applying the prohibition in Eugene Code section 4.860(d) to defendant, while relieving certain other persons of the burden of that section under the terms of Eugene Code section 3.338(e), violates defendant's right to free speech guaranteed by Article I, section 8.
Defendant first contends that the Eugene ordinance is invalid as a regulation directed at the "content" of speech, because the ordinance "allows the selling of some objects but not others." Defendant also contends that the ordinance is unconstitutionally overbroad, because "the restriction based on the types of goods sold does nothing to further the stated purpose of the ordinance."
In response, the city argues that the ordinance does not violate Article I, section 8, because the ordinance "regulates commerce, not speech." That distinction is of questionable value, however, in view of this court's recognition that "[s]elling is a form of communicative behavior that includes speech" and that regulations on selling therefore implicate *457 "speech."[8]City of Hillsboro v. Purcell, 306 Or. 547, 555, 761 P.2d 510 (1988).
The city attempts to distinguish Purcell by arguing that that case involved "solicitation" and that Eugene Code section 3.338(e) "does not presume to regulate solicitation." Contrary to the city's assertion, however, its ordinance does regulate solicitation[9] and, under prior decisions of this court, a law that regulates solicitation implicates Article I, section 8. See Moser v. Frohnmayer, 315 Or. 372, 845 P.2d 1284 (1993) (statute regulating use of automatic dialing and announcing devices to solicit purchase of real property, goods, or services held invalid under Article I, section 8); City of Hillsboro v. Purcell, supra, (ordinance criminalizing door-to-door solicitation held invalid under Article I, section 8).
Nevertheless, we need not decide whether applying to defendant the prohibition of Eugene Code section 4.860(d), as qualified by the exception in Eugene Code section 3.338(e), violates Article I, section 8, by impermissibly regulating "solicitation" or some other part of a sales transaction that might be characterized as "speech" subject to constitutional protection. Even assuming, arguendo, that the words of offer and acceptance in a sales transaction are not "speech" that is protected by Article I, section 8, we nonetheless conclude that the Eugene ordinance violates Article I, section 8, because, as applied to defendant, it unreasonably impinges on the dissemination of expressive material that is itself protected under Article I, section 8.
The city does not dispute that defendant's joke books are expressive material. The city also does not dispute that expressive material may be protected as speech under Article I, section 8. See City of Hillsboro v. Purcell, supra, 306 Or. at 555, 761 P.2d 510 ("[s]elling * * * may involve goods that are protected expression"); id. at 555 n. 6, 761 P.2d 510 ("licensing may implicate speech rights if applied to the sale or distribution of products, such as newspapers and magazines, involving expression"). Finally, the city does not dispute that, by expressly permitting the sale of food, beverages, flowers, and balloons only, the operative combination of sections 4.860(d) and 3.338(e) limits the dissemination of expressive material such as defendant's joke books.[10] The city's contention is that the limitation on the sale of expressive material is nonetheless valid, because "[e]xpressive material as a commodity, like any other commodity, is not exempt from content-neutral regulations." According to the city, "the analysis in this case is the same whether the commodity involved is joke books or furniture." In other words, the city contends that, so long as it does not distinguish among expressive material based on the material's content, it may regulate the sale of expressive material like any other commodity. For the reasons that follow, we disagree.
The city is correct to the extent that it is arguing that expressive material is not exempt from all "content-neutral" regulation. As this court stated in City of Portland v. Tidyman, 306 Or. 174, 182, 759 P.2d 242 (1988):
*458 "A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check-out counter. The same applies to `adult businesses' that sell other merchandise besides books, pictures or records. Even structures and activities unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than the substance of their particular message."
Nevertheless, the principle that expressive material is not exempt from "content-neutral" regulation does not mean, as the city appears to contend, that expressive material may be subjected to any "content-neutral" regulation that the city wishes to impose. For instance, it is unlikely that the city could impose an outright ban on the sale and distribution of all expressive material within its city limits. Such a ban, though entirely neutral with regard to the "content" or "subject" of the expressive material, would be unlikely to withstand scrutiny under Article I, section 8, because it would restrict too greatly "the free expression of opinion" and "the right to speak, write, or print freely on any subject whatever." The city cannot evade scrutiny of its ordinance under Article I, section 8, merely by asserting that the ordinance is "content-neutral."
The city also is wrong when it contends that "the analysis in this case is the same whether the commodity involved is joke books or furniture." A limitation on the sale of furniture does not implicate the same free speech concerns that are implicated by a limitation on the sale of goods that are themselves protected as expression under Article I, section 8. That point is illustrated by the following passage from City of Portland v. Tidyman, supra, 306 Or. at 182, 759 P.2d 242 (invalidating a city ordinance regulating "adult bookstores"):
"We note at the outset that the obstacle to the city's distinction [between `adult' businesses and other businesses] is not the constitutional guarantee of equal privileges and immunities, Article I, section 20, but the guarantee of free expression, Article I, section 8. If free expression within that guarantee were not involved, `adult' businesses could not insist that they must be treated exactly like any other business, not, at least, without a showing of being singled out for an impermissible motive." (Footnotes omitted.) Tidyman establishes that, because limitations on the sale of expressive material involve free expression within the guarantee of Article I, section 8, such limitations are subject to scrutiny under that provision, even though similar limitations on other, nonexpressive material may not be.
Having concluded that the operation of Eugene Code sections 4.860(d) and 3.338(e) implicates Article I, section 8, because the ordinances have the effect of limiting the sale of expressive material such as defendant's books, we must now determine whether that limitation violates Article I, section 8. In State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), this court established a basic framework for determining whether a law violates Article I, section 8. That framework recognizes three categories of laws, which this court summarized in State v. Plowman, 314 Or. 157, 164, 838 P.2d 558 (1992), cert. den. ___ U.S. ___, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993).
The first Robertson category consists of laws that "focus on the content of speech or writing" or are "`written in terms directed to the substance of any "opinion" or any "subject" of communication.'" State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558 (quoting State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569) (emphasis in original). Laws within that category violate Article I, section 8, "unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569. The second Robertson category consists of laws that "focus[] on forbidden effects, but expressly prohibit[] expression used to achieve those effects." State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558. Laws in that category "are analyzed for overbreadth." Ibid. Finally, *459 the third Robertson category consists of laws that "focus[ ] on forbidden effects, but without referring to expression at all." Ibid. Laws within the third category are analyzed to determine whether they violate Article I, section 8, as applied. State v. Robertson, supra, 293 Or. at 417, 649 P.2d 569.
The question thus becomes whether the prohibition in Eugene Code section 4.860(d), as qualified by the exception in Eugene Code section 3.338(e), fits within the Robertson framework and, if so, where. As noted above, defendant first argues that the combined effect of the two sections violates Article I, section 8, because it is a "content-based" restriction on speech. In Robertson terms, defendant's argument is that the ordinances are invalid because they are written in terms directed at the "subject of communication"i.e., the product sold. We disagree.
As we noted above, we assume, arguendo, that no part of the words of offer and acceptance in a sales transaction are "speech" protected by Article I, section 8. Given that assumption, a regulation on commercial activity is not invalid under Article I, section 8, as a "content-based" restriction simply because it distinguishes between types of products. For purposes of our analysis, the relevant "expression" that implicates the protection of Article I, section 8, is the expressive material that vendors like defendant are prohibited from selling on the sidewalks of Eugene under the ordinance. As the city points out, however, sections 4.860(d) and 3.338(e) are "content-neutral" with regard to their limitation on the sale of expressive material. It makes no difference, under the ordinances, whether a person is selling a joke book, a religious tract, or a political treatise. The ordinances limit, inter alia, the sale of all expressive material, regardless of its "subject" or "content." For that reason, sections 4.860(d) and 3.338(e) are not, collectively, a law "written in terms directed to the substance of any `opinion' or any `subject' of communication" and are not unconstitutional on that ground.
The next question is whether sections 4.860(d) and 3.338(e) fit within the second Robertson category, so that they must be examined for overbreadth. In making that determination, we first ask whether they collectively constitute a law that "focus[es] on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end." State v. Robertson, supra, 293 Or. at 416-17, 649 P.2d 569. Indeed, that requirement is common to both the second and third Robertson categories. Ibid. We conclude that the Eugene sidewalk vending ordinances are such a law. Here, the forbidden "result" or "effect" that the sidewalk vending ordinances focus on is congestion on city streets and sidewalks and the resulting danger to public safety. The sidewalk vending scheme also seeks to promote business development, lessen unfair competition, and minimize city liability. In seeking to accomplish those goals, the ordinances do not "focus * * * on the suppression of speech or writing"; therefore, they satisfy the threshold requirement of the second Robertson category.
The final question, under the Robertson framework, is whether the Eugene sidewalk vending ordinances are a law that expressly prohibits expression to achieve the forbidden effects or, instead, are a law that does not refer to expression at all. State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558. As this court wrote in Robertson, "[w]hen the proscribed means include speech or writing, * * * even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such `overbreadth.'" 293 Or. at 417-18, 649 P.2d 569. As noted, it is this characteristic that places a law in the second Robertson category. If, on the other hand, the law does not refer to expression at all, then the appropriate inquiry is whether the law could be constitutionally applied to the defendant's specific act or acts of expression. That "as applied" inquiry arises out of the third Robertson category.
The ordinances here do not fit within the second Robertson category. Neither Eugene Code section 4.860(d) nor Eugene Code section 3.338(e), whether read alone or together, "expressly prohibits expression to achieve *460 [certain forbidden] * * * effects." See State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558 (citing State v. Robertson, supra, 293 Or. at 417-18, 649 P.2d 569). The ordinances do not, by their terms, purport to proscribe speech or writing as a means to avoid a forbidden effect. Analysis for overbreadth under the second Robertson category is inappropriate. This brings us to the inquiry whether the ordinances as applied impermissibly burden protected expression.
When a law is challenged "as applied" under the third Robertson category, the question is whether the law was applied so that it did, in fact, reach privileged communication. State v. Robertson, supra, 293 Or. at 417, 649 P.2d 569. Under that approach, the question in these cases is whether application of the pertinent provisions of the Eugene Code by the City of Eugene has limited the sale of defendant's joke books in a manner that impermissibly burdens his right of free speech guaranteed by Article I, section 8. We conclude that it has.
It may be that the city could, within its legitimate powers and without violating Article I, section 8, ban all sidewalk vending, including the sale of expressive material.[11] It also may be that the city could permit the sale only of certain narrowly drawn categories of goods, where a special public need for such goods could be shown. On those points, we express no opinion.[12] So long as the city chooses to make its sidewalks available for some general commercial activity, however, it may not treat a vendor of expressive material more restrictively than vendors of other merchandiseat least, not without being able to offer some explanation as to how the sale of the other material meets a special need or how the sale of the expressive material in question gives rise to special problems reasonably justifying the regulation of the vendor of expressive material differently and more stringently than other vendors. No such explanation has been made in these cases.[13] Indeed, beyond the mathematics of the situation, there does not appear to be any rational basis for the burden that the city has chosen to place on defendant's expressive activity. In the absence of such a basis, Article I, section 8, requires that defendant be given the same opportunity for the public sale of his expressive material goods that is given to vendors of other products. As applied, the ordinance under which defendant was convicted unconstitutionally denied defendant that opportunity. Defendant's convictions properly were reversed.[14]
The decision of the Court of Appeals is affirmed on other grounds. The judgments of conviction are reversed.
*461 UNIS, Justice, specially concurring.
I agree with the outcome reached by the majority, but I cannot join in the majority's analysis. I write separately to express my concerns regarding a number of issues presented by this case that the majority fails to address, much less resolve.
The majority analyzes this case under the "framework" announced by this court in State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992), cert. den. ___ U.S. ___, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993). In Plowman, this court recast the principles stated in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), into a methodology that seeks to categorize a law into one of three types: (1) laws directed at speech per se; (2) laws directed at speech-caused harm, i.e., laws prohibiting speech that actually causes forbidden effects; and (3) laws directed at harm per se, i.e., laws that do not refer to speech at all.[1]State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558.
The majority concludes that the Eugene ordinances at issue in this case are in the third Plowman categorylaws directed at harm without referring to expression at alland finds the ordinances unconstitutional as applied to defendant's distribution of joke books. In engaging in its analysis, the majority assumes, arguendo, that no part of the sales transaction regulated by the Eugene ordinances is protected expression under Article I, section 8, of the Oregon Constitution. I find this assumption unwarranted.
At the time relevant to this appeal, Eugene Code section 4.860 provided in part:
"Unless otherwise authorized in this code, no person shall:
"* * * * *
"(d) Set up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks."
Eugene Code section 3.336 provided:
"Sidewalk VendingLicense Required. No person shall sell any goods or services within the corporate limits of the city except as provided by this code. As used in sections 3.336 to 3.342, `sell,' or `offer for sale,' includes but is not limited to the solicitation, exchange, transfer or delivery of goods or services." (Emphasis added.)
Although the Eugene ordinances by their terms restrict expression by specifically including "solicitation" as a proscribed activity, the majority assumes that the ordinances do not restrain expression. That assumption flies in the face of the express text of the ordinances and leads the majority to employ an analysis that will create confusion regarding this court's Article I, section 8, jurisprudence.
When a law is sought to be enforced against a person engaged in expressive activity, he or she may challenge the constitutionality of the government's action under Article I, section 8, in at least two ways. First, the individual may challenge the facial validity of the law. State v. Spencer, 289 Or. 225, 228, 611 P.2d 1147 (1980). Second, even if the law is facially valid, the individual may challenge the application of the law to his or her expressive activity in the particular case. Id. This court's analysis under State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558, addresses only the first type of challengechallenges to the facial validity of a law.
*462 A facial challenge to the constitutionality of a law under Article I, section 8, is a claim that the law, as written, is "invalid in toto." In re Fadeley, 310 Or. 548, 577 n. 7, 802 P.2d 31 (1990) (Unis, J., concurring in part, dissenting in part). Under State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558, if the challenged law by its terms focuses on restricting speech, the law is unconstitutional unless it falls within a historical exception.[2] A law that by its terms focuses on harm, but expressly proscribes speech as a means of causing that harm, is constitutional under Article I, section 8, unless it is incurably overbroad. A law that by its terms does not refer to expression at all is facially valid under Article I, section 8. A key to this analysis, therefore, is what the law by its terms proscribes.
In this case, the majority does not analyze what the terms of the Eugene ordinances proscribe. Rather, the majority assumes that the ordinances do not by their terms restrict expression. Given that assumption, it is a foregone conclusion that the ordinance will be classified in the third Plowman category. By assuming that the ordinances do not regulate expression, the majority assumes that they are facially valid under Article I, section 8.
Despite assuming that the ordinances are facially valid, the majority attempts to classify the Eugene ordinances under Plowman because "the ordinances have the effect of limiting the sale of expressive material such as defendant's books." 318 Or. at 488, 871 P.2d at 458 (emphasis added.) The "effect" of a law in a particular case is not a consideration in determining the facial validity of a law under this court's Article I, section 8, analysis:
"[Article I, section 8,] is a prohibition on the legislative branch. It prohibits the legislature from enacting laws restraining the free expression of opinion or restricting the right to speak freely on any subject. If a law concerning free speech on its face violates this prohibition, it is unconstitutional; it is not necessary to consider what the conduct is in the individual case." State v. Spencer, supra, 289 Or. at 228, 611 P.2d 1147 (emphasis added).
Thus, it is the terms of the law that are considered in a facial challenge, not the "effect" that the application of the law might have in a particular case. Under Article I, section 8, a law might be unconstitutionally applied to the facts of a particular case, but a law that does not on its face restrict expression is not facially unconstitutional because of the "effect" the law has in a particular case.
Having assumed that the ordinances are constitutional on their face, the majority proceeds to find that the ordinances were not constitutional "as applied" in this case. The majority fails to state what analysis it applies in reaching its conclusion, although it appears that the majority has stated an "impermissible burden" test. The majority does not specify the contours of this test, but it appears to involve an examination of whether there is a "rational basis" for the ordinance.
The majority also fails to apply its "impermissible burden" test to this case. The majority provides no discussion of the facts of this case, which are essential to an as-applied challenge, but rather speaks in abstract terms about the nature of the ordinances in question. In an as-applied challenge, the question is whether the law may be constitutionally applied to the defendant's actual expression on the facts of the case. How the law restricts the activity of other persons in other factual situations is irrelevant. Such an inquiry is relevant to an overbreadth analysis, *463 not an as-applied analysis.[3] Thus, the fact that under the Eugene ordinances persons selling balloons are treated differently from persons selling books should have no bearing on an as-applied analysis.
In my view, the valid application of a facially valid law to constitutionally protected activity requires a demonstration that the specified harm was a highly likely effect of the protected activity. See City of Portland v. Tidyman, 306 Or. 174, 188, 759 P.2d 242 (1988) (stating principle); In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983) (disciplinary rule could not be applied because the expressive activity involved did not create a "highly likely risk" that it would cause proscribed harm). In applying this analysis, the court must examine the facts of the particular case to assess whether the defendant's protected activity in fact created a highly likely risk that the specified harm was present or imminent.
Not only does the majority opinion create confusion, but it also avoids an important question raised by this case. The majority seems to suggest that any regulation on commercial activity might implicate Article I, section 8. 318 Or. at 485-486, ___ P.2d at 456-57. If the majority is holding that any regulation of commercial activity is a restriction on free expression, I disagree. The mere fact that a law regulates or proscribes selling does not cause that law on its face to restrain the free expression of opinion or the right to speak, write, or print freely on any subject whatever. Certainly, laws directed at commercial speech on their face restrict free expression, but many other laws are regulations of commercial activity, not speech. In City of Portland v. Tidyman, supra, 306 Or. at 182, 759 P.2d 242, this court stated:
"[T]he city could regulate the location of a business that sells other merchandise, `adult' or otherwise, even if it purveys communicative materials, as long as selling such other merchandise is not permitted at the location. A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check-out counter. * * * Even structures unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than the substance of their particular message. Many regulations are not impermissible laws `restricting the right to speak, write, or print freely on any subject whatever,' although they can be impermissibly applied in individual cases."
This quoted passage implies that a regulation that is directed at commercial activity, rather than speech, is not necessarily a law that on its face restrains the free expression of opinion.
The analytical difficulty that results from the application of the categorical framework of State v. Plowman, supra, to this case leads me to question whether that framework is appropriate for resolving the issues involved in this case. The Eugene ordinances in question do not prohibit outright any activity. Instead, they regulate the location and manner of certain activity. The categorical framework set out in State v. Plowman, supra, developed in the context of cases involving outright prohibitions of certain activities. See, e.g., State v. Henry, 302 Or. 510, 732 *464 P.2d 9 (1987) (law prohibiting "disseminating obscene material"); State v. Moyle, 299 Or. 691, 705 P.2d 740 (1985) (law prohibiting "harassment"); State v. Robertson, supra (law prohibiting "coercion"). In my view, a different analysis applies to regulations of activity, as opposed to prohibitions of such activity. Regulations of the location, time, or manner of activity are qualitatively different than outright prohibitions on activity, and they should be analyzed differently. Indeed, this court has recognized a distinction between laws that prohibit activity and laws that regulate the location, time, manner, intensity, or invasive effect of activity. In City of Hillsboro v. Purcell, 306 Or. 547, 554, 761 P.2d 510 (1988), this court stated:
"The relevant distinction is between outright prohibitionseither civil or criminalon the one hand, and regulations that do not foreclose expression entirely but regulate when, where and how it can occur."
See also Moser v. Frohnmayer, 315 Or. 372, 383-84, 845 P.2d 1284 (1993) (Graber, J., concurring in part, specially concurring in part) (analyzing statute as a "selective manner restriction"). In this case, the majority recognizes that there is a question whether the Plowman categorical framework should apply:
"The question thus becomes whether the prohibition in [the relevant provisions of the Eugene Code] fits within the [Plowman] framework and, if so, where." 318 Or. at 488, 871 P.2d at 459.
The majority never answers the question of whether the Plowman framework applies, however, but merely proceeds to analyze this case under Plowman.
In my view, the principles articulated by this court in City of Portland v. Tidyman, supra, and City of Hillsboro v. Purcell, supra, provide the basis for resolving the issues presented in this case, rather than categorical framework set forth in State v. Plowman, supra.[4]
It is not necessary to set forth a complete analysis of location, time, and manner regulations under Article I, section 8, to decide this case, however, because this case, in my view, is controlled by City of Hillsboro v. Purcell, supra. In Purcell, this court applied an overbreadth analysis to a city ordinance that regulated the location and manner of solicitation. Similarly, the Eugene ordinances in this case expressly regulate the location and manner of "solicitation." Thus, I would analyze the Eugene ordinances for overbreadth.
With four limited exceptions, the Eugene ordinances forbid all solicitation on the sidewalk for any purpose at any time. The ordinances are broad enough to preclude any person from soliciting financial support on the public sidewalks for any purpose through the sale of merchandise. Because the ordinances are not limited to the consequences they seek to regulate, they are overbroad. City of Hillsboro v. Purcell, supra, 306 Or. at 556, 761 P.2d 510.
An overbroad law may nevertheless be facially constitutional under Article I, section 8, if the court can give the law a narrow construction that limits the reach of the law to the constitutional confines intended by lawmakers. See, e.g., State v. Moyle, supra, 299 Or. at 702-05, 705 P.2d 740 (applying narrowing construction of harassment statute). In this case, however, I am unable to discern the intended boundaries of the Eugene ordinances. I would hold the Eugene ordinances to be facially unconstitutional because they are incurably overbroad. See City of Hillsboro v. Purcell, supra, 306 Or. at 556, 761 P.2d 510 (court unable to provide narrowing construction of ordinance prohibiting door-to-door solicitation).
Furthermore, even if I were to indulge the majority's assumption that the ordinances *465 are facially constitutional, I would hold that defendant could not be prosecuted for his distribution of joke books because the city has not demonstrated that defendant's expressive activity, at the place and time that the citations were issued, in fact created a "highly likely" risk that the harms the city's licensing scheme was designed to address were present or imminent.
FADELEY, J., joins in this specially concurring opinion.
NOTES
[*] Peterson, J., retired on December 31, 1993.
[1] As we explain, post, the constitutional issue in these cases arises not because of the prohibitory wording of Eugene Code section 4.860(d) itself. The problem arises because another ordinance, Eugene Code section 3.338(e), qualifies the flat prohibition in section 4.860(d) by permitting certain kinds of activity, while the activity that defendant wished to carry onbooksellingremained prohibited.
[2] Article I, section 8, of the Oregon Constitution, provides: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."
[3] After the Court of Appeals issued its opinion in these cases in April 1993, the City of Eugene amended its sidewalk vending ordinances. Defendant argues that the amendments rendered these cases moot. They did not. A justiciable controversy remains, because the validity of defendant's two convictions under the former version of the ordinances depends on the resolution of the constitutional issues presented by these cases.
[4] The Eugene Code also provided for at least two other exceptions: the conduct of business within a "pedestrian mall" and other sidewalk sales approved by permit as part of a "special event." Eugene Code § 3.337 (later amended). Defendant acknowledged that he is permitted to sell his books in public during a "Saturday Market" that takes place every week from April through December.
[5] Additional requirements were that each vendor submit to the city a hold harmless agreement and proof of liability insurance, conduct business only at the location designated on the license, pay a right-of-way fee, and occupy the vending location five days per week for six hours per day. None of those additional requirements is at issue here.
[6] In both cases, defendant raised his constitutional claims by demurrer, motion to dismiss, and motion for judgment of acquittal.
[7] The dissenting judges also rejected defendant's alternate arguments that the ordinance violated the free speech guarantee of the First Amendment, the equal protection clause of the Fourteenth Amendment, and the equal privileges clause of Article I, section 20, of the Oregon Constitution. Because we dispose of these cases under Article I, section 8, we need not address defendant's alternative arguments.
[8] By "speech," we mean, and understand the city to mean, "the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever," which is referred to in Article I, section 8, of the Oregon Constitution. We use the words "speech" and "expression" interchangeably. See Huffman and Wright Logging Co. v. Wade, 317 Or. 445, 450 n. 5, 857 P.2d 101 (1993) (employing the same terminology).
[9] At all times relevant to these cases, Eugene Code section 3.336 provided that, "[a]s used in sections 3.336 to 3.342, `sell' or `offer for sale' includes but is not limited to the solicitation, exchange, transfer or delivery of goods or services." (Emphasis supplied.) Therefore, contrary to the city's assertion, section 3.338(e), which allows sidewalk vendors to "sell" only food, beverages, flowers, and balloons, is not limited in its application to the "exchange of money for goods," but also applies, inter alia, to "solicitation."
[10] The city points out that "[d]efendant has not come forward with any evidence that he was denied a license under [Eugene Code section] 3.338." Like the Court of Appeals, "[w]e attach no significance to that fact because, as a matter of law, [defendant] was ineligible for a license for the very reason that he maintains makes the ordinance unconstitutional." City of Eugene v. Miller, 119 Or.App. 293, 295 n. 1, 851 P.2d 1142 (1993).
[11] Certainly, the city's interests in reducing congestion, promoting business development, lessening unfair competition, and minimizing the city's liability are legitimate interests that the city has the right and the power to advance.
[12] It is indisputable that a city may enact reasonable regulations to further its legitimate interest in maintaining public health, safety, and welfare. See City of Astoria v. Nothwang, 221 Or. 452, 460, 351 P.2d 688 (1960) (recognizing that city has power to enact police regulations to promote public health and safety); Cove Lodge v. Harris, 134 Or. 566, 572, 294 P. 355 (1930) ("The right of a municipality to exercise the [police] power to preserve the health, to promote the morals and to promote the safety of its citizens has long been settled by repeated adjudications."); cf. State v. Laundy, 103 Or. 443, 458, 204 P. 958, 206 P. 290 (1922) ("The possession and enjoyment of all rights are subject to such reasonable conditions as the governing authority may deem essential to the safety, peace and welfare of the general public"). However, regulations that limit the dissemination of expressive material must be drawn and applied with care, in order to avoid unreasonably impinging on the right of free speech and expression guaranteed by Article I, section 8.
[13] The dissenting opinion in the Court of Appeals noted that "the activity of selling of books in the middle of the street or on the sidewalk is not the same activity as the selling of the excepted commodities and may create different hazards for the public." City of Eugene v. Miller, supra, 119 Or.App. at 305, 851 P.2d 1142 (Edmonds, J., dissenting). We do not dispute the assertion that the activities are "not the same." That fact proves nothing, however. The city has not identified any specific hazard created by the sale of expressive material that justifies the city in treating a vendor of that material more restrictively than vendors of food, beverages, flowers, and balloons.
[14] Because defendant's convictions are reversed on the ground that the application of the two ordinances to defendant's particular activity is constitutionally impermissible, the ordinances, had they not been superceded by amendment, would have remained valid and enforceable in other contexts.
[1] While I have no fundamental disagreement with the categorical approach of State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992), cert. den. ___ U.S. ___, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993), that approach does appear to have certain limitations. An alternate method of analysis applying the principles stated in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), that leads to the same conclusions was set forth in In re Fadeley, 310 Or. 548, 574-78, 802 P.2d 31 (1990) (Unis, J., concurring in part, dissenting in part) (cited in Moser v. Frohnmayer, 315 Or. 372, 375 n. 1, 379, 380, 845 P.2d 1284 (1993)). In my view, that method of analysis to determine whether an enactment is constitutional under Article I, section 8, of the Oregon Constitution, is more complete than the analysis in State v. Plowman, supra. Nevertheless, since the majority has decided this case under the categorical approach of Plowman, I will confine my discussion to the application of that approach.
[2] This historical exception applies to laws where
"the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted then or in 1859 demonstrably were not intended to reach." State v. Robertson, supra n. 1, 293 Or. at 412, 649 P.2d 569.
In addition, an infringement on otherwise constitutionally protected speech may be constitutional under Article I, section 8, if the restriction can be justified under the historically-based "incompatibility exception." In re Schenck, 318 Or. 402, 455-57, 870 P.2d 185 (1994) (Unis, J., specially concurring in part, dissenting in part); In re Fadeley, 310 Or. 548, 577, 802 P.2d 31 (1990) (Unis, J. concurring in part, dissenting in part); In re Lasswell, 296 Or. 121, 125, 673 P.2d 855 (1983).
[3] Although overbreadth challenges and as-applied challenges are analytically similar, they are distinct. See State v. Robertson, supra n. 1, 293 Or. at 437-38, 649 P.2d 569 (recognizing analytical distinction between overbreadth analysis and case-by-case adjudication of constitutionality). Both types of constitutional challenges test the relationship between a governmental action and a valid legislative goal (i.e., proscribing an actual identifiable effect or harm rather than the communication itself). The question in an overbreadth challenge is whether the legislation restricts free expression rights more than is necessary to achieve the concededly valid goal. See id. at 410, 649 P.2d 569 (stating that a claim of overbreadth asserts that "the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees [in the constitution]"). By contrast, the question in an as-applied challenge is whether the application of the legislation "restrains" or "restricts" Article I, section 8, rights because that application does not in fact further the legislative goal in enacting the law. See id. at 417, 649 P.2d 569 (stating that an as-applied challenge asserts that "the statute could not be constitutionally applied to [the defendant's] particular words or expression, not that [the law] was drawn or enacted contrary to Article I, section 8").
[4] This court's opinions in City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), and City of Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510 (1988), state many important principles regarding the Article I, section 8, implications of the regulation of the location, time, and manner of activity. Those cases left unanswered many questions regarding the proper analysis in this area, however. The majority has missed the present opportunity to expand on the principles stated by this court in Tidyman and Purcell and to further develop an analysis of time, location, and manner regulations under Article I, section 8. I am hopeful that when this court is presented with another opportunity to develop this area of law, it will do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/877323/ | 605 P.2d 1135 (1980)
In re the Marriage of Vickie A. FREDERICKSEN, Petitioner and Appellant,
v.
Brad R. FREDERICKSEN, Respondent and Respondent.
No. 14977.
Supreme Court of Montana.
Submitted On Briefs November 13, 1979.
Decided February 7, 1980.
*1136 Jerrold L. Nye, Billings, for petitioner and appellant.
Doris Poppler, Billings, for respondent and respondent.
HASWELL, Chief Justice.
Appellant wife appeals from an order apportioning the marital estate and denial of her motion for a new trial.
The parties to this action had been married for about three and one-half years at the time the wife filed for dissolution of the marriage. The wife was 22 and the husband was 23 at that time. The couple had no children.
The major marital assets were the family home in Billings, some household furnishings and a 1966 Chevrolet race car. The home had a market value of $39,500 and an outstanding mortgage of approximately $30,000. The husband purportedly sold the race car and a trailer for $1,175 prior to the dissolution. The couple had other debts of approximately $2,100.
The only issues presented at trial concerned the value of the marital estate and its proper division. In the final order the trial court subtracted from the value of the house ($39,500) the cost of selling the house and the other debts of the marriage to arrive at a net worth of $4,838.20. The husband was awarded the home and he was required to assume the remaining debts of the marriage. He was to pay $2,419.10 to the wife as her share of the net worth of the marital property.
Thereafter, the wife filed a motion for a new trial on the ground that certain of the District Court's findings did not conform to the evidence and on the basis of newly discovered evidence, viz. the race car had not been sold prior to dissolution as testified to by the husband. From a denial of this motion and from the final decree, the wife appeals.
*1137 The following issues are presented by the wife:
(1) Did the trial court properly divide the marital estate pursuant to section 40-4-202, MCA?
(2) Did the trial court abuse its discretion in denying the wife's motion for a new trial?
Distribution of marital property is governed by section 40-4-202, MCA. This Court will not disturb the decision of the trial court absent a clear abuse of discretion. Eschenburg v. Eschenburg (1976), 171 Mont. 247, 250, 557 P.2d 1014. The test for abuse of discretion is whether the trial court acted arbitrarily without the employment of conscious judgment or exceeded the bounds of reason. In re Marriage of Berthiaume (1977), Mont., 567 P.2d 1388, 34 St.Rep. 921, 924.
In the present case the wife states that it was error for the trial court to omit the value of the race car in determining the value of the marital estate. In its findings of fact, the District Court found that the car had been sold and that the proceeds were used to pay the bills of the parties. Under such circumstances, the District Court did not abuse its discretion in refusing to include the value of the car in the gross marital estate.
The wife indicates several other instances where she does not agree with the court's valuation of the marital estate. As a reviewing court we are not justified in substituting our judgment for that of the trial court. After reviewing the record we cannot say that the trial court acted arbitrarily or exceeded the bounds of reason. There is no indication that the final order was contrary to the guidelines set forth in section 40-4-202, MCA. Consequently, we affirm the trial court's division of the marital estate.
Section 25-11-102(4), MCA, states that a new trial may be granted where there is newly discovered evidence. The language of the statute indicates that an application for a new trial based upon newly discovered evidence is addressed to the sound discretion of the trial court. Gould v. Lynn (1930), 88 Mont. 501, 505, 293 P. 968.
In the present case, the wife contends that the husband had not sold the racing car and that its value should have been added to the gross estate. She contends that evidence that the car was not sold is newly discovered evidence and she was entitled to a new trial on that basis. At a hearing on this motion counsel for the wife produced four photographs of the car, taken after the District Court's final decree, showing the car parked in front of the husband's house, newly painted and restored, and bearing the words "Brad Fredericksen, owner." The husband produced evidence in the form of a letter and a transfer of title which indicate that the car had been sold to one Les Kraft in August 1978.
The trial court must decide whether there was sufficient new evidence to grant a new trial. The evidence is conflicting, but the District Court's denial of the motion for a new trial is supported by the letter from Les Kraft and the indication of transfer of title. We cannot say that there was an abuse of discretion in refusing to grant a new trial on this basis.
Affirmed.
DALY, HARRISON and SHEEHY, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366704/ | 470 F.Supp. 1356 (1979)
Charles ADAMS, Larry Washington, George Andrews, Billy Lovett, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Plaintiffs,
v.
FEDERAL EXPRESS CORPORATION, Defendant.
Civ. No. C-75-141.
United States District Court, W. D. Tennessee, W. D.
April 26, 1979.
*1357 *1358 *1359 *1360 *1361 Howard R. Paul, Memphis, Tenn., Robert M. Baptiste, Roland P. Wilder, Jr., Gary S. Witlen, Washington, D. C., for plaintiffs.
Scott F. May, Watson, Cox, Arnoult & May, Memphis, Tenn., for defendant.
MEMORANDUM DECISION
BAILEY BROWN, Chief Judge.
This action was filed on April 4, 1975 by two of the individual plaintiffs and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter "Teamsters"). Subsequently, two other individual plaintiffs were added. The suit arose in conjunction with an organizing effort by the Teamsters at defendant's Memphis facility. Plaintiffs allege that defendant unlawfully interfered with and coerced its employees in connection with the selection of a collective bargaining representative in violation of § 2 (Third) and (Fourth) of the Railway Labor Act, 45 U.S.C. § 152 (Third) and (Fourth).[1] Defendant is a carrier by air and thus is covered by § 2 of the Railway Labor Act as provided in 45 U.S.C. § 181.
Plaintiffs Charles Adams, Larry Washington and George Andrews were all discharged by defendant in the early part of 1975. They claim they were unlawfully discharged because of their union activities, and seek reinstatement, back pay and restored seniority. Plaintiff Billy Lovett was transferred between departments in early 1975, shortly before he was scheduled to go into military service. He claims that he was transferred because of his union activities. He has since been reinstated in his previous job, but seeks any back pay and seniority rights which he would have received had he never been transferred. In addition, all plaintiffs seek to have this court enjoin defendant from doing a number of things connected with union activity including: (1) threatening employees, (2) interrogating employees, (3) engaging in surveillance of employees, (4) discharging or transferring employees, (5) withholding promised benefits, and (6) conferring additional benefits.
On September 10, 1975, we entered an order denying plaintiffs' request for a preliminary injunction and dismissing the claims of the Teamsters. We dismissed the Teamsters as a plaintiff because we concluded that an uncertified labor union does not have standing to bring an action under the Railway Labor Act. Our order was affirmed in its entirety by the U. S. Court of Appeals for the Sixth Circuit, leaving only the individual claims for resolution. Adams v. Federal Express Corporation, 547 F.2d 319 (6th Cir. 1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225 (1977). The Sixth Circuit further concluded that this court had jurisdiction of claims under 45 U.S.C. § 152 (Third) and (Fourth) without requiring plaintiffs to present them first to the National Mediation Board. Id., at 321. We note at the outset that this court has the power to grant the relief sought. The Railway Labor Act implicitly authorizes this court to award back pay and reinstatement in an appropriate case. Burke v. Compania Mexicana de Aviacion, S. A., 433 F.2d 1031 (9th Cir. 1970); Griffin v. Piedmont Aviation, Inc., 384 F.Supp. 1070 (N.D.Ga.1974). This court also has the authority to enjoin an employer from violating *1362 the provisions of the Act at issue here. Texas & New Orleans Railroad Company v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 567-570, 50 S.Ct. 427, 74 L.Ed. 1034 (1930). If any of the individual plaintiffs are entitled to relief, then we believe it would be within this court's power to grant the additional injunctive relief necessary to prevent any further coercion of their rights to select a bargaining representative under the Act.[2] We now turn to the claims of the individual plaintiffs. We first will address their prayers for individual relief and then will address their prayers for general injunctive relief.
I. Plaintiff Charles Adams
Plaintiff Charles Adams was employed by defendant from September 23, 1974 until March 12, 1975 to perform janitorial and building maintenance work. It is undisputed that Adams' discharge on March 12 was precipitated by his failure to remove a "Go Teamsters" button after being ordered to do so by Tucker Taylor who was then Senior Vice President for Industrial Relations. Adams contends that he was entitled to wear the button and that his discharge for failure to remove the button amounted to coercion in the choice of a bargaining representative in violation of the Railway Labor Act. Defendant counters that Adams was subject to immediate discharge for insubordination pursuant to company policy (Ex. 22, p. 15) and that, in any event, his refusal to remove the button amounted to a third disciplinary infraction which also authorized his discharge under company policy (Ex. 22, p. 16). Adams' previous two reprimands involved tardiness to and absences from work (Ex. 2, pp. 1-3). Defendant further contends that there was good reason to order Adams to remove his button, independent of the fact that the button displayed support for the Teamsters, in that there was a danger that a loose metal object could cause foreign object damage to defendant's jet aircraft engines by being sucked into one of them.
Despite all of the testimony about the foreign object damage that a metal button could cause to an aircraft, it is clear that this was not the reason that Vice President Taylor ordered Adams to remove his button. Taylor candidly testified that he told Adams to remove the button because he felt that it was "inflammatory," that it would be disruptive to other employees, and that it would offend defendant's investors, lenders and directors who were on the premises that day. (Tr. 997-998.) Taylor further stated that he did not mention any potential foreign object damage to Adams. (Tr. 1006-1007.) The fact that Taylor was concerned about the button being "disruptive" and not about foreign object damage is confirmed by his memorandum of March 13, 1975 in which he described his conversation with Adams. (Ex. 2, p. 4.) In fact, Taylor acknowledged that he would not have asked Adams to remove a "Church of Christ" button because such a button would not have been as controversial. (Ex. 2, p. 4; Tr. 999, 1005.) We find, therefore, that Taylor ordered Adams to remove his "Go Teamsters" button solely because Taylor felt it was inflammatory.
We conclude that Taylor's order to Adams to remove the Teamster button and Adams' subsequent discharge for refusing to remove the button unlawfully coerced Adams and other employees in their selection of a bargaining representative in violation of § 152 (Third) and (Fourth). We reach this conclusion because the admitted purpose of Taylor's order was to cover up visible expressions of support for the Teamsters simply because such expressions of support might be "disruptive" or "inflammatory." We believe that employees have the right to visibly demonstrate their support or opposition to a particular bargaining *1363 representative absent some exceptional reason for curtailing such expression. Here, the suggested reason of potential foreign object damage was clearly an afterthought and was not the basis of the order or the decision to terminate Adams.
Although very few cases interpreting the Railway Labor Act have dealt with the kinds of activity that may be found coercive under § 152, our conclusion is buttressed by cases interpreting § 8(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (3). Those provisions of the NLRA prohibit an employer covered by that Act from interfering with, restraining, or coercing employees in the exercise of their organizational rights and from "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." While employers covered by the Railway Labor Act are not subject to the provisions of the NLRA, the NLRA and cases interpreting it nevertheless provide some guidance in the interpretation of certain provisions of the Railway Labor Act. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), reh. denied, 394 U.S. 1024, 89 S.Ct. 1622, 23 L.Ed.2d 51 (1969)
The right of employees to wear union insignia, including buttons, has long been protected under the NLRA, and discharge of employees for wearing such insignia normally is held to violate 29 U.S.C. § 158(a)(1) and (3). Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802-803, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 818-819 (6th Cir. 1975). The Sixth Circuit has carved out an exception to this rule "where there are `special considerations relating to employee efficiency and plant discipline.'" Larand Leisurelies, supra at 819. Defendant has not demonstrated that the wearing of Teamster buttons made its operation any less efficient and, despite Taylor's belief that the buttons were "disruptive," defendant has not demonstrated that any disciplinary problems were attributable to the buttons.
Adams' discharge cannot be justified by the mere fact that he may have been guilty of "insubordination" or that he had two reprimands in his file pertaining to unrelated subjects. An employee is under no obligation to obey an order that unlawfully coerces him in the exercise of his rights under § 152, and he cannot lawfully be discharged for his failure to obey such an order. Adams was clearly discharged because of his refusal to obey an unlawful order and for no other reason.
Accordingly, we conclude that Taylor's order directing Adams to remove his Teamsters button and Adams' subsequent discharge violated 45 U.S.C. § 152 (Third) and (Fourth). We therefore conclude that Adams is entitled to reinstatement with complete seniority rights and back pay to March 12, 1975.
II. Plaintiff Larry Washington
Plaintiff Larry Washington was employed in the "hub" of defendant's operation from February 21, 1974 until February 7, 1975[3] as a sorter and loader of packages shipped by defendant. It is undisputed that Washington's discharge was actually precipitated by an incident in the restroom while Washington was at work. Defendant contends that Washington was justifiably discharged for sleeping in the restroom following a series of reprimands regarding the quality of his work. Washington, on the other other, maintains that his discharge and his previous reprimands were merely pretextual in that defendant really wanted to get rid of him because of his union activity.
In construing the Railway Labor Act, the U. S. Court of Appeals for the Seventh Circuit has said:
*1364 A claim of discharge in violation of § 152 raises the question of the employer's motivation. Anti-union motivation invalidates even a discharge which could be justified on independent grounds.
Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir. 1974). This same standard has been applied to determine whether a discharge violates § 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3). NLRB v. J. P. Stevens Co., Inc., 563 F.2d 8, 20 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1240, 55 L.Ed.2d 765 (1978); Allen v. NLRB, 183 U.S.App.D.C. 83, 89, 561 F.2d 976, 982 (1977). Thus, even if Washington might have lawfully been discharged for some other reason, he is entitled to relief if his union activities played any part in his termination.
Washington testified that he was feeling ill on the morning that he was terminated. (Tr. 366.) There is some dispute as to whether or not he asked his supervisor, Nelson Johnson, for permission to go home, but in any event he continued to work his shift. After he had finished loading the flight on which he was working, Washington went into the restroom. Supervisor Johnson testified that there was nothing wrong with Washington using the restroom at that particular time in between flights. (Tr. 583.) However, Johnson further testified that he missed Washington and went into the restroom to look for him. (Tr. 558.) Johnson stated that Washington immediately jumped up and flushed the toilet. (Tr. 558.) Johnson said he then went back outside the restroom and waited to see if Washington would come out. (Tr. 559.) When Washington failed to emerge, Johnson testified that he went back into the restroom with another supervisor, Rudy Myles, and that they peeked into the stall and saw Washington asleep with his pants up and legs crossed on the toilet seat. (Tr. 560.) Johnson testified that he then left the restroom and told Ron Van, who was hub manager at that time, that Washington was sleeping on the job. (Tr. 560.) Van testified that he waited a while before he went into the restroom where he found Washington asleep with his pants up and feet on the floor. (Tr. 707, 709, 725, 729). Van stated that he climbed onto the toilet in the adjoining stall and pounded on the wall to wake up Washington. (Tr. 726.) Everyone agrees that Van took Washington back to his office and immediately terminated him. Washington disputed the contention that he was asleep in the restroom and testified that he was using the toilet in a normal fashion when Manager Van came in. (Tr. 392-394.) We find that Washington's discharge was caused by his being found asleep on the job when he was needed for work and that his discharge was therefore justified.
It should be pointed out that Washington himself stated that he was not discharged solely for his union activities but also because of Van's continued animosity toward him. (Tr. 376.) Washington had had several previous run-ins with Van before the morning of his termination. On November 2, 1974, Van discharged Washington ostensibly because of Washington's failure to load first priority packages before second priority packages. (Ex. 1, pp. 3-4; Tr. 702-704.) However, Washington appealed to Van's superior, Roger Larson, and Washington was reinstated three days later. (Ex. 1, p. 5; Tr. 358, 704-705.) Following this incident, Washington testified that Van was antagonistic toward him. (Tr. 359.) Then on February 3, 1975, Van demoted Washington from his status as team captain because Washington had missed a package which should have been loaded before other packages. (Ex. 1, pp. 6-7; Tr. 705-706.) Van reported that he told Washington that he should probably fire Washington at that time, but that he would give Washington one more chance. Four days later, Washington was terminated as a result of the restroom incident.
III. Plaintiff George Andrews
Plaintiff George Andrews was employed as a welder in defendant's engine shop from September 25, 1973 until April 10, 1975, when he was discharged. Andrews contends that he was discharged for his union activity. Defendant contends that Andrews *1365 was discharged because he failed to report to work on April 9, 1975 without notifying his superior as required by company policy. (Ex. 22, pp. 10-11.) Defendant contends that this was Andrews' fourth violation of this nature, which subjected him to termination. (Ex. 22, p. 16.)
As indicated in our discussion of plaintiff Washington, if Andrews can show that his discharge was partially motivated by anti-union sentiment, he is entitled to relief even if there were other justifiable reasons for his discharge. Conrad, supra, at 918. It is clear that defendant's management knew about Andrews' union activity at the time he was fired. (Tr. 292-300, 847.) Indeed, defendant's director of maintenance, Fred Buechling, acknowledged that he had discussed the union organization drive with Andrews. (Tr. 847.)
It is our finding, however, that Andrews was discharged for entirely legitimate reasons that had nothing to do with his union activity. Andrews testified that his union activity began in February, 1975. By that time, Andrews already had received three reprimands for failing to report to work without calling in on time. (Ex. 3, pp. 3, 4, 6.) On two of those occasions, Andrews reportedly did not call in at all and, on the third occasion, he reportedly called in at noon instead of two hours before the beginning of his shift as required by company policy. For the last of these three violations, Andrews was suspended for three days without pay. (Ex. 3, p. 4; Tr. 320-321.) In addition, the written memorandum from the engine shop manager at the time of the third violation, Larry Streiber, to Andrews stated: "If this situation occurs again or if you violate any other company policies, you will receive further disciplinary action, up to and including discharge." (Ex. 3, p. 4. Emphasis added.) Andrews acknowledged that he received that letter. (Tr. 320.) Andrews further acknowledged that he did not believe union activity had anything to do with these first three reprimands since he did not begin his involvement with the union until one month after the third reprimand. (Tr. 327-328.) Andrews admitted that he failed to report to work on April 9, 1975 and that he failed to call in. Since he had been reprimanded three times for similar violations before beginning his union activity and since he had been warned in the last reprimand that any future violations might result in termination, we find that Andrews was discharged for continually violating company policy and not for any union activities.
In seeking to demonstrate that anti-union animus was really the cause of his discharge, Andrews relies in part on the fact that Engine Shop Manager Streiber, who signed two of the reprimands, was transferred because of his inability to get along with the employees in the shop. (Tr. 299, 896.) Apparently it is Andrews' theory that the company knew that any reprimands issued by Streiber were unreliable, and therefore defendant's use of these reprimands to justify firing Andrews leads to the inference that he was fired for his union activity. We find this reasoning unpersuasive. It seems obvious that every decision made by Streiber during his tenure as shop manager does not become a nullity simply because he was transferred for poor employee relations. Andrews admits that he repeatedly violated company policy, and on something as clear-cut as this, we see no reason why defendant should have questioned Streiber's decision that these reprimands were appropriate.
In addition, Andrews stated that it was impossible to comply with defendant's policy of calling in sick two hours before the beginning of his shift because his shift began at 7:00 a. m. and no one was at the switchboard at 5:00 a. m. (Tr. 322.) It may be true that this policy was unreasonable as applied to Andrews. However, he was aware that he was being required to comply with this policy when he received his three reprimands. There is no indication that Andrews made any effort to complain to defendant that the policy should not apply to someone on his shift. The fact that he was discharged for a fourth violation of this policy cannot be attributed to his union activity no matter how unreasonable he felt the policy was in his case.
*1366 Andrews next contends that several employees in other departments had worse absentee records than he did and yet were not fired. He again asks the court to infer from this that he was fired for his union activities. Maintenance Director Buechling admitted that there were several employees with bad absentee records who had never been terminated or even suspended. (Tr. 901; Ex. 10.) However, there is no evidence that these other employees were in the same department or division as Andrews, that their supervisors applied the policies as strictly as Andrews' supervisors did, or that they had failed to call in as required. We cannot conclude that Andrews' firing was pretextual merely because some employees in other departments dealing with different supervisors may have been treated differently.
Finally, Andrews has failed to show that he was involved in any great upsurge of union activity during the days immediately preceding his discharge. It is true that the complaint in this case was filed April 4, 1975, but Andrews was not a plaintiff at that time. Andrews was an active participant at a union meeting on March 9, 1975, and at a meeting between engine shop employees and management on March 10. (Tr. 295-298.) It is hard to believe, however, that Andrews was fired in April for his role in these meetings in March, since management apparently thought the employee complaints were justified enough to have Engine Shop Manager Streiber removed the same day that the engine shop meeting was held. (Tr. 300.)
Accordingly, we find that plaintiff Andrews was discharged for violating defendant's policy regarding absenteeism and not for any union activity. He is therefore not entitled to any relief.
IV. Plaintiff Billy Lovett
Plaintiff Billy Lovett first became employed by defendant in August, 1972 as an apprentice mechanic. By all accounts, he was an extremely capable mechanic and quickly progressed to a lead mechanic position. Unlike the other three plaintiffs, Lovett is still employed by defendant. The gravamen of Lovett's complaint is that he was transferred against his will around March 10, 1975 because of his union activities. Lovett, who has returned to his preferred job of lead mechanic, seeks back pay and restoration of the department seniority that he lost as a result of the transfer. (Tr. A-9-10.)[4]
The circumstances surrounding Lovett's transfer began around January or February of 1975 when he informed defendant that he was going to enlist for a four-year term in the Air Force. (Tr. 103, 110.) Lovett was due to enter the Air Force on April 28, 1975. (Tr. 127.) It is undisputed that Maintenance Director Buechling and Edward Worthington, manager of hangar and line maintenance, called Lovett into Worthington's office on March 10, 1975 and told him that they wanted to transfer him to the Training Department to help set up a training course for lead mechanics. (Tr. 100-101, 848-849.) Lovett said they told him he had no choice in the matter. (Tr. 101.) This was corroborated by Buechling and Worthington. (Tr. 882-883, 933.) Despite the fact that the transfer was considered by management to be a promotion because Lovett was to be paid a salary instead of an hourly wage, Lovett resisted the transfer. (Tr. 102.) Lovett finally decided to accept the transfer after several discussions with Buechling. (Tr. 107-110.) Lovett was apparently persuaded primarily by the company's argument that he would needlessly keep others from being promoted if he remained in the lead mechanic's position when he was needed elsewhere. (Tr. 109.) This point was reiterated in a memorandum sent to Lovett by Vice President Tucker Taylor. (Ex. 17.)
Lovett did spend the next month and a half in the Training Department before leaving the company as scheduled on April 28, 1975. (Tr. 127.) Less than a month after leaving the company, Lovett applied *1367 for a hardship discharge from the Air Force due to the illness of his father. (Tr. 111.) After some initial uncertainty as to whether or not Lovett would be reemployed at Federal Express, he returned to work there around August 1, 1975 following receipt of his official discharge. (Tr. A-7-8.) He was placed back in the Training Department at the same salary, and produced several training manuals. (Ex. A-3; Tr. A-8, A-29-34.) On March 29, 1976, Lovett was transferred back to the Maintenance Department as a mechanic at his request. (Tr. A-34-35.) He started at the bottom of the pay scale for a mechanic, but by December 12, 1976, he was paid at the top of the scale for senior mechanics. (Tr. A-36-38.) On August 29, 1977, Lovett was promoted back to lead mechanic (Tr. A-40), which was the position he held when he was transferred to the Training Department in March of 1975. He is now paid as well as any other lead mechanic in the Maintenance Department. (Tr. A-40.) He ranks sixth in department seniority, when he would have ranked first in seniority had he never been transferred. (Tr. A-41.) This reduced seniority affects his right to bid for desired shifts, but does not affect his rate of pay. (Tr. A-41-42.)
The sole question to be decided in conjunction with Lovett's prayer for individual relief is whether or not he was unlawfully transferred because of his union activity.[5] As with a discharge, an employer is free to transfer an employee for any reason as long as there is no statutory or contractual bar. However, any transfer which is based in part on an employee's union activity must be held unlawful. See NLRB v. Varo, Inc., 425 F.2d 293, 301 (5th Cir. 1970).
As the court noted at the close of the 1975 hearings, Maintenance Director Buechling admitted that one reason for Lovett's transfer was to isolate Lovett from his fellow employees because of his union activity. (Tr. 851-852.) Buechling further testified that he considered Lovett a "disruptive force" in the maintenance department. (Tr. 890.) Moreover, there is additional evidence that Lovett's transfer to the Training Department a month and a half before his scheduled departure for the Air Force was pretextual. Anthony Franzolino, the director of training, testified that by the time Lovett himself had completed the introductory training program necessary for his work in the Training Department, his date of departure had arrived. (Tr. 929.) Franzolino further testified that such an introductory program normally takes six months far in excess of the month-and-a-half that Lovett was scheduled to work in the department. (Tr. 927.) In addition, if an employee gives notice that he is going to leave shortly, it strikes the court that the normal response of the employer would be to let him finish in the job he had been doing rather than transfer him to something brand new. We further find that defendant's argument to Lovett that he was keeping other employees from being promoted is suspect in view of the fact that Lovett was going to leave at the end of April anyway. It certainly would not have made that much difference to the other employees if their promotions had come seven weeks later. There is also the testimony of three witnesses, unrefuted during the hearings on this matter, that Senior Vice President Jim Riedmeyer told employees at a meeting that Lovett was transferred because of his union activity. (Tr. 71, 104-105, 205.) Finally, there is testimony that the transfer occurred at the same time employees began wearing Teamster buttons to work. (Tr. 100-101.) Indeed, the transfer occurred only two days before plaintiff Charles Adams was discharged for refusing to remove his button and only a day after the union meeting on March 9.
Defendant attempts to counter this evidence by demonstrating that Lovett was free to wander around company property and talk to employees after the transfer. *1368 (Tr. 917.) However, Buechling testified that Lovett's freedom in his new position was "supposed to be restricted" even if it did not work out that way. (Tr. 855.) In sum, we find the evidence overwhelming that plaintiff Lovett was transferred because of his union activity.
Defendant further appears to argue that, even if this is true, the transfer was nevertheless justified because Lovett was soliciting for the union on company time. (Tr. 851-852.) However, Buechling testified that he had no personal knowledge of what Lovett was doing on company time, only reports from supervisors. (Tr. 892.) Manager Worthington testified that the employee who replaced Lovett as lead mechanic following Lovett's transfer had previously complained about Lovett spending too much working time soliciting for the union. (Tr. 934.) However, this is also indirect evidence, since the employee did not testify himself. In short, there is no direct evidence that Lovett in fact engaged in solicitation on company time.
Even if Lovett did solicit on company time, however, there is no evidence that he violated any company rule by doing so. It is now well settled that an employer has a right to promulgate a no-solicitation rule during working hours. Republic Aviation Corp., supra, 324 U.S. at 803 n. 10, 65 S.Ct. 982; Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976). However, in the absence of such a rule, we cannot hold that a transfer for soliciting on behalf of the union on company time is justified. This is particularly true in view of Worthington's testimony that he never complained to Lovett about Lovett's purported solicitation on company time even though, according to Worthington, Lovett's job performance deteriorated. (Tr. 955-956.)
The truth of the matter is that Lovett, who had been a national merit scholar in high school and had shown great aptitude for mechanical work on defendant's jet aircraft, was in line to move up into management with a bright future in that area, and management could not fathom why Lovett would forfeit this opportunity by becoming active in the Teamsters' effort to organize defendant's employees. In short, from management's point of view, Lovett was bent on not rising into management, which management did not understand and resented. However, this was Lovett's choice and management could not properly transfer him or in any way punish him for his union activity.
For all these reasons, we conclude that plaintiff Lovett was unlawfully transferred on March 10, 1975 because of his union activities in violation of 45 U.S.C. § 152 (Third) and (Fourth). Accordingly, Lovett is entitled to the full department seniority he would have had if he had never been transferred. Furthermore, Lovett is entitled to any back pay lost as a result of the transfer, although this might be difficult for him to demonstrate in view of the amount he was paid while he was in the Training Department.
V. Other Injunctive Relief
In addition to the individual relief sought by plaintiffs, they have prayed this court to enjoin defendant from engaging in various types of conduct which plaintiffs contend are coercive to employees in the exercise of their organizational rights. Although the Teamsters have been dismissed as a plaintiff in this lawsuit, plaintiff Adams would once again be subject to defendant's policies if he decides to return to the company and plaintiff Lovett continues to be subject to any acts of defendant. Accordingly, these two plaintiffs have standing to seek the injunctive relief requested. It is true that the Teamsters' 1975 organizational drive ended unsuccessfully. See Adams, supra, at 324-325. However, this fact would not affect the propriety of granting injunctive relief to regulate defendant's conduct in any future representation efforts. Accordingly, plaintiffs' prayers for injunctive relief are not moot.
In reviewing the record as a whole, we have concluded that plaintiffs are entitled to some of the relief requested but are not entitled to all of it. We will first discuss those areas in which plaintiffs have not *1369 made a sufficient showing that injunctive relief is necessary. We will then discuss those areas in which defendant must be enjoined.
A. Plaintiffs seek to have us enjoin defendant, through its agents, from threatening economic reprisals or financial ruin if a union is selected to represent the employees. Under the NRLA, an employer does not commit an unfair labor practice if he makes "a prediction as to the precise effects he believes unionization will have on his company" as long as the prediction is "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences." NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969), reh. denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969). We believe this standard should apply as well in determining whether management predictions are coercive under the Railway Labor Act.
As we indicated at the close of the 1975 hearings in this case, this court is convinced based on the testimony of Board Chairman Fred Smith that defendant was in a precarious financial situation during the Teamsters' 1975 organizational drive. The company was dependent on its investors to prevent it from going into bankruptcy, and Smith was concerned that a union would scare off these investors. We therefore find that defendant's statements about the negative effect of unionization on the company's financial status were made in good faith on the basis of the facts known to defendant at that time. Accordingly, we conclude that such statements were not coercive and hence we do not enjoin defendant from making similar predictions in the future as long as such predictions are based on fact. We point out, however, that defendant's economic picture may have changed since 1975, and any new predictions of what effect unionization would have must be based on defendant's current financial circumstances.
B. We find that there is evidence in the record to support the statements made by defendant in Exhibits 4, 6 and 7 that the Teamsters' organization attempt was attributable to a desire by defendant's competitors to harm the company. (Tr. 447-448, 487, 490, 493; Ex. 4, p. 2.) We do not intend to imply that the representation drive was in fact attributable to defendant's competitors, but rather we merely find that there was some factual basis for defendant's statements. Accordingly, we do not enjoin defendant from making such statements with regard to any future organizational attempt as long as there is sufficient factual basis for the statements.
C. Plaintiffs seek to have us enjoin defendant from interrogating its employees about union activities. It is not inherently coercive for management personnel to question employees about a union organizing campaign or to discuss such a campaign with them. Questioning of an employee by management only becomes coercive interrogation when its probable effect is to inhibit union activity. See Larand Leisurelies, supra, at 819. We find that the instances of questioning cited by plaintiffs in the record do not indicate that the employees questioned were coerced in violation of 45 U.S.C. § 152 (Third) and (Fourth). Rather, we find that almost all of these conversations were of a casual nature and that the employees questioned were not intimidated. Accordingly, we do not enjoin defendant from questioning its employees about union activities in the future so long as there is no hint of intimidation or reprisals in the conversations.
D. Plaintiffs pray that we enjoin defendant from engaging in surveillance of employees engaged in union activity. Plaintiffs have only pointed to one instance of alleged surveillance that of an unidentified photographer taking pictures of union leafletting. (Tr. 406-410.) This evidence is insufficient to find that defendant has engaged in coercive surveillance, and hence an injunction against surveillance is not warranted.
E. Plaintiffs contend that defendants unlawfully conferred benefits on *1370 its employees during the union campaign in order to undermine the organization effort. Plaintiffs specifically point to the institution of beer parties, an activities club and an incentive program in the hub. The Supreme Court has held that § 8(a)(1) of the NLRA prohibits an employer from engaging in "conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). We believe this standard is also appropriate to determine whether employees are "coerced" within the meaning of the Railway Labor Act by conferral of benefits on them. In this case, we find that instituting occasional beer parties and making membership in a recreational club available to employees are such insignificant acts that their effect on unionization would be minimal. Indeed, plaintiff Washington testified about the negligible effect of these activities on the organizing effort. (Tr. 355.) In addition, we find that the incentive program introduced in the hub was not designed to undermine the union, but rather was introduced for the legitimate business purpose of getting the aircraft loaded more promptly. Indeed, employee Thomas Patterson, a strong union supporter, testified that as many as 10 aircraft a night were departing significantly late before the incentive program was instituted. (Tr. 193.) Since none of these programs and activities coerced the employees in their selection of a bargaining representative, we do not enjoin such conduct by defendant in the future.
F. Plaintiffs seek an injunction against defendant's solicitation of employee grievances during union organizational campaigns. It is clear that a grievance meeting was held between management and engine shop employees on March 10, 1975 which resulted in the immediate transfer of the engine shop manager, Larry Streiber. However, this was the only grievance meeting cited by plaintiffs during this period, and we find its purpose was primarily to cure a serious morale and quality problem in the engine room rather than to discourage union activity. (Tr. 443, 447.) Board Chairman Smith did acknowledge that part of the reason for calling the meeting was to discuss the sources of employee unrest that precipitated the union campaign. (Tr. 447.) This in and of itself does not make the grievance meeting coercive, however. We adopt the standard that it is permissible for an employer to solicit grievances during an organizational campaign unless "the grievance solicitation is accompanied by an express or implied promise to remedy the grievance if the Union is rejected, or if such promise otherwise serves as an inducement to vote against the Union." Hedstrom Co. v. NLRB, 558 F.2d 1137, 1142 n. 12 (3d Cir. 1977). We do not find any evidence that there was any promise to remedy employee grievances conditioned upon rejection of the union, nor do we find that this one grievance meeting had the effect of inducing employees not to vote for the union. Accordingly, we conclude that this grievance meeting was not coercive under the Railway Labor Act, and we decline to enjoin defendant from conducting such meetings in the future.
G. Plaintiffs request that we enjoin defendant from prohibiting employees from union soliciting during periods when they are not actually working. There is no evidence that defendant prohibited such activity, and thus no injunctive relief is required.
H. Plaintiffs seek to have us find that defendant's treatment of K. B. Khan, a union supporter, was coercive. Khan is not a plaintiff to this lawsuit. However, if we concluded that defendant's conduct with respect to Khan was coercive, we could enjoin similar conduct by defendant in the future. The stories of Khan and Manager Worthington are diametrically opposed as to the circumstances of Khan's repudiation of his first affidavit and signing of his second affidavit. (Exs. 14, 15; Tr. 74-75, 937-944.) Weighing the evidence, we find that plaintiffs have not demonstrated that Khan was improperly coerced into signing the second *1371 affidavit. Moreover, in view of the fact that Khan changed his story several times, we do not find the letter dated May 30, 1975 from James Riedmeyer to Khan threatening an investigation, possible perjury charges and possible termination unduly coercive. If this letter had been put up for public display, our view might be different. Counsel for plaintiffs alluded to the existence of a public notice of what would happen to Khan because of his statements, but there is no evidence to demonstrate that defendant ever made its statements to Khan public. (Tr. 971-973.) Accordingly, we find that defendant's actions concerning Khan's affidavits were not coercive and hence we decline to enjoin defendant from such conduct in the future should a similar situation arise.
I. Turning to areas in which we conclude that injunctive relief is warranted, it is clear from our findings and conclusions with respect to plaintiff Adams that an employee has been discharged in part for his union activities. Accordingly, we will enjoin defendant and its agents from either discharging or threatening to discharge any employees because of their involvement with unionization of defendant's employees.
J. It is further clear from our findings and conclusions with respect to plaintiff Lovett that defendant has unlawfully transferred an employee in part because of his union activities. Accordingly, we will enjoin defendant and its agents from either transferring or threatening to transfer any employees because of their involvement with unionization of defendant's employees.
K. It is clear from our findings and conclusions with respect to plaintiff Adams that defendant has unlawfully ordered the removal of union buttons. There is further evidence that defendant has created some confusion as to whether employees are permitted to wear union jackets. (Tr. 172-181, 750-752, 771-778.) As we previously stated, employees must be permitted to wear union insignia unless there is a strong reason for requiring their removal unrelated to anti-union animus on the part of the employer. Larand Leisurelies, supra, at 819. There was much testimony in this case that buttons might cause foreign object damage to the aircraft, but the testimony indicated that other types of loose objects were permitted in the vicinity of the aircraft. (Tr. 779-782.) Accordingly, we will enjoin defendant and its agents from ordering the removal of union insignia, including jackets and buttons, unless there is a compelling reason for prohibiting such insignia. Even if defendant provides such a compelling reason, any ban must be uniformly enforced irrespective of the particular message sought to be displayed. Moreover, any reason given for banning such insignia will be carefully scrutinized to determine whether it is merely a pretext for stifling expressions of union support. The mere fact that union insignia may create hostility between different employees or between employees and management is not a sufficient reason to justify a ban on insignia.
L. Plaintiffs seek to have this court enjoin defendant from stating that it is not permitted to implement planned benefits during an organizational campaign. Plaintiffs refer in particular to a letter to employees from Senior Vice President Michael Fitzgerald which stated that a new wage plan and other programs which had been decided upon could not be implemented "simply because it is against the law for us to proceed with these programs during an organizational attempt." (Ex. 5.) As we have already noted, it is sometimes considered coercive for an employer to confer benefits on employees during an organization campaign. See Exchange Parts, supra. Nevertheless, it is also considered coercive if an employer threatens to withhold benefits already agreed upon in the face of an organization effort. See Sta-Hi Division, Sun Chemical Corporation v. NLRB, 560 F.2d 470, 473-475 (1st Cir. 1977); NRLB v. Juniata Packing Company, 464 F.2d 153, 154 (3d Cir. 1972); NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 97-98 (5th Cir. 1970). Courts have noted that this is a fine line which can cause problems for an employer. However, the guiding principle is that the *1372 employer must act as he would in the absence of a union campaign. Sta-Hi, supra, at 474. As the U. S. Court of Appeals for the Fifth Circuit has stated:
The cases make it crystal clear that the vice involved in both the unlawful increase situation and the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited . . ..
Dothan Eagle, supra, at 98 (emphasis in original). Since the Fitzgerald letter falsely stated that defendant would be required to withhold impending benefits during the union campaign, we conclude that this statement was coercive in violation of the Railway Labor Act. Accordingly, we will enjoin defendant and its agents from making any statements during any future union campaign to the effect that defendant is prevented from granting any impending benefits during the course of such campaign.
M. There is unrefuted evidence that Senior Vice President Fitzgerald advised employee Thomas Patterson not to wear his union jacket because he might be violently attacked. (Tr. 180, 772-773.) We conclude that such statements are coercive. Accordingly, we will enjoin defendant and its agents from making any statements that suggest employees may suffer physical harm for supporting a union organizing effort.
N. Given the extent of defendant's violations of the Railway Labor Act outlined in this opinion, we further enjoin defendant and its agents from coercing, interfering with or influencing its employees in any way with respect to their right to choose a bargaining representative under 45 U.S.C. § 152 (Third) and (Fourth).
O. Defendant is hereby ORDERED to post copies of this decision at all places on defendant's premises normally used to communicate with employees.
VI. Conclusion
For the foregoing reasons, defendant will be enjoined from committing violations of the Railway Labor Act as set out in detail in Section V of this decision. Plaintiffs Larry Washington and George Andrews are entitled to no relief. Plaintiff Charles Adams is entitled to be reinstated to the position he held at the time he was discharged with full seniority rights and back pay. Plaintiff Billy Lovett is entitled to the full department seniority he would have had if he had not been transferred in March of 1975 and any back pay which he lost as a result of the transfer. In each of these cases, the amount of back pay is to be offset by the income of the particular plaintiff since the time of the discharge or transfer. Plaintiff Lovett, in particular, may have difficulty demonstrating that he lost any pay at all in view of his transfer to a well-paying position. Furthermore, the amount of back pay is to be computed without interest, since much of the delay in this case resulted from plaintiffs' unsuccessful appeal of this court's order of September 10, 1975. Counsel will prepare and submit a decree forthwith other than as to back pay.
Counsel are hereby given 60 days in which to reach a mutually satisfactory agreement as to the amount of back pay owing to plaintiffs Adams and Lovett. If no agreement can be reached within 60 days, the question of back pay will be referred to a Magistrate for resolution.
The Clerk is directed to withhold judgment in this case until the amount of back pay is determined.
It is so ORDERED.
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
Defendant has moved this court to alter or amend our decision of April 26, 1979 in which we determined that plaintiffs Charles Adams and Billy Lovett were entitled to individual and injunctive relief under the provisions of § 2 (Third) and (Fourth) of the Railway Labor Act, 45 U.S.C. § 152 (Third) and (Fourth).
First, defendant challenges this court's conclusion that plaintiff Adams' discharge *1373 for failing to remove his Teamster button was unlawful. Defendant contends that this court misinterpreted the Sixth Circuit's opinion in Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814 (6th Cir. 1975). In that case, interpreting §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (3), the Sixth Circuit held that employees must be permitted to wear union insignia unless there are "special considerations relating to employee efficiency and plant discipline." Id., at 819. We found that no such special considerations were present, and nothing in defendant's current motion or memorandum convinces us otherwise. Not only was there no evidence whatever to show that the button adversely affected efficiency or discipline, but the evidence instead demonstrated that Vice President Tucker Taylor ordered Adams to remove his button because Taylor felt it would be offensive to defendant's bankers who were visiting the plant that day. It does appear that defendant was in grave financial trouble at that time, and that, if the bankers on the premises had learned that the Teamsters Union was seeking to organize defendant's employees, this might well have tipped the scale and caused them to foreclose or call their loans. This would indeed have been a tragedy, not only for defendant's employees but also for the entire Memphis community. This is, however, only an extreme example of a position often taken by employers i. e. that a union would be bad for their businesses and employees. We do not understand that such a contention, even if demonstrably true, is a legitimate basis for proscribing the wearing of union insignia under the doctrine of Larand Leisurelies, Inc., supra.
Defendant next contends that we improperly concluded plaintiff Billy Lovett was entitled to full department seniority and any lost back pay as a result of his unlawful transfer from the Maintenance to the Training Department. Defendant argues that Lovett can only complain, if at all, about the period between March 10, 1975 through April 28, 1975 before he voluntarily left defendant to enter the Air Force. According to defendant, any time that Lovett spent in the Training Department after being discharged from the Air Force was the result of a new agreement between Lovett and defendant, and hence was not the result of any unlawful transfer. This argument completely ignores the fact that, if the unlawful transfer had not occurred, Lovett would have been entitled to be reinstated to his position in the Maintenance Department under the Veterans Re-Employment Rights Act, 38 U.S.C. § 2021 et seq. As it was, since Lovett was in the Training Department immediately before going into the service, his only option upon return to defendant was to remain in the Training Department. The fact that he had to return to the Training Department rather than the Maintenance Department because of defendant's unlawful practices certainly cannot be held against him.
Defendant next contends that we applied the wrong test for determining whether a discharge or transfer is "coercive" within the meaning of the Railway Labor Act. We applied the rule announced in Conrad v. Delta Airlines, Inc., 494 F.2d 914, 918 (7th Cir. 1974), in which the Seventh Circuit stated: "Anti-union motivation invalidates a discharge which could be justified on independent grounds." Defendant argues that this rule is inconsistent with decisions of the Supreme Court and other circuits, which purportedly hold that a discharge is lawful if the employer states some valid reason for it regardless of whether the discharge is partially motivated by anti-union sentiment.
At the outset, the result would be the same here even if we agreed with defendant that we applied the wrong test. It is clear from the findings of this court that plaintiff Adams was discharged for wearing his union button and plaintiff Lovett was transferred to get him out of the Maintenance Department because of his union activity. We did not find any valid explanation for either action. Thus, Adams and Lovett would be entitled to relief even under the test suggested by defendant.
Apart from that, however, defendant has completely misrepresented the cases on *1374 which it relies. Defendant states that the Supreme Court has set out a four-part test which must be met for a discharge to violate § 8(a)(1) of the NLRA. NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 121, 13 L.Ed.2d 1 (1964). However, the Supreme Court merely stated that a violation occurred if those four elements were present. The court did not say that each of those elements was necessary for a violation of § 8(a)(1). Indeed it is obvious from looking at the four elements that they cannot apply to every discharge situation. For example, if an employer discharged an employee expressly for union activities without any pretext of misconduct on the part of the employee, the Burnup & Sims test would not be satisfied. Yet that would be a clearer violation of § 8(a)(1) than a situation in which the employer attempts to advance a legitimate reason for the discharge. The other two Supreme Court cases cited by defendant have absolutely nothing to do with labor relations and have no bearing on judicial interpretations of the requirements of the federal labor laws. The Sixth Circuit case cited by defendant, NLRB v. Cleveland Pressed Productions Corporation, 493 F.2d 1250 (6th Cir. 1974), does not stand for the proposition, as defendant contends, that a discharge partially caused by anti-union animus is lawful if based on some other valid reason. Rather, the Sixth Circuit in that case found that an employee's discharge was simply not caused at all by his union activities despite some evidence of anti-union animus by the employer. Finally, defendant relies on the interpretation of the Railway Labor Act in United States v. Winston, 558 F.2d 105 (2d Cir. 1977). However, Winston involved a criminal prosecution of employers for unlawful coercion under the Railway Labor Act. The Second Circuit made it clear that it was applying a different standard to determine "coercion" for purposes of the criminal prosecution than it would in a civil action. Id., at 109. In sum, we reaffirm our use of the Conrad standard in determining whether a discharge or transfer is unlawfully coercive under the Railway Labor Act.
Finally, defendant contends that the injunctive relief granted is unjustified because any violations were isolated incidents and because of the passage of time since the violations occurred without further unlawful activity. Defendant quotes our order of September 10, 1975, denying plaintiff's application for a preliminary injunction, in which we stated that defendant was not "engaged in any conscious concerted attempt" to violate the Railway Labor Act and further stated that defendant did not have "a practice of discharging employees that were union advocates." These statements remain accurate, and are not contradicted by our ultimate decision in this case. The fact that Adams and Lovett were dealt with unlawfully and that defendant committed a number of other violations does not mean that defendant was making a concerted effort to violate the Act or had a consistent practice of getting rid of pro-union employees. Nevertheless, defendant's unlawful activity may well have had the effect of discouraging other employees from exercising their statutory rights. The fact that numerous employees may have been chilled by defendant's conduct requires the injunctive relief set out in our decision. Moreover, defendant cannot rely on the fact that there is no present union organizational drive or that no violations of the Railway Labor Act have occurred since 1975. It could well be that there would have been more interest in union activity if not for defendant's prior unlawful actions.
Defendant continues to urge that cases under the NLRA have little application to the Railway Labor Act. While we agree that the NLRA cases are not controlling, it would make little sense to define coercion of employees under the Railway Labor Act in a substantially different way than under the NLRA.
For the foregoing reasons, we find no merit in any of defendant's contentions. Accordingly, defendant's motion to amend our previous decision is hereby DENIED.
It is so ORDERED.
NOTES
[1] Section 152 (Third) of Title 45 prohibits "interference, influence, or coercion by either party [i. e. carrier or employees] over the designation of representatives." Section 152 (Fourth) provides:
No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . ..
[2] We note that, after this lawsuit was filed, a certification election was held for the class of Mechanics and Related Employees at Federal Express. Following that election, the National Mediation Board found no basis for certifying the Teamsters as bargaining representative. Adams, supra, at 324-325. This fact would not preclude us, however, from enjoining defendant from violating its employees' organizational rights in the future if we determine that past violations have occurred.
[3] In his testimony, Washington said he began work February 29, 1974 and was discharged February 14, 1975. (Tr. 352.) However, defendant's employee records regarding Washington reflect the dates used in the text (Ex. 1), and we choose to follow these.
[4] Portions of the transcript designated by the letter "A" refer to the additional testimony taken at the subsequent hearing in this case on August 23, 1978.
[5] During the 1975 hearings, Lovett was also contending that he was prevented from coming back to work for defendant because of his union activities. Since he did return to work for defendant shortly thereafter, however, we do not believe this remains as an issue in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366711/ | 871 P.2d 79 (1994)
Wanda Jean ALLEN, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-89-549.
Court of Criminal Appeals of Oklahoma.
February 15, 1994.
Rehearing Denied March 30, 1994.
Bob G. Carpenter, Oklahoma City, trial counsel, William H. Luker, Asst. Appellate Public Defender, Norman, appellate counsel, for appellant.
Sandra H. Stensaas, Asst. Dist. Atty., Oklahoma City, Wes Lane, Asst. Dist. Atty., Oklahoma City, trial counsel, Susan Brimer Loving, Atty. Gen. of Oklahoma, David Walling & A. Diane Blalock, Asst. Attys. Gen., *86 Oklahoma City, appellate counsel, for appellee.
*85 OPINION
LUMPKIN, Presiding Judge:
Appellant Wanda Jean Allen was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp. 1982, § 701.7), and Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp. 1983, § 1283), Case No. CRF-88-6621, in the District Court of Oklahoma County. The jury found the existence of two aggravating circumstances and recommended death as punishment for murder and ten (10) years for felonious possession of a firearm. The trial court sentenced accordingly. From this judgment and sentence Appellant's has perfected this appeal. We affirm the judgment and sentence for murder, but reverse and remand for a new trial on the firearm charge.
The charges against Appellant stemmed from the shooting of Gloria Leathers on December 1, 1988, in front of the police department in the Village, Oklahoma. Ms. Leathers and Appellant had been involved in a homosexual relationship, and Ms. Leathers did not wish to continue the relationship. After a dispute over a welfare check between Ms. Leathers and Appellant, Ms. Leathers decided to move out. Accompanied by police, she went to the residence the two shared and gathered some of her belongings. A dispute arose, apparently concerning the ownership of some of the belongings, and Ms. Leathers went to the police station at the suggestion of one of the officers at the house. Appellant followed in a separate car, and outside the station attempted to get Ms. Leathers to reconsider moving out. The shooting occurred during this discussion. Appellant fled and was not captured until December 5, the same day Ms. Leathers died from a single gunshot wound Appellant had fired into her abdomen.
I. PRE-TRIAL ISSUES
A.
In her fifth proposition of error, Appellant asks this Court to reverse because a record was not made during some pre-trial hearings, and some isolated instances during voir dire and trial. Specifically, she complains a record was not made of her district court arraignment; her counsel's motion to withdraw; hearings on the prosecution's motion to submit to tests and provide handwriting exemplars; hearings on her motion for a private investigator at public expense; her motion to suppress; and her motion for preparation of preliminary hearing transcript. She also complains of two lapses during the trial itself: one concerning a discussion of instructions; the other after Appellant testified during the punishment stage. We shall address each separately, but first we examine the rationale for a complete record.
Appellant cites Van White v. State, 752 P.2d 814, 820-22 (Okl.Cr. 1988) and Kelly v. State, 692 P.2d 563, 565-66 (Okl.Cr. 1984) in support of her claim that reversal is mandated when all proceedings in a capital case are not transcribed. In Kelly, Judge Brett wrote a special concurrence in which he submitted it was the responsibility of the State to assure all proceedings were transcribed in a death penalty case. He reasoned this Court could not conduct its mandatory sentence review pursuant to 21 O.S. 1981, § 701.13 without a complete record of all proceedings. The portions missing in that case were all connected with the actual jury trial. Id. at 565-66. In Van White, this Court expanded on the rationale for the requirement. There, this Court reviewed Kelly and held that "in order to effectuate this Court's mandatory sentence review obligation under 21 O.S.Supp. 1985, § 701.13(C)(1), a complete stenographic record shall be taken in all capital proceedings." Van White, 752 P.2d at 821. As in Kelly, Van White concerned itself with failure to transcribe proceedings during the actual jury trial.
Appellant has placed emphasis on the language "in all capital proceedings." While we do not retreat from our holding a complete record should be transcribed in all proceedings in which the death penalty is imposed, we must examine the underlying basis of the rule to see if failure to do so warrants *87 automatic reversal, or whether such a failure can be harmless.
Oklahoma's modern death penalty statutes came into being in response to the Supreme Court's holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that death penalty procedures such as Oklahoma's violated the ban imposed by the Eighth Amendment to the United States Constitution[1] on cruel and unusual punishment. Essentially, the older procedure was constitutionally infirm because there was no way to distinguish cases which warranted the death penalty under the law. In response our Legislature adopted procedures similar to those found to be constitutionally acceptable in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and subsequent cases. Essential portions of the new procedure included a requirement of proof of aggravating circumstances to distinguish those deserving the death penalty from those who did not; and the requirement that this Court conduct a sentence review to determine:
1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and
2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 701.12 of this title.
21 O.S. 1991, § 701.13(C). From this, one can deduce the primary need for a complete record in all death penalty proceedings is to allow an appellate court to determine whether the factfinder imposed the punishment of death as a result of any improper influence, and whether the evidence supports such a finding. In other words, the portion of the mandatory sentence review that concerned this Court in Van White and Kelly dealt with issues at trial, as it is during trial the jury or judge actually makes the determination whether the death sentence should be imposed. Therefore, that is the essential portion of the proceedings this Court requires to determine if the sentence were imposed in violation of the Eighth Amendment. And while this Court is also required to consider "any errors enumerated by way of appeal," 21 O.S. 1991, § 701.13(B), those other errors do not necessarily always implicate the Eighth Amendment or any constitutional provision, for that matter. If alternate means exist for this Court to make a determination without the complete transcription, it will do so, and reversal is not warranted. See Van White, 752 P.2d at 819 (rejecting Appellant's argument that reversal was mandated because a motion hearing was not transcribed, as this Court could make a finding that the trial judge's ruling was supported by competent evidence without the transcript).
Appellant complains here the motion for preparation of a preliminary hearing transcript was not transcribed. While refusal to make a transcript available to an indigent defendant can be a violation of the defendant's right to Equal Protection under the Fourteenth Amendment, no such error occurred here, as Appellant received a copy of the transcript. Therefore, this Court does not need a transcription of the motion to determine a constitutional violation did not take place; and failure to transcribe the hearing is harmless error. 20 O.S. 1991, § 3001.1.
Likewise, this Court can determine from the record Appellant appeared at arraignment, received a true copy of the information and the list of witnesses to be used at trial, waived reading of the information and pled not guilty, was denied bond and was given deadlines to file necessary motions. That is essentially all that transpires at arraignment, see 22 O.S. 1981, §§ 451-470, and Appellant has presented no allegations in her propositions of error anything improper occurred at that time.
Concerning the motions for blood sample and handwriting exemplar, this Court has held such samples can be given without violating any constitutional rights of the Appellant so long as she is afforded notice and an opportunity to be heard. State v. Thomason, *88 538 P.2d 1080, 1087 (Okl.Cr. 1975); Elix v. State, 743 P.2d 669, 673 (Okl.Cr. 1987). Here, the record reflects both were honored. In fact, the record shows Appellant agreed to provide blood samples.
We find no indication in the record Appellant's motion to suppress was argued or decided. However, we have examined both the motion and the entire record, and find nothing seized in violation of the Appellant's Fourth Amendment rights which was used against her at trial, and find her statement to police was not given in violation of her Fifth Amendment rights. We therefore determine any error in failing to transcribe the hearing was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Appellant also argues error in failing to transcribe hearings dealing with her motion for a state-appointed investigator and her attorney's motion to withdraw as counsel. We will address this argument as a part of propositions six and seven.
Appellant lists two instances where an off-the-record discussion was held during trial. One of those dealt with discussion of jury instructions, and the court afforded both sides an opportunity to make a record of that discussion. The record reflects the discussion was held out of the hearing of the jury. Neither side had objection; therefore, no reversible error occurred by the court's failure to make a record of the discussions, as there was nothing contested concerning the instructions for this Court to review. The other instance occurred after Appellant had testified, and the parties discussed a stipulation. Following the off-the-record discussion, the parties further discussed the stipulation. It is obvious to this Court the off-the-record discussion dealt with the stipulation, and in any case was outside the hearing of the jury; therefore, there can be no argument the discussion unduly influenced them in any way, thus precluding any Eighth Amendment violation.
Appellant lists two instances of off-the-record discussions during voir dire. While these omissions require more analysis, we do not find these isolated instances rise to the level requiring reversal. The first one occurred during the voir dire of prospective juror Scott. The court informed him of the charges when the following exchange took place:
THE COURT: The law
MR. SCOTT: Can I take a break a minute?
THE COURT: Oh, sure.
MR. SCOTT: I am
THE COURT: Getting a little queasy?
MR. SCOTT: I have a little blood sugar problem and it's been a while since I ate.
MR. SCOTT: No. I'm okay. I need
(Whereupon, an off-the-record discussion was had, after which the following proceedings were had in-camera:)
THE COURT: All right. You understand though that I mean I don't want you to seriously honestly I want you to tell us if you need to take a break. Okay?
MR. SCOTT: Okay.
THE COURT: `Cause that would be something I wouldn't want to deal with. All right. Mr. Scott, as I mentioned the Defendant is charged with murder in the first degree ... . [the court here informed the prospective juror of the nature of the charges against Appellant]
MR. SCOTT: Bless you. What am I supposed to do? Eat in front of you?
THE COURT: Yes, you are.
MR. SCOTT: Okay.
THE COURT: All right, my question I'm going did I get him with a mouth full of peanut butter here?
MR. SCOTT: I'll time you.
THE COURT: Okay.
... .
THE COURT: My question is in all seriousness, if you're selected as a juror in this case and if you find beyond a reasonable doubt that the Defendant is guilty of murder in the first degree and I ask you given all the facts and circumstances that you'll know at that time in the case and the instructions you have from me, can you consider all three legal punishment options, *89 life, life without parole, and the death penalty?
MR. SCOTT: Yes.
From the surrounding discussion, it is obvious to this Court the off-the-record discussion dealt with the prospective juror's health problems and the acquisition of some food so he would not faint during voir dire. Once that was resolved, the court continued its questioning on the record.
The second off-the-record discussion occurred after the jury was sworn and before alternates were chosen:
THE COURT: ... . If counsel would approach the bench for a minute?
(Whereupon, an off-the-record discussion was had; after-which [sic] the following proceedings were had in open court:)
THE COURT: Ms. Joiner, would you approach please? Would you come up?
MS. JOINER: Me?
THE COURT: Yes, ma'am. If you come right down in front, Ms. Joiner. I've advised the counsel what you told me about your husband being very ill and we all agreed to release you at this point.
MS. JOINER: Thank you.
THE COURT: Thank you.
Likewise, from the proceedings surrounding the off-the-record discussion, it is obvious the discussion centered around and illness in a prospective juror's family, and had nothing to do with whether a prospective juror could decide to give Appellant the death penalty. There was no Eighth Amendment violation, and the procedural error was harmless. 20 O.S. 1991, § 3001.1.
There is no merit to this proposition.
B.
In her sixth assignment of error, Appellant argues the court erred in denying her a private investigator at public expense. Appellant's motion filed with the trial court did not give specific reasons why an investigator was necessary. The hearing on the motion was not transcribed, but Appellant has filed an affidavit of trial counsel, which, in connection with the evidence presented at trial, assists us in making the proper determination.[2] In the affidavit, trial counsel said he needed the investigator to more fully investigate Appellant's defense of self-defense and the lesser charge of manslaughter. Based on the evidence presented at trial, including that by Appellant, we have concluded these theories had no merit, see III.A., infra; and in light of the overwhelming evidence of guilt of murder, we conclude Appellant failed to establish prejudice "by clear and convincing evidence" in the court's refusal to appoint an investigator. Munson v. State. 758 P.2d 324, 330 (Okl.Cr. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989) (citing Mason v. Arizona, 504 F.2d 1345, 1352 (9th Cir.1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975).[3]
We see no merit to this proposition.
II. ISSUES RELATING TO JURY SELECTION
A.
In her tenth proposition of error, Appellant alleges the prosecution improperly exercised a peremptory challenge of a black juror in violation of Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d *90 69 (1986). Appellant is also African-American.
Batson holds that once a prima facie case of discriminatory selection is established, the prosecution can rebut the appellant's case by giving a racially neutral explanation for the peremptory challenge. Id. at 98, 106 S.Ct. at 1724. It also observes this explanation need not rise to the level justifying excusal for cause, Id., 476 U.S. at 97-98, 106 S.Ct. at 1723-1724; and the findings of the trial court are entitled to great deference. Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Here, the prosecution offered as reasons for excusing the black venire person the fact she made a facial expression by raising her eyebrows when she said she could consider the death penalty; that she had been hesitant when asked about the death penalty; that she avoided making eye contact with the prosecutors, but not with defense attorneys; and she dozed off during the prosecutor's general voir dire. We believe these reasons are sufficiently neutral to pass constitutional muster. See Boltz v. State, 806 P.2d 1117, 1123 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991); Smith v. State 737 P.2d 1206, 1216 (Okl.Cr. 1987), cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987) (hesitancy about death penalty); United States v. Power, 881 F.2d 733, 739-40 (9th Cir.1989) (fidgeting caused concern juror might not be attentive during trial); United States v. Ruiz, 894 F.2d 501, 506 (2d Cir.1990) (facial expressions indicating possible reluctance of juror to sit in trial deemed sufficient reason).
We find no merit in this proposition.
B.
Appellant argues in her twelfth proposition of error the court erred in preventing counsel from inquiring into prospective jurors' views on life without parole. We disagree. In the instances Appellant has cited, the record clearly indicates defense counsel had the opportunity to pose appropriate questions to each juror concerning the punishment options to be considered.[4]
Nor is there merit to Appellant's complaint the trial court refused to allow counsel to inquire as to lesser included offenses. The purpose of voir dire is to ascertain whether there are grounds to challenge prospective jurors for bias and to permit the intelligent exercise of peremptory challenges. Palmer v. State, 532 P.2d 85, 88 (Okl.Cr. 1975). Here, although counsel did not ask his specific question, every juror who was asked indicated he or she could follow the applicable law given to them by the trial court. This indicates to us each juror indicated he or she could consider a lesser included instruction. We find no abuse of discretion in the court's refusal to allow counsel's question about lesser included offenses. Sellers v. State, 809 P.2d 676, 682 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991); Banks v. State, 701 P.2d 418, 423 (Okl.Cr. 1985).
C.
Appellant also contends the trial court improperly excused prospective jurors who said they could follow the court's instructions despite having reservations about the death penalty. In this thirteenth proposition of error, Appellant alleges the court improperly excused prospective jurors Webb and Alexander.
This Court has held that
not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.
*91 Battenfield v. State, 816 P.2d 555, 559 (Okl. Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992) (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137 (1986)) (emphasis added).
Here, prospective juror Webb gave contradictory answers, appearing indecisive in response to questioning by the court; then agreeing with the prosecutor, then defense counsel. She had reservations about the death penalty, but did not clearly indicate she could set those reservations aside and follow the law. The following exchange at the end of her questioning is typical:
THE COURT: ... if you were a member of the jury could [you] in fact select the death penalty as the appropriate punishment if that were what the law provided and that's what the evidence showed?
MS. WEBB: If that was what the law provided.
THE COURT: Yes, ma'am. And if that's what the evidence showed. Now, understand, Ms. Webb, I'm not going to tell you that the law is going to tell you which of the three options you should choose. You know, the law is going to give you some parameters, some guidelines, for you to use, but when it comes right down to it should there be a finding of guilt the jury will have those three options in front of it, you know.
They won't I won't tell you which one is appropriate. You know you would still have to make that decision and in order to be fair to both sides you have to be able to tell me that you will in fact consider all of those options and the evidence presented on all three before making your decision and you would not rule out one or two of any of the particular punishment options? Could you do that?
MS. WEBB: No.
(voir dire Tr. 51). In situations when a juror's answers are unclear and contradictory, this Court traditionally defers to the impressions of the trial judge, who "may have a definite impression that the prospective juror would be unable to fulfill his or her oath." Duvall v. State, 825 P.2d 621, 631 (Okl.Cr. 1991); Battenfield, 816 P.2d at 559.
The same is true of prospective juror Alexander, who despite repeated questioning indicated both a confusion as to the procedure to be used and reluctance to consider the death penalty as a viable option:
THE COURT: Could you consider the death penalty as a viable option as something if you thought the circumstances warranted it? You could in fact impose it?
MS. ALEXANDER: No, I don't really think I could, not really. I don't think I have it in me.
THE COURT: Okay. Well I appreciate it and I'm not certainly not fussing with you at all, but you understand you kind of have given both answers and I think it's in an effort to really truly tell us how you feel.
MS. ALEXANDER: Yes.
THE COURT: But I appreciate that. But earlier my question was if you're sworn in as a juror in this you're taking an oath to follow the instructions
MS. ALEXANDER: Yes.
THE COURT: that I give you and again my instruction is that we get to that point of punishment and there's been a finding of guilty of murder in the first degree then my instruction would be that you are to consider all the evidence and determine after consideration each of the three punishments which punishment is most appropriate. Do I hear you say that if you considered the death penalty and even if you thought it was the most appropriate punishment that you would not be able to vote that way?
MS. ALEXANDER: That's right. That's exactly what I don't think I could.
(voir dire Tr. 759-60). Again, the juror clearly indicated she could not put aside her personal feelings and impose the death penalty in a proper circumstance. After considering the entire record surrounding the prospective jurors' exclusion, and giving appropriate deference to the trial judge, we hold the responses "sufficiently demonstrated that [the jurors] beliefs about capital punishment would `substantially impair [their] ability to serve as a juror.'" Battenfield, 816 P.2d at *92 559 (quoting Coleman v. Brown, 802 F.2d 1227, 1232 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987)).
III. ISSUES RELATING TO TRIAL
A.1
In his first proposition of error, Appellant claims the trial court erred in refusing testimony in support of her defense of self-defense. Appellant testified she was fearful of the decedent because decedent had said she killed a woman in Tulsa ten years earlier. She sought for purposes of corroboration to introduce testimony by the decedent's mother, Ruby Wilson, that the decedent had told Ms. Wilson the same story. The trial court ruled the evidence inadmissible hearsay. The State on appeal acknowledges the evidence was not offered to prove the truth of the matter asserted, see 12 O.S. 1981, § 2801(3), but responds the alleged Tulsa homicide was too remote to be of significant value in her self-defense claim. In making their arguments, both sides assume Appellant had a valid defense of self-defense. We disagree, and therefore hold it was not error to exclude the proffered testimony.
For the sake of argument and for purposes of analysis only,[5] we shall use only Appellant's version of events to illustrate why here theory of self-defense was not warranted.
Appellant testified that after a dispute at a supermarket over possession of a welfare check, the decedent, accompanied by her mother and police officers, returned to the house and gathered some of her possessions. Appellant asked the decedent to stay and attempt to work out their difficulties. When Appellant followed the decedent to her car, decedent grabbed a small, hand-held, multiple-pronged gardening tool, identified at trial as a garden rake, and struck Appellant in the face with it, causing extensive bleeding beneath Appellant's eye. Appellant retreated into the house to minister to her wounds; the decedent got into the car and left.
Appellant testified she cleaned the blood off her face with a small towel; then drove to the police station where she knew the decedent was going. Despite the time involved in going into the house at the same time the decedent left, then wiping her face, she told the jury she followed approximately two car lengths behind the decedent. The vehicle in which the decedent was riding was parked in a drive area of the police department, off of the street. Appellant parked in the street, behind the decedent's vehicle but not blocking it. Appellant got out of her car and reached the rear of the decedent's vehicle when she noticed the decedent approaching her, holding the garden rake. At that point, Appellant said she retreated back to her vehicle, opened the passenger door, and retrieved a pistol she kept in the glove compartment. She turned around to see the decedent very near her. She claimed she accidentally shot the decedent during an ensuing scuffle.
There are several flaws in Appellant's self-defense theory. It has long been Oklahoma law that, even if a person is an aggressor, he can lose that status by clearly withdrawing from the fight. He can evince that desire to withdraw by either word or act, so long as his intentions are clear. Evans v. State, 89 Okl.Cr. 218, 206 P.2d 247, 252 (1949). It is also true if a party who was the attacker withdraws and the other party pursues more than is necessary to ensure her safety, the pursuing party can take on the status of attacker, and lose the right of self-defense. Peterson v. State, 86 Okl.Cr. 302, 192 P.2d 286, 288 (1948); Smith v. State, 19 Okl.Cr. 14, 197 P. 514, 516 (1921); Gransden v. State. 12 Okl.Cr. 417, 158 P. 157, 161 (1916); see also State v. Heath, 237 Mo. 255, 141 S.W. 26, 30 (1911). Here, the decedent, by getting in the vehicle with her mother, leaving the house, and going to the police station, clearly indicated a desire to withdraw; and Appellant, who had gone in her own house, was out of danger. When she followed the decedent, she arguably became *93 the pursuer, an observation that is strengthened by subsequent actions.
It is also true a person does not have to be an aggressor or provoke a fight with the intent of killing the other party to be deprived of the right to self-defense. If a person by provocative behavior initiates a confrontation, even with no intention of killing the other person, she loses the right of self-defense. Ruth v. State, 581 P.2d 919, 921-22 (Okl.Cr. 1978). Here, even assuming Appellant did not intend to provoke an argument when she pursued the decedent to the police station, she re-initiated the encounter by her actions. She knew the decedent was upset, yet she pursued her anyway, knowing the possibility of a confrontation was strong.[6]
More to the point, based on Appellant's testimony, when she walked behind the decedent's vehicle, saw the decedent approach with the same gardening tool, then withdrew to her own car to retrieve the weapon, she lost the right of self-defense. It is true a party has no obligation to retreat from a confrontation; she can stand her ground and defend herself. Perez v. State, 51 Okl.Cr. 180, 300 P. 428, 429 (1931). Nonetheless, there must be a distinction between retreating to avoid a confrontation and withdrawing a short distance to obtain a tactical advantage here, the acquisition of a deadly weapon. See State v. Health, 237 Mo. 255, 141 S.W. 26, 30 (1911); Jackson v. State, 2 Ala.App. 55, 56 So. 96, 98 (1911). Appellant was able to reach her vehicle; yet when she did, she grabbed a weapon, turned and confronted her attacker instead of escaping. While we do not overrule our earlier holdings that a party has no duty to retreat from a confrontation, we believe the possibility of escape should be a recognized factor in determining whether deadly force was necessary to avoid death or great bodily harm. See State v. Freeman, 447 So.2d 1145 (La. Ct. App. 1984), writ denied, 449 So.2d 1356 (La. 1984).
It is true instructions on self-defense should be given if there is evidence to support it. However, if there is no evidence to support self-defense, the trial court is under no obligation to give the instructions. Ridinger v. State, 97 Okl.Cr. 377, 267 P.2d 175, 183 (1954). Here, even limiting review to Appellant's version of events, we find the Appellant was not entitled to instructions on self-defense. While we commend the district court for erring on the side of caution, we nonetheless find error here in allowing instructions on self-defense; an error that benefitted Appellant. Consequently, evidence in support of that theory was not error.
A.2
Nor is there merit to Appellant's argument the evidence should have been admitted to support her heat-of-passion manslaughter theory. While we have set forth Appellant's version of events, other testimony strongly conflicted with Appellant's version of events. The decedent's mother, who was with the decedent and driving the vehicle, testified the decedent did not at any time attack Appellant with a garden tool. An officer at the residence during the first encounter, fearing the tool would be used in a fight, had picked up the hand rake and concealed it under some clothing in a basket in the rear seat of decedent's car. He noticed the rake was in the same position when he examined the basket after the shooting. The same officer saw the decedent's car pull away from the residence immediately after he did; and there had been no assault while he was there. A second officer testified he drove back around to the residence approximately one minute after he had left and saw neither the decedent's nor Appellant's cars. Despite Appellant's claim of copious amounts of blood from the wound, an examination of her vehicle revealed no blood; and a search of her residence the night of the shooting revealed no bloody towels. While Appellant did have a small wound underneath her eye when she was captured four days after the shooting, the one person who saw Appellant immediately *94 after the shooting when Appellant gave her the gun she had used looked at Appellant's face and saw no injury or evidence of blood.
Even though the hearsay statement of the decedent's mother was not admissible, Appellant herself took the stand and explained to the jury she feared the decedent because the decedent told her she had killed someone, thereby getting the desired information in front of the jury. See Boltz v. State, 806 P.2d 1117, 1123 (Okl.Cr. 1991); see also 12 O.S. 1981, § 2404(A)(2). The trial court's refusal to admit the hearsay testimony of the decedent's mother was not error.
This assignment of error is without merit.
B.
In light of our finding that instructions on self-defense were not warranted, Appellant's eighth proposition of error concerning error in the court's failure to give an additional self-defense instruction is also without merit.
C.
Appellant contends in her ninth proposition of error the court erred in not sua sponte instructing on second-degree murder and second-degree manslaughter, even though she did not request either instruction. Appellant testified she retreated to her vehicle, grabbed her gun, and turned around to confront the decedent. She testified she was frightened at the time. Under these facts, an instruction on second-degree manslaughter is not warranted. This finding is reinforced since Appellant re-entered the confrontation with a pistol. See Young v. State, 84 Okl.Cr. 71, 179 P.2d 173, 175 (1947). Additionally, even if Appellant was afraid and did not intend to injure the deceased, this evidence clearly does not fit the statutory requirement of second degree murder that the accused show conduct evincing a depraved mind in extreme disregard of human life. Cf. Smith v. State, 674 P.2d 569, 571 (Okl.Cr. 1984) (act of swerving car toward children showed evidence of depraved mind, even though appellant claimed he did not intend to injure anyone by his actions; the deliberate manner in which the car was driven contained the appropriate mens rea); and President v. State, 602 P.2d 222, 225-26 (Okl. Cr. 1979) (conviction modified from second degree murder to manslaughter based on evidence that appellant killed his lover after she told him she had sex with another man; conduct under the circumstances evinced more a heat of passion than a depraved mind). As noted above, to assume Appellant's version is the accurate version is to ignore other evidence produced at trial. The evidence does not support the giving of either instruction as a lesser included offense.
This proposition is without merit.
D.
In her second proposition of error, Appellant claims the court erred in allowing her videotaped confession without an accompanying diagram. On the videotape, Appellant drew something on a piece of paper in an effort to show officers where she had parked her vehicle when she arrived at the police station. The rough diagram was not preserved.
We see no reversible error. A complete viewing of the videotape indicates that at a point before Appellant drew her rough diagram, she used her hands and the table at which she was sitting to indicate relative positions of the vehicles. This, combined with her testimony at trial during which she contradicted the diagram drawn by police officers and demonstrated to the jury where she recalled the vehicles being parked, allowed her to communicate to the jury her version of where things were located and what transpired. In this way, the jury did in fact receive all the facts and circumstances surrounding the confession, see Williams v. State, 542 P.2d 554, 573-74 (Okl.Cr. 1975), modified on other grounds, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976), and any error in admitting the videotape without the diagram was harmless beyond a reasonable doubt. This proposition is without merit.
E.
In another videotape-related complaint, Appellant complains on appeal the trial court acted improperly on a request of *95 the jury after deliberations started. The jury sent the court a note stating it wished to review the tape. During an ensuing in-camera discussion, Appellant's trial counsel objected to the trial court's questioning the jurors to determine which specific portion the jury wished to hear. Consequently, the trial court sent the jurors a note telling them to decide whether they wished to review the entire tape. The jury indicated its desire to review the entire tape, and it was replayed for them in open court.
Appellant now complains the court erred in not ascertaining what specific problems the jurors were having in connection with the tape, citing Martin v. State, 747 P.2d 316, 320 (Okl.Cr. 1987). This Court's primary concern in Martin was the jury's unrestricted use of videotaped testimony of a seven-year-old sexual abuse victim in the jury room. Martin contains language that a trial court which has received a request to review evidence should ascertain the precise nature of the jury's difficulty, isolate the requested testimony that can solve it, then weigh the probative value of the testimony against the danger of undue emphasis. Id. However, we observe here the court responded in accordance with trial counsel's wishes on the subject. Therefore, any error that occurred was invited by defense counsel, and Appellant cannot profit from those actions on appeal. Thomas v. State, 744 P.2d 974, 976 (Okl.Cr. 1987); Cooper v. State, 671 P.2d 1168, 1172 (Okl.Cr. 1983). We further note the tape being played was not testimony of a witness at trial, but rather was a conversation between Appellant and police. See Duvall v. State, 780 P.2d 1178, 1180 (Okl.Cr. 1989). Nor do we see error in the prosecution's turning up the volume on the tape at one point. The record indicates the prosecutor turned up the volume in response to a signal by a juror, who indicated she was having difficulty hearing the tape. We do not agree with Appellant this act emphasized any particular portion of the tape. Appellant has failed to show how this act at the request of the juror was prejudicial. This proposition is without merit.
F.
In her fourteenth proposition of error, Appellant complains the trial court erred in allowing in evidence Appellant was the "man" in her homosexual relationship with the decedent. The evidence came in the form of lay opinion testimony from the decedent's mother, based on her observations of the two. It was used to show Appellant was the aggressive person in the relationship, while the decedent was more passive.
We do not believe the court erred in allowing in the evidence. As we stated in Green v. State, 713 P.2d 1032 (Okl.Cr. 1985), cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 165 (1986), section 2701 of the evidence code has "substantially liberalized the admission requirements" for introduction of lay witness opinion. Now, such opinions "should be rejected only when they are not rationally based on the perception of the witness, or the opinion is superfluous in the sense it would be of no value to the trier of fact." Id. at 1039 (emphasis in original). If such evidence can be helpful to the jury, it is within the discretion of the trial judge to admit it. Id.
Here, the witness was able to make observations of conduct by her daughter and Appellant, even though she may not have spent a great amount of time around the household. The evidence would help the jury understand why each party acted the way she did both during events leading up to the shooting and the shooting itself. The very reason for the shooting was the decedent's leaving Appellant and intention to terminate the relationship. Under these circumstances, its probative value was not substantially outweighed by its prejudicial effect, see 12 O.S. 1981, § 2403, and the evidence was properly admitted.
IV. ISSUES RELATING TO PROSECUTORIAL MISCONDUCT
In her fourth complaint, Appellant claims several instances of prosecutorial misconduct. She first complains the State improperly portrayed the decedent as a gentle, weak individual, while refusing to allow Appellant *96 to show the decedent's other side that of a hardened, violent criminal. She again bases her complaint on her self-defense theory. As we held that theory to be invalid in this case, see supra, that portion of her complaint is without merit.
Additionally, we note that virtually none of the remarks of which she now complains drew an objection at trial, and are therefore waived on appeal. Clayton v. State, 840 P.2d 18, 29 (Okl.Cr. 1992). While we find somewhat disturbing the prosecutor's conduct in first objecting to the introduction of evidence by the decedent's mother concerning the decedent's killing of a woman years earlier, then commenting during closing the only evidence of the decedent's violent behavior came from Appellant, we see no fundamental error. Error in refusing to admit evidence when that evidence should have been admitted is an error committed by the court, not of the prosecutor, and will not be reversed absent a miscarriage of justice or a substantial violation of a constitutional or statutory right. 20 O.S. 1991, § 3001.1. The prosecutor has a right to comment on evidence that has been allowed before the jury, and we find the comments concerning Appellant's behavior and the decedent's behavior fall within the range of fair comment allowed both prosecutors and defense attorneys. Romano v. State, 847 P.2d 368, 380 (Okl.Cr. 1993); Clayton, 840 P.2d at 29. We find no Due Process violation present in these actions in light of the fact we found her self-defense theory to be invalid.
We also disagree the prosecutor misstated evidence by commenting the path of the bullet made Appellant's version of the incident "impossible." While "impossible" might have been too strong a word, the jury had heard evidence from the medical examiner making her version unlikely. No fundamental error occurred in the light of the overwhelming evidence presented against Appellant. There is no error in commenting that none of Appellant's blood was found in her vehicle. Although the interior of her car was a maroon color, the criminalist who processed the car said the blood would have been a darker color than the interior, and would have been visible had it been present. The prosecutor's statement was a fair comment on the evidence. Clayton, 840 P.2d at 29. Likewise supported by some evidence although not Appellant's version of it was the prosecutor's comment during the second stage Appellant had chased down an unarmed friend, Detra Pettus, seven and one-half years earlier and shot her in the same manner she did the decedent. The jury heard evidence in the second stage Pettus died from a contact wound to the abdomen, which would not have been possible from the distance Appellant said she fired the shot; and that Pettus had contusions on the back of her skull, consistent with being pistol whipped.
In addition, there is no merit to Appellant's contention the prosecutor misstated the law. She first points to an isolated instance where the prosecutor told the jury "... you do not kill Wanda Jean Allen. All you do is return a death verdict. You don't kill her and I don't kill her. All you can do is return a death verdict. That's all you do." The Appellant cites Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) in support of his argument that the prosecutor attempted to convince the jury the responsibility for determining the death sentence rested somewhere other than on their shoulders. To establish a Caldwell violation, "a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989).
The remark, when taken in context, does not improperly describe the jury's role. In the same closing argument, the prosecutor also said "it's difficult for myself and for Mr. Lane to get up here and talk to you and ask you to sentence this Defendant to death. It's very difficult. Just like it's going to be difficult for you 12 people to go back there and render a verdict that is justice in this case... . We told you during voir dire that your job here would not be easy nor would it be one that you appreciated or that you would enjoy doing, ..." Following the complained-of remark, the prosecutor observed Appellant placed herself in her predicament *97 and put the jurors in the position they found themselves at that time. The prosecutor reminded the jurors they had been told during voir dire their job would not be easy or fun, adding that jurors during their deliberations occasionally "cuss at each other, they scream, they yell. We hear people throwing things at each other, and sometimes all you sometimes the jurors all they do is bow their heads and pray," indicating their job is an agonizing one. Based on the argument in its entirely, we do not believe the prosecutor was attempting to diminish the jury's role by telling them the responsibility for Appellant's fate rested elsewhere.
Nor is there merit to the allegation the prosecutor attempted to define reasonable doubt by saying the prosecution's burden need not be beyond all doubt or a shadow of a doubt. This Court rejected a proposition of error based on nearly identical language in Vaughn v. State 697 P.2d 963, 967 (Okl.Cr. 1985). We reject it again.
Appellant complains the prosecutor improperly criticized her during closing argument, making references to her status as the dominant person in a homosexual relationship. We find no error. The relationship was critical to the jury's understanding of the facts surrounding the shooting and was a proper factor for the jury to consider. See 21 O.S. 1981, § 695 (jury can take into consideration the existence of a domestic relationship in determining the grade or punishment of a homicide). We have examined other complained-of comments that she had been crying during trial in an effort to show remorse, contrasting that behavior with evidence showing a lack of remorse; observing she had changed her story one hundred and fifty times; and making an oblique reference to a cold-blooded murderer and do not feel the ones which may be improper influenced the jury in its determination of guilt.
In the second stage, the prosecutor made other comments which Appellant takes as criticism. Those include telling a story involving a snake to illustrate that a person's nature doesn't change. The story told was more in the line of a fable, and the prosecutor immediately added he was not comparing Appellant to a snake. Appellant also complains of error when the prosecutor pointed to a postcard Appellant had sent the decedent. The front of the card depicted a gorilla with the caption, "Patience My Ass I'm Gonna Kill Something"; the back contained a threat: "Try and leave you'll understand this card MORE `dig' For REAL NO JOKE LOVE GENE." The prosecutor said "that's Wanda Jean Allen in a nutshell." Appellant's attorney objected to the comment, saying the prosecutor implied Appellant was an ape. The trial court overruled the objection, observing she did not take it that way. In light of the entire comment, neither do we.
Appellant also complains the prosecutor elicited sympathy for the decedent, making references to a fair trial or treatment for her. Lack of an objection aside, this Court has in the past held that similar comments did not warrant relief by this Court. Castro v. State, 745 P.2d 394, 402 (Okl.Cr. 1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988) (asking the jury if the victim had any constitutional guarantees). See also Shelton v. State, 583 P.2d 1107, 1111 (Okl.Cr. 1978).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
In her seventh proposition of error, Appellant states she was denied effective assistance of counsel for several reasons. We shall address them in the order she has presented them.
She first asserts counsel was ineffective because he was not paid adequately. Trial counsel's affidavit states he had reached an agreement with Appellant and her family to provide representation for a certain fee, payable by arraignment. Counsel based his fee on the assumption he would be able to reach a plea arrangement with the prosecution. By arraignment, however, Appellant's family had paid him only $800, less than one-fifth the agreed-upon fee. Additionally, the affidavit states that after the fee agreement and before arraignment, counsel learned the prosecution would seek the death penalty against his client. Counsel was never paid more than $800 for his representation. *98 His motion to withdraw was overruled by the trial court, who reportedly told him he should consider representation of Appellant as part of his ethical obligation to perform pro bono service.
The State responds Appellant has failed to show prejudice because her attorney was not fully paid, as she has cited no specific instances other than lack of an investigator where her lack of funds to pay counsel manifested itself in counsel's performance.[7] Appellant responds the lack of payment created a conflict of interest; as a result, prejudice must be presumed. We disagree.
We fear Appellant is confusing the hardship and possible due process violation against her attorney, see State v. Lynch, 796 P.2d 1150 (Okla. 1990) with a conflict on her part. A due process violation on one person does not necessarily translate into a constitutional violation against another. We do not disagree with Appellant that the better course might have been to allow counsel to withdraw, or at least have counsel from the public defender's office appointed as lead counsel. And while her attorney undoubtedly experienced hardship as a result of her failure to pay him, and such hardship can be a reason for an attorney's refusing an appointment, or withdrawing from an arrangement he has already made, see 5 O.S.Supp. 1988, Ch. 1, App. 3-A, Rules 1.16(b)(2) and (3), and 6.2(b); it is also true an attorney should render pro bono service whenever possible. See 5 O.S.Supp. 1988, Ch. 1, App. 3-A, Rule 6.1(a).
In his affidavit, counsel notes the financial hardship imposed upon him, but does not state a conflict existed as a result of that financial hardship. Appellant has presented us with no authority from any jurisdiction[8] holding that inability of a client to pay automatically creates a conflict of interest between the attorney and his client; and we simply refuse to assume an attorney in good standing in this state who has voluntarily undertaken an obligation to represent a client would fail to render the utmost service to that client based solely on a subsequent inability of the client to pay. This is especially true when the record does not support the allegation. Consequently, we find no conflict of interest.
Therefore, we will address whether Appellant was denied effective assistance of counsel based not only on whether counsel's performance was deficient, but also whether any deficient performance prejudiced Appellant. Williamson v. State, 812 P.2d 384, 411 (Okl. Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In addressing an ineffective assistance claim, this Court must indulge a strong presumption counsel's conduct falls within a wide range of professional assistance. Williamson, 812 P.2d at 411. The burden rests with Appellant to show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. With these principles in mind, we shall address the specific instances set forth in Appellant's brief.
Appellant first complains her attorney did not interview people who had investigated the death of a woman the decedent had supposedly killed in Tulsa a decade earlier. Appellant claims the investigation would have turned up evidence she could use in her defense of self-defense. As we have determined the theory of self-defense was not a valid defense, based on Appellant's own testimony, Appellant cannot show harm in failing *99 to investigate evidence in support of that theory.
Appellant also claims counsel was incompetent because he did not investigate her life history to discover readily available mitigating evidence. Essentially, Appellant claims that evidence would have shown she had a troubled, delinquent childhood; a low intelligence quotient; and was struck in the head when she was twelve years old, raising the possibility of brain damage.
Appellant claims trial counsel could have uncovered all this evidence. We agree, as all this information would have been known by Appellant. Appellant has not presented this Court with sufficient reason why she did not inform her attorney at that time of these facts she now claims were essential to her defense. In other words, counsel could have obtained the information from Appellant, who did not see fit to apprise him of it before or during trial. We agree with a federal court's assessment that "[t]rial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts when those facts are within the client's possession; clairvoyance is not required of effective trial counsel." Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir.1987).
Additionally, we have examined the exhibits Appellant has presented in support of this section, and agree with the State several of the exhibits would have been more harmful than helpful. Appellant's mother testified Appellant did well in school. This contrasts with information in the exhibits Appellant had an IQ of 69, the upper limit of mental retardation. It also contrasts with information Appellant was expelled from school because she fought constantly and always carried a knife. The information also showed Appellant had assaulted other people, including a relative and a foster parent. In light of this information, Appellant cannot show prejudice because her counsel failed to independently find this information. Williamson, 812 P.2d at 411.
In light of these findings, we find no merit to this claim, nor to the request we resubmit the case to the district court for an evidentiary hearing.
VI. ISSUES RELATING TO PUNISHMENT
A.
In her third proposition of error, Appellant claims the court improperly allowed hearsay evidence in the form of Det. Steve Pacheco of the Oklahoma City Police Department, who testified about the 1981 killing of Detra Pettus. That killing formed the basis of the aggravating circumstances found against her. Pacheco gave several details of the Pettus homicide.
We initially disagree with Appellant's statement the detective did not establish where he obtained the information to which he testified. The detective plainly testified he was involved in the Pettus homicide investigation, and in fact took Appellant's statement following that homicide. Appellant's trial counsel objected on similar grounds, but withdrew the objection when this fact was pointed out to him, a fact Appellant admits in her reply brief. She has therefore waived all but fundamental error. Further, there is a presumption of regularity in the trial court proceedings, Huntley v. State, 750 P.2d 1134, 1136 (Okl.Cr. 1988); Tuggle v. Page, 427 P.2d 439, 441 (Okl.Cr. 1967), and Appellant has failed to provide any evidence to rebut the presumption, providing only the barest speculation the detective did not have personal knowledge of the events to which he testified. However, the record proves the speculation is without merit.
Certain items were not covered in Appellant's statement: the fact Appellant and Pettus took a trip to Arkansas together the year before; that Pettus was not armed; and that no gun was found in a dumpster where Appellant said she had placed it. Assuming these are not statements Appellant made to the detective at the time of the investigation, we do not view their admission as fundamental error. In her 1981 statement made after the Pettus homicide, Appellant said she was at the motel to talk to her friends, and mentioned Pettus' boyfriend, Russell Hodges, in the same sentence. In *100 that vein, the statement Appellant and Pettus took a trip to Arkansas together was not offered to prove they in fact made the trip, but that they were friends. It was therefore not hearsay. 12 O.S. 1981, § 2801(3).
Likewise, the detective's statement no gun was found in the dumpster was not offered to prove no gun was found. In her 1981 statement she told the detective she had placed the gun in the dumpster, just as she did in making her 1988 statement. This was offered to prove she gave the same story to authorities in 1981 as she did in 1988. Whether a gun was found is of no real consequence. In her statement, Appellant stated Hodges shot at her, and when Appellant fired at him, Pettus fell. We think a reasonable person reading the 1981 statement would draw the inference Pettus did not have a pistol; however, even if this were to be considered hearsay, we do not feel its admission prejudiced Appellant. Whether Pettus was armed or not, she did not fire at Appellant; and Appellant saw her fall to the ground after she fired at Hodges.
On a broader scale, we believe the complained-of testimony is not hearsay for another reason. The testimony was not offered to prove Pettus was unarmed, a friend of Appellant's, or that a gun was not found in a dumpster. See 12 O.S. 1981, § 2801(3). The evidence was offered to show similarities between Appellant's actions in killing Pettus and her actions in killing the decedent in this case. Appellant told each interrogator she threw the pistol in a dumpster; each victim was killed with a .38 caliber weapon; Appellant knew each victim, whether close friends or not; and both killings arose out of an argument. Any error that arose out of the complained-of remarks was harmless beyond a reasonable doubt. Byrd v. State, 657 P.2d 183, 187 (Okl.Cr. 1983).
B.
Appellant complains in her fifteenth proposition the trial court erred in failing to follow the procedure established in Brewer v. State, 650 P.2d 54, 63 (Okl.Cr. 1982). There, we held defense counsel should be given the opportunity to stipulate to a past conviction involving the use or threat of violence.
This Court held in Smith v. State, 819 P.2d 270 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992), that when the State additionally must prove the defendant has committed acts indicating he would be a continuing threat to society, the restraints in Brewer are not applicable. As this Court said in rejecting the notion a stipulation would suffice when such a circumstance existed:
Relying upon bare stipulations could result in erroneous findings of continuing threat. Requiring the defendant to refute the implication of a threat to society would amount to a shift in the burden of proof onto the defendant's shoulders to prove the absence of the aggravating circumstance. These are the very considerations that compelled the decision in Brewer. They also compel the decision that when the State alleges the continuing threat circumstance, it must not only be permitted but required to present evidence that the defendant's behavior demonstrated a threat to society, and a probability that the threat would continue to exist in the future.
Smith, 819 P.2d at 277-78 (emphasis in original).
Therefore, this complaint is without merit.
C.
Appellant complains in her seventeenth proposition her sentence should be reversed because the prosecution relied upon the same evidence to support both the aggravating circumstance of continuing threat and that of having a prior felony conviction involving the use of threat of force or violence to the person.
This Court has previously addressed this identical situation, observing that although the state did rely upon an appellant's prior convictions to support each aggravating circumstance, the convictions were not used to show the same aspect of an appellant or his crime.
The circumstance of prior violent felonies shows the aspect of a defendant as a violent and incorrigible person whose present *101 act, viewed in conjunction with his past conduct, can be appropriately punished only by imposing the ultimate sanction. On the other hand, the continuing threat circumstance goes to the aspect of the need for protection of society from the defendant's probable future conduct. Although the jury must of necessity consider the defendant's past conduct in arriving at its prediction, this does not make his past and future aspects the same.
Smith v. State, 819 P.2d 270, 278 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992). See also Green v. State, 713 P.2d 1032, 1040 (Okl.Cr. 1985); Funchess v. Wainwright, 772 F.2d 683, 692 (11th Cir.1985).
Here, the two do not overlap. In addition to the prior violent felony conviction, the prosecution also re-introduced the first-stage evidence into the sentencing proceedings to support the aggravating circumstance of continuing threat. This proposition is without merit.
D.
Appellant next complains the "continuing threat" aggravating circumstance is unconstitutionally vague. This Court has repeatedly rejected that challenge, see Williamson v. State, 812 P.2d 384, 410 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992), and Appellant has not cited additional authority in support her eighteenth proposition of error. It is therefore denied.
E.
Appellant next contends the court gave an improper instruction dealing with Oklahoma Uniform Jury Instruction Criminal (OUJI-CR) 440. She claims in this nineteenth proposition of error the instruction misstates the law. We disagree.
The instruction reads:
If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed.
OUJI-CR 440. Appellant compares this instruction to the statute, arguing that it should be interpreted to read the jury cannot impose the death sentence unless it finds the totality of the evidence in mitigation does not outweigh each aggravating circumstance individually. In other words, he argues each aggravating circumstance must stand alone against the totality of the mitigating circumstances; and if any one aggravating circumstance is outweighed in such a manner, the jury cannot impose the death penalty based on that aggravator.
This "divide and conquer" construction is not supported by the statute itself. The statute, 21 O.S.Supp. 1987, § 701.11, reads in pertinent part: "Unless at least one of the statutory aggravating circumstances enumerated in this act is so found or if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances, the death penalty shall not be imposed." Clearly, the singular "aggravating circumstance" in the phrase "any such aggravating circumstance" refers back to the first reference, "at least one of the statutory aggravating circumstances." We read no requirement that each aggravating circumstance must on its own stand against the totality of the mitigating circumstances. This is supported by 21 O.S. 1981, § 701.10(C), concerning general sentencing proceedings, where evidence may be presented "as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in Section 701.7 et seq. of this title." Under this section, all evidence in mitigation is presented, along with all evidence in aggravation. This Court has held that specific standards for balancing aggravating circumstances against mitigating circumstances are not constitutionally required. Sellers v. State, 809 P.2d 676, 691 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991). This instruction is one which assists the jury in balancing reasons a defendant deserves to live against reasons she should die and is not one involving concrete determinations of facts that establish guilt. See id.; see also OUJI-CR 438.
*102 Additionally, to place the construction Appellant urges would prohibit this Court from utilizing its authority to reweigh aggravating and mitigating circumstances should one aggravator be found to be invalid, see 21 O.S. 1991, § 701.13(E); Dutton v. Dixon, 757 P.2d 376, 378 (Okl.Cr. 1988), as we would have no way of knowing those situations where a jury may have found the existence of two aggravating circumstances, yet determined the totality of mitigating circumstances outweighed one aggravator but not the other. We do not believe the Legislature in one instance would give this Court the authority to reweigh aggravating and mitigating circumstances, then allow a statute which by its operation would deprive this Court of that very authority.
This assignment of error is without merit.
F.
Appellant in her twentieth proposition contends the trial court erred in allowing evidence of aggravation without first giving her proper notice of it. She complains of evidence she and Detra Pettus, the victim of the 1981 homicide, were friends who had taken a trip to Arkansas together. She does not claim the prosecution did not inform her evidence of the Pettus homicide would be used. This Court addressed a similar complaint in Williamson v. State, 812 P.2d 384 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992). There, we held the purpose of notification was to allow a defendant time to present a defense or an explanation for the conduct. Id. at 408. Here, the State filed notice of an open file policy (O.R. 81), indicating the information was available to Appellant. Additionally, this Court has held that "the State is not required to give a detailed description of the evidence that will be offered in order to meet the statutory notice of section 701.10." Id. (citing Wilson v. State, 756 P.2d 1240, 1245 (Okl.Cr. 1988)). Prosecutors informed Appellant details of the Pettus homicide would be presented in aggravation. We view this as sufficient in this case.
G.
Appellant next alleges the court improperly instructed the jurors that, although they must consider aggravating circumstances, they were permitted to ignore mitigating evidence altogether. The language he complains of is found at OUJI-CR 438.
We rejected this argument in Williamson, 812 P.2d at 409. We do so again.
H.
Likewise without merit is Appellant's twenty-second proposition, the court improperly instructed the jury in the manner in which they were to weigh aggravating and mitigating circumstances. She acknowledges the jury was instructed it had to find the presence of aggravating circumstances beyond a reasonable doubt, but complains the jury was told it could authorize the death penalty if it determined evidence in aggravation outweighed mitigating evidence. We have consistently rejected and continue to reject this argument. Williamson, 812 P.2d at 410 and cases cited therein.
I.
In the same manner we have rejected her twenty-third argument, that the trial court should have instructed the jury it had the option to return a life sentence regardless of its findings concerning aggravating and mitigating circumstances. Id.
J.
Appellant next contends her death sentence should be vacated because the court instructed the jury to determine punishment for the offense of felonious possession of a firearm in the same punishment stage. We initially note Appellant failed to object to the procedure or instructions at trial, and has thus waived all but fundamental error. Id. at 409.
Appellant directs our attention to the death sentence for the murder only. We note in that regard she was charged in the first stage with carrying a loaded firearm. The information claims a violation of 21 O.S.Supp. 1983, § 1283. This Court has held the better practice is to hold a bifurcated trial when a defendant violates the Oklahoma Firearms Act, which Appellant here did. See *103 21 O.S. 1981, § 1289.13; Cooper v. State, 765 P.2d 1211, 1213-14 (Okl.Cr. 1988). This practice applicable at the time of the trial[9] afforded a defendant greater protection. Therefore, the trial court was correct in following lowing the law set forth by this Court, and we cannot see how deliberation on the firearms charge in any way prejudiced the jury to inflict the death penalty.
This Court notes, however, that the conviction for the firearms charge must be reversed and remanded for a new trial. Although the trial court used the correct procedure, it failed to properly instruct the jury at the end of the first stage. The court instructed the jury on simple possession of a firearm, telling them the elements were (1) knowingly; (2) possessing; (3) any pistol; (4) such possession was wilful; (5) in Oklahoma County, Oklahoma (O.R. 174). This instruction does not apprise the jury of a crime in the state of Oklahoma. It is the carrying of a loaded firearm in a vehicle, see 21 O.S. 1981, § 1289.13, or carrying any firearm after conviction of a felony, see 21 O.S.Supp. 1983, § 1283, that makes the act a crime. Cooper, v. State, 751 P.2d at 1213-14. Omission of these elements makes reversal necessary. See Hackett v. State, 751 P.2d 761, 763 (Okl.Cr. 1988) (omitting elements of "assault and battery" and "intent to kill" from instruction defining elements of crime of assault and battery with a deadly weapon constituted reversible error).
Therefore, the conviction for Feloniously Carrying a Firearm must be REVERSED and REMANDED for a new trial. Appellant's twenty-fourth proposition is otherwise without merit.
K.
In her last proposition, Appellant claims the court erred in failing to instruction the jury on the "presumption of life." This argument has been considered and rejected by this Court before. Duvall v. State, 825 P.2d 621, 633-34 (Okl.Cr. 1991). We do so again.
VII. MANDATORY SENTENCE REVIEW
This Court is required by 21 O.S. 1991, § 701.13(C) to determine whether (1) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S. 1981, § 701.12. Pursuant to this mandate and in response to Appellant's sixteenth proposition of error, we shall first determine whether the evidence was sufficient to support the imposition of the death penalty.
Appellant asserts the evidence is insufficient both to show she posed a continuing threat to society (21 O.S. 1981, § 701.12(7), and that she had previously been convicted of a felony involving the use or threat of violence to the person (21 O.S. 1981, § 701.12(1)). The prosecution incorporated first-stage evidence, as well as presenting additional evidence in support of the aggravating circumstances. In addition to the evidence set forth earlier in this opinion, second-stage evidence showed Appellant had been convicted of first degree manslaughter in 1981 as a result of the death of Detra Pettus. Taken in the light most favorable to the prosecution, we find the evidence sufficient. Evidence concerning the prior manslaughter conviction showed Appellant was confronted with the threat of violence, left the area, returned with a pistol, pistol whipped the decedent, shot her in the abdomen, then told police she threw the weapon in a dumpster. That confrontation arose from a verbal disagreement, which escalated at least in part as a result of Appellant's conduct. The autopsy showed that decedent died as a result of a contact wound, indicating the weapon was fired from close range. As a result of this death, Appellant was convicted after pleading guilty to first degree manslaughter. Evidence of that *104 homicide can be combined with evidence from this trial which showed Appellant got into an argument with the decedent; followed her when she tried to leave the household and terminate the relationship; approached her at the police station, where she fired a shot into the decedent's abdomen; then fled, attempting to hide the weapon by giving it to an acquaintance. Before the shooting, Appellant had written cards and letters to the decedent, threatening her with violence if she tried to leave. After she was arrested, she told police she had thrown the pistol into a dumpster behind a nearby business. The same day she shot the decedent, she called the decedent's son and said she would not rest until the decedent was dead. We believe this evidence supports both the aggravating circumstance that Appellant constitutes a continuing threat, Battenfield v. State, 816 P.2d 555, 566 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992); Williamson v. State, 812 P.2d 384, 406 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992); and that she had previously been convicted of a felony involving the use or threat of force to the person. Smith v. State, 819 P.2d 270, 278 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992); Smith v. State, 737 P.2d 1206, 1214-15 (Okl.Cr. 1987), cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987).
The prosecution initially alleged three aggravating circumstances: that Appellant had been convicted of a felony involving the use or threat of violence; she posed a continuing threat to society; and the murder was committed to avoid lawful arrest or prosecution. As mitigation Appellant presented evidence showing she had a good relationship with her family; the circumstances of the crime did not warrant the death penalty; the relationship between Appellant and the decedent; her good work habits; her mental state at the time of the crime; her nature and personality; her chances of rehabilitation; her age; her fear of the victim and the victim's prior conduct of violence; her care for other human beings; her good conduct in the penitentiary; her showing of remorse; no prior criminal record except the one manslaughter conviction; she suffered emotional deprivation as a result of her childhood upbringing; the crime was committed in the heat of passion and she was emotionally unstable; treatment would be beneficial; the crime was not particularly heinous. The jury found the existence of the two aggravating circumstances discussed above, while declining to find she committed the murder to avoid arrest or prosecution.
Reviewing the evidence in mitigation and aggravation, we find the sentence of death to be factually substantiated and appropriate.
Finding no error warranting reversal or modification, the judgment and sentence for Murder in the First Degree is AFFIRMED. For the reasons stated above, we REVERSE and REMAND for a new trial the conviction for Felonious Possession of a Firearm.
JOHNSON, V.P.J., and STRUBHAR, J., concur.
CHAPEL, J., concurs in result.
LANE, J., dissents.
LANE, Judge, dissenting.
I must respectfully dissent to that part of the majority opinion which addresses the many facets of self-defense raised in this case.
That appellant shot and killed Gloria Leathers was not contested at trial. Of utmost importance to the appellant was her theory of self-defense. So important was this defense, she assumed the risk of cross-examination and exposure of her violent history to take the stand and present evidence necessary to raise it. The trial judge was satisfied she presented sufficient evidence to raise the defense and so instructed the jury. The record supports this discretionary determination. What the trial court did not do, and which requires reversal in this case, is instruct the jury that once the defense of self-defense is raised the State bears the burden to disprove it beyond a reasonable doubt. See OUJI-CR 745; West v. State, 798 P.2d 1083 (Okl.Cr. 1990).
Imposing itself as the trier of fact the majority substitutes proper appellate review *105 with a "we don't believe her" standard. Arguing its own factual spin the majority goes so far as announcing the trial court erred by finding the defendant put on enough evidence to take her theory of self defense to the jury. The simple truth is the record supports the trial court's decision that the defendant raised the theory of self defense. Thus, the trial court did not abuse its discretion by so instructing the jury. Whether the appellate court believes, or indeed whether the jury ultimately would have believed the defense is of no analytical consequence. What does matter is whether the proper trial consequences flowed from the undeniable fact the appellant successfully raised the issue of self-defense. Unfortunately they did not.
The majority summarily dismisses a number of alleged errors stating self-defense was not raised in this case. Since the defense plainly was raised, I must dissent from the majority's treatment of these issues as well. The most serious error is the failure of the trial court to instruct on the State's shifting burden. This error requires reversal and remand to the district court for new trial.
I also take exception to the majority finding the evidence the appellant was the "man" in her lesbian relationship has any probative value at all. Were this a case involving a heterosexual couple, the fact that a male defendant was the "man" in the relationship likewise would tell me nothing. I find no proper purpose for this evidence, and believe its only purpose was to present the defendant as less sympathetic to the jury than the victim.
NOTES
[1] Hereafter, all references to constitutional provisions will refer to the United States Constitution, unless otherwise noted.
[2] In considering this affidavit, we in no way retreat from our position in Brown v. State, 871 P.2d 56 (Okl.Cr. 1994), that supplementations of the record on appeal are not favored and ordinarily will not be granted. Here, however, Appellant earlier argued her conviction must be reversed because the court failed to make a record of all proceedings in her capital case. In that vein and in this isolated instance, we have determined we will allow the supplementation to assist us in determining whether the failure to transcribe the hearing and failure to appoint an investigator were harmless error.
[3] A statute in effect at the time of trial (since repealed) required a defendant in Appellant's position to demonstrate the services of the expert are "reasonably necessary to permit the defendant to adequately prepare and present his defense at trial... ." The trial court was then authorized to rule on the "reasonableness of the request." 22 O.S.Supp. 1985, § 464. In light of our holding the reasons given for the investigator are without merit, we need not address the question whether the court abused its discretion in Appellant's case.
[4] In questioning prospective juror Johnson, defense counsel stated: "[t]here's two life in prisons, one is with no possibility of parole and the other is life in prison. Now what do you deduct from those two options?" (Transcript of voir dire at 104). In questioning Mr. Drye, defense counsel stated: "... the legislature in its wisdom has set out three separate and distinct possibilities, one of those being life in prison. And do you have any preconceived notions about what that means?" He also asked the same person: "[d]o you have any preconceived notions about what [sic] life without the possibility of parole?" (voir dire at 596-97). As we are not called to do so, we make no determination at this time whether these questions are proper.
[5] Other testimony, of course, strongly conflicted with Appellant's version of events. That evidence is discussed below.
[6] In making this statement, we do not necessarily hold Appellant by her actions in following the decedent intended to provoke a confrontation. We merely state that this action, combined with actions discussed below, should be considered in determining whether the theory of self-defense is justified.
[7] That complaint, denial of an investigator at state expense, is addressed as a pre-trial issue, supra.
[8] Cases cited by Appellant, Commonwealth v. Sweeney, 368 Pa.Super. 33, 533 A.2d 473 (1987) and Commonwealth v. Scheps, 361 Pa.Super. 566, 523 A.2d 363 (1987) do not avail her. In Scheps, the court dealt with an abuse of discretion that occurred when the court's refused to allow an attorney to withdraw after a defendant clearly terminated the relationship with the attorney; Sweeney dealt with a situation that arises when an attorney who was hired to represent a defendant at trial was forced to represent the same client on appeal without further compensation. Even there, the gravamen of the case did not deal with a conflict of interest, but the abuse of discretion by the trial court in failing to appoint an appellate indigent defender when one was available, before the appeal was perfected.
[9] This was the procedure at the time of trial. Cooper has since been overruled. Compare Williams v. State, 794 P.2d 759, 761 (Okl.Cr. 1990) (holding an accused is not entitled to a bifurcated trial when the former conviction is an essential element of the firearms charge) with Booker T. Chapple v. State, 866 P.2d 1213, 64 O.B.J. 2606 (Okl.Cr.8-27-93) (holding that when a defendant is charged with a charge of felonious possession of a firearm and another felony, after conviction of a felony, the firearms charge shall be tried during the second stage of proceedings). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366715/ | 470 F.Supp. 91 (1979)
David YERKIE t/a Aquarius Towing and Storage
v.
POST-NEWSWEEK STATIONS, MICHIGAN, INC., et al.
Civ. A. No. M-78-1050.
United States District Court, D. Maryland.
April 9, 1979.
*92 Bert W. Kapinus, Mount Rainier, Md., for plaintiff.
William E. Nelson, Chevy Chase, Md., and L. Stanley Paige, Washington, D. C., for defendants.
Memorandum and Order
JAMES R. MILLER, Jr., District Judge.
This is an action for defamation growing out of a T.V. news program in which the T.V. news reporter allegedly made false or misleading statements relating to the manner and method in which the plaintiff conducted his towing business. Defendants have moved for summary judgment, claiming qualified privilege.
The plaintiff is a private party within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); and Jenoff v. Hearst Corp., 453 F.Supp. 541 (D.Md.1978).
Under present law, each state may establish the standard for liability in a private defamation suit as long as the standard is not liability without fault, Gertz v. Robert Welch, Inc., supra.
In Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976), the Maryland Court of Appeals concluded that, in cases of private defamation, the applicable standard in Maryland would be as set forth in the Restatement (Second) of Torts, Section 580B (Tentative Draft No. 21, 1975). That standard may be paraphrased as follows:
"One who publishes a false and defamatory statement concerning a private individual is subject to liability if (1) he knows that the statement is false and *93 that it defames the other person; or (2) he acts in reckless disregard of whether it is false or defames the other person; or (3) he acts negligently in failing to ascertain whether the statement is false or defames the other person."
In defamation actions brought by private plaintiffs, The New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), test of "constitutional malice," while not required to be met to recover for actual damages, is a prerequisite in Maryland and elsewhere to recover for presumed or punitive damages, Gertz v. Robert Welch, Inc., supra; Jacron Sales Co. v. Sindorf, supra, 276 Md. at 589-590, 350 A.2d 688; General Motors Corp. v. Piskor, 277 Md. 165, 174, 352 A.2d 810 (1976). The New York Times Co. "constitutional malice" test of "[k]nowing falsity or reckless disregard for truth involves proof of a `high degree of awareness of . . . probable falsity,' Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), such that the defendant `entertained serious doubts as to the truth of his publication.' St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)." Marchesi v. Franchino, 283 Md. 131 at 137, 387 A.2d 1129 at 1132 (1978).
While the doctrine of a conditional or qualified privilege has been retained by the Maryland Court of Appeals in the post Gertz law of defamation in Maryland, the degree of malice required to defeat the defense of a conditional or qualified privilege in cases of private defamation is measured by The New York Times Co. "constitutional malice" standard of "`knowledge of falsity or reckless disregard for truth,'" Marchesi v. Franchino, supra.
To summarize, therefore, in Maryland at the present time, in a defamation suit brought by a private plaintiff against a media defendant, the measure of liability is the negligence standard unless the circumstances have given rise to a conditional or qualified privilege in which event The New York Times Co. test must be met by the plaintiff in order to defeat the defense of privilege.
Judge Levine for the Maryland Court of Appeals in Jacron Sales Co., supra, went to great length to explain that the ". . . very essence of the Gertz decision . . . was the shift in focus from the protection of free expression . . . to the state interest in protecting private persons who have been defamed." 276 Md. at 589, 350 A.2d at 693. Nothing in Jacron Sales Co. or its progeny indicates that the Maryland Court of Appeals has intended to expand the defense available to the media of conditional privilege to make it more difficult for a private plaintiff to obtain recovery in a defamation suit. If anything, the defense of qualified privilege available to the media, which existed in the pre-New York Times Co. days when, in the absence of a privilege, liability for a false defamatory statement existed without fault, is less necessary to maintain a proper balancing of conflicting interests now that a media defendant may be held liable only for actual damages caused by its negligence and may not be held liable for presumed damages or punitive damages in the absence of "constitutional malice."
The question of whether a defamatory communication enjoys a conditional privilege is one of law for the court. Jacron Sales Co. v. Sindorf, supra, 600, 350 A.2d 688.
The common law recognized at least three types of conditional or qualified privilege: (1) conditional privilege arising from an occasion; (2) privileged criticism or "fair comment"; and (3) special privilege including reports of special proceedings or public meetings.
Reports of an official proceeding or of a meeting open to the public which deals with a matter of public concern are privileged if substantially accurate and fair and impartial. See for instance Restatement (Second) of Torts, Section 611; Brush-Moore Newspapers Inc. v. Pollitt, 220 Md. 132, 151 A.2d 530 (1959); Evening News Co. v. Bowie, 154 Md. 604, 610-611, 141 A. 416 (1928); Piracci v. Hearst Corp., 263 F.Supp. 511, 513 (D.Md.1966). While a privilege *94 applicable to reports of official proceedings applies to a report of the fact of arrest or the fact that a charge has been made, it does not apply to statements made by the police, by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given which have not yet been made a part of the judicial proceeding or of the arrest process. See Restatement (Second) of Torts, Section 611, Comment D. In the instant case, there was never an arrest or judicial proceeding and the qualified privilege relating to the reports of such proceedings is not applicable.
The common law qualified privilege of "fair comment" is probably no longer needed. The Second Restatement of Torts omits this privilege stating "A statement of opinion which does not imply a defamatory statement of fact is no longer actionable, and no privilege is needed." This view seems in accord with the Maryland law. While Maryland cases have recognized the "fair comment" privilege, they have held that it does not extend to repetition of false statements, Pulvermann v. A. S. Abell Co., 228 F.2d 797, 802 (4th Cir. 1956), and can only prevail when the facts on which a privilege is based are truly stated or privileged themselves, Brush-Moore Newspapers v. Pollitt, supra. That "fair comment" privilege does not afford the defendants in this action any real protection.
No Maryland case has been found which applies the qualified or conditional privilege arising from an occasion to the media. See e. g. Marchesi v. Franchino, supra; Jacron Sales Co. v. Sindorf, supra; Hollander v. Pan American World Airways, Inc., 382 F.Supp. 96 (D.Md.1974); Orrison v. Vance, 262 Md. 285, 277 A.2d 573 (1971). By implication, Judge Harvey of this court in Jenoff v. Hearst Corp., 453 F.Supp. 541 (D.Md. 1978), held that the qualified or conditional privilege of occasion does not apply to the media merely because the media have published events considered to be newsworthy to the world at large.
This court is of the view that under Maryland law, a qualified privilege does not exist for the media simply because the alleged defamatory material relates to a subject of general or public interest. If the media were to have such a qualified privilege, the practical result would be to place the law of defamation in Maryland relating to the media to the condition argued for by the plurality in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which was rejected in Gertz. The Court of Appeals of Maryland has given no indication that it desires to achieve that result.
The defendants' motion will be denied.
It is SO ORDERED this 9th day of April, 1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366760/ | 871 P.2d 540 (1994)
STATE of Utah, Plaintiff and Appellee,
v.
Teri Lin GODDARD, Defendant and Appellant.
No. 910241.
Supreme Court of Utah.
March 9, 1994.
*542 R. Paul Van Dam, Atty. Gen., Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Curtis C. Nesset, Salt Lake City, for defendant and appellant.
HOWE, Justice:
Defendant Teri Lin Goddard appeals from her conviction of second degree murder under Utah Code Ann. § 76-5-203 (1990).[1] She contends that (1) insufficient evidence was adduced to sustain her conviction; (2) the trial court erroneously denied her motion for a directed verdict; (3) newly discovered evidence entitled her to a new trial; (4) she had ineffective assistance of counsel; and (5) she was deprived of her right to a unanimous jury verdict.
FACTS
We review the facts in a light most favorable to the jury verdict. State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992). Goddard lived with her seven-year-old son, Dustin, and her boyfriend, Derek Hall. Hall was in violation of his parole agreement and was aware that a warrant had been issued for his arrest. Throughout the day of June 1, 1990, Goddard and Hall drank alcoholic beverages. In the early evening, Hall went to a neighbor's house and continued drinking. Goddard eventually followed Hall to this house. Hall later went by himself to the house of a second neighbor, Frank Gutierrez, for a drinking party. Jay Jackson and at least two women were also at the Gutierrez residence. Around 7 p.m., Hall and Gutierrez left in Gutierrez's truck to buy more beer. As Goddard saw the truck leaving, she yelled, "Don't you come back here or I'll kill you. You stay the hell away from me." Around 10 p.m., Goddard went to Gutierrez's house initially planning to retrieve Hall, but she, too, joined the party. At one point during the party, in Hall's presence, Goddard took Gutierrez's hands and placed them on her breasts. Hall left shortly after this incident and returned home.
Still at the party, Goddard began to argue with two women, one of whom wanted to purchase cocaine. This argument appeared to be provoking violence, so Gutierrez asked the women to leave. Goddard returned home, where Hall was waiting. He was wearing blue jeans but no shirt. Goddard testified that because of the argument which occurred at the party, she was afraid for her safety and consequently took a fish fillet knife from her kitchen drawer to protect herself from the women. Since there was an outstanding warrant for his arrest, Hall became upset over the possibility of police involvement. He and Goddard began to argue. Near this time, a neighbor was awakened by loud voices coming from the Goddard house.
At trial, each party advanced a different version of how Hall's death occurred. Goddard testified that Hall pushed her into a swivel rocking chair. She was slanted in the chair with her pelvis just off the front of the seat and her head at the back. Then Hall kneeled between her legs and grabbed her arms while she held the knife, which pointed up at him. Hall next grabbed her hand, which was holding the knife close to her body. Goddard testified that Hall leaned forward on her, accidentally impaling himself on the knife. As they stared at each other, Hall stated, "What did you do, stab me in the heart?" Goddard still clung to the knife as Hall fell to the side of the chair. He then collapsed backward on the floor and died. Upon realizing what had happened, Goddard became hysterical and ran throughout the neighborhood, knife in hand, screaming for *543 someone to call the police. The State's version is different as it asserts that Goddard stabbed Hall in the chest during an altercation.
The knife punctured Hall's chest, and blood filled his pericardial sac, compressing the heart and causing death. A jury convicted Goddard of second degree murder.
ANALYSIS
I. Sufficiency of Evidence
Goddard first contends that there is insufficient evidence to support her second degree murder conviction. The State charged her under the first three variants of Utah's second degree murder statute: (1) The defendant intentionally or knowingly caused the death of another; (2) intending to cause serious bodily injury to another, the defendant committed an act clearly dangerous to human life that caused the death of another; and (3) acting under circumstances evidencing a depraved indifference to human life, the defendant engaged in conduct which created a grave risk of death to another and thereby caused the death of another. Utah Code Ann. § 76-5-203(1)(a), (b), (c).
After the prosecution presented its case, Goddard moved to dismiss the charge for lack of evidence. The trial court refused to dismiss the first two variants but did dismiss the third variant, depraved indifference murder. At the close of all the evidence, the court denied Goddard's motion for a directed verdict in which she argued that the evidence did not support an intentional or knowing homicide or an intent to inflict serious bodily injury. After the jury found Goddard guilty, she moved to arrest the judgment. The court denied the motion.
In reviewing the sufficiency of the evidence in a criminal conviction, we reemphasize the limited role of an appellate court. In such cases, we afford great deference to the jury verdict. State v. James, 819 P.2d 781, 784-85 (Utah 1991). We will not sit as a second fact finder, nor will we determine the credibility of witnesses. That is the prerogative of the jury. "Where there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the elements of the crime can be made beyond a reasonable doubt, our inquiry is complete and we will sustain the verdict." State v. Gardner, 789 P.2d 273, 285 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990). We will reverse a criminal conviction for insufficient evidence only when the evidence is so inconclusive or so inherently improbable that "reasonable minds must have entertained a reasonable doubt" that the defendant committed the crime. State v. Petree, 659 P.2d 443, 444 (Utah 1983), superseded by rule on other grounds, State v. Walker, 743 P.2d 191 (Utah 1987).
Goddard attacks the State's evidence of her intent. She concludes that the surrounding circumstantial evidence was tenuous and that the jury made a speculative leap to reach its guilty verdict. Indeed, proving intent is no easy matter. Such a determination is "rarely susceptible of direct proof." State v. Murphy, 617 P.2d 399, 402 (Utah 1980). As we stated in State v. Canfield, 18 Utah 2d 292, 422 P.2d 196, 198 (1967), we are aware of no better way to determine a defendant's intent than by showing both what she did and what she said. That is precisely how we will proceed in the instant appeal.
One of Goddard's neighbors, Christine Grogan, testified that on the evening of Hall's death, she saw Goddard and heard her scream at Gutierrez's truck, "Don't you come back here or I'll kill you. You stay the hell away from me." Gutierrez later testified that he and Hall had driven in his truck to buy more beer on the evening this threat was made. Although Grogan did not think much of the threat at the time, it would not be unreasonable for the jury to infer that Goddard directed this threat toward Hall. Gutierrez also testified that at the party, in Hall's presence, Goddard took Gutierrez's hands and placed them on her breasts. Although Gutierrez interpreted this action as a joke, it seems reasonable for the jury to infer that there was some ongoing dispute between Goddard and Hall and that her actions were meant to provoke or upset him. Another neighbor, Beth Steed, testified that near the time of Hall's death, she was awakened *544 by loud male and female voices coming from the Goddard home. From this, a jury could reasonably infer that Goddard and Hall were arguing or fighting. This is all evidence of what Goddard did and said, and although it is not direct proof, a jury could reasonably infer that there was hostility between her and Hall. See State v. Emmett, 839 P.2d 781, 784 (Utah 1992).
The physical evidence and expert opinion offered by the State similarly support the guilty verdict. Dr. Sharon Schnittker, a forensic pathologist and the associate state medical examiner, was a critical witness for the State. She testified that Goddard's version of how Hall's death occurred was "extremely unlikely." Dr. Schnittker observed that there was no blood on the front of Goddard's sweatshirt or hands. She concluded that this was inconsistent with Goddard's testimony of how Hall impaled himself on the knife while he was directly over her in the chair. Dr. Schnittker opined that Hall's three-inch wound was the result of thrusting or stabbing into the chest and the cartilage protecting the heart. From this, she concluded that it would also be unlikely that the victim accidently impaled himself by falling on the knife. Based on Goddard's own testimony, Dr. Schnittker pointed out that Hall was securely braced in his stance over Goddard with both legs and knees on the ground and with both hands clutching Goddard. She therefore viewed it unlikely for Hall to drop or lean onto the knife with the necessary force to penetrate his chest. Since Hall had grasped Goddard's hand that held the knife, Schnittker concluded that Hall could have easily deflected the knife before it penetrated his chest. Finally, Dr. Schnittker had discovered a wound on Hall's left palm. Although this cut was extremely superficial, Dr. Schnittker testified that it could have been a defensive wound. In light of all this testimony and physical evidence, we find it reasonable for the jury to have rejected Goddard's account of Hall's accidental death.
Goddard argues that the testimonies of the State's witnesses are internally inconsistent. Specifically, she emphasizes how Grogan thought nothing of the alleged threat when it was made and that she did not see Hall in Gutierrez's truck. She points out that Gutierrez, himself, interpreted Goddard's actions at the party to be in jest and that Hall left the party in a good mood. Steed stated that although she heard loud voices from the Goddard home, she could not decipher what was said. Finally, Goddard assails Dr. Schnittker's opinions because she admitted that holding a person's arms could stabilize the knife sufficiently to cause the wound if the victim fell on it and because she did not know the exact amount of force used to cause the fatal wound. These are not internal inconsistencies. Witness testimony is often incomplete and lacking in detail. The law allows juries to draw fair inferences from such testimony, and as long as these inferences are not speculative, an appellate court is obligated to uphold them. The alleged inconsistencies or voids simply go to the weight of the testimony and are factual questions for the jury to determine.
It is true that Goddard was the only witness to the events immediately preceding Hall's death. However, she is not entitled to reversal of her conviction simply because her version of the facts is different from the State's or simply because there are some gaps in the State's evidence. "The existence of contradictory evidence does not warrant disturbing the jury's verdict.... The fact finder is free to weigh the conflicting evidence presented and to draw its own conclusions." State v. Pierce, 722 P.2d 780, 781-82 (Utah 1986) (citations omitted); see State v. Carlsen, 638 P.2d 512, 514-15 (Utah 1981), cert. denied, 455 U.S. 958, 102 S.Ct. 1469, 71 L.Ed.2d 676 (1982). The jury need not accept defendant's version of the facts but may disregard it in whole or in part. Pierce, 722 P.2d at 781. In essence, Goddard urges us to retry the facts of this case on appeal, and we refuse to do so. In light of the entire evidentiary picture, we conclude that a jury could reasonably disregard Goddard's testimony and that reasonable minds could infer the required mens rea for second degree murder beyond a reasonable doubt.
II. Dismissal of Depraved Indifference Alternative
Since we have already determined that there was sufficient evidence to uphold the *545 conviction under either of the first two variants of second degree murder, we need not address the propriety of the trial court's dismissing the third variant concerning depraved indifference. When the trial court eliminated this third alternative, it narrowed the possible guilty options for the jury. If anything, Goddard benefitted by this dismissal.
III. Denial of Motion for New Trial
A trial court may grant a new trial "in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." Utah R.Crim.P. 24(a). Following the trial, Goddard moved for a new trial, supported by the affidavit of Dr. Judith Bunker, who Goddard asserts is a nationally recognized blood spatter expert. Goddard argued that Dr. Bunker's conclusions were new and exculpatory evidence which warranted a new trial because they supported her testimony that Hall's death was accidental.
A trial court has a wide range of discretion in determining whether newly discovered evidence entitles a litigant to a new trial. State v. James, 819 P.2d 781, 793 (Utah 1991). If the trial court's decision is within the limits of reasonability, we will uphold it. State v. Hamilton, 827 P.2d 232, 239-40 (Utah 1992). We recently set out the standard that new evidence must meet to constitute grounds for a new trial:
(1) It must be such as could not with reasonable diligence have been discovered and produced at the trial; (2) it must not be merely cumulative; (3) it must be such as to render a different result probable on the retrial of the case.
James, 819 P.2d at 793. All three of these criteria must be met. Also, newly discovered evidence should clarify a fact that was contested and resolved against the movant. State v. Worthen, 765 P.2d 839, 851 (Utah 1988).
At the hearing held on Goddard's motion for a new trial, she asserted that Dr. Bunker concluded that Hall was kneeling when the wound was inflicted, that there was no evidence of "blood spurting or otherwise projecting," that blood could have dripped onto the back of Goddard's sleeve rather than the on front of her sweatshirt, and that blood stains on the chair were consistent with Hall's impaling himself on the knife, pulling back, and then falling forward again onto the arm of the chair.
The prosecutor responded by separately analyzing Dr. Bunker's six conclusions and then arguing to the trial court that none of them contradicted Dr. Schnittker's testimony. The trial judge agreed, ruling that Dr. Bunker's affidavit was "not sufficiently inconsistent with the evidence as presented to the jury," and denied the motion for a new trial.
We have reviewed the argument made by counsel to the trial court and conclude that the denial of the motion "is within the limits of reasonability." Hamilton, 827 P.2d at 239-40. The State admitted that the immediate details surrounding Hall's death were uncertain. On cross-examination, Dr. Schnittker answered that she was not sure whether Hall was standing or kneeling when he was fatally wounded. Because the trial court found that Dr. Bunker's conclusions were not sufficiently inconsistent with the evidence presented to the jury at the trial, it is not probable that a different result would occur on retrial. James, 819 P.2d at 793.
IV. Ineffective Assistance of Counsel
Goddard contends that her trial counsel was ineffective in several instances. In order to constitute ineffective assistance, counsel's performance must, first, fall below an objective standard of reasonableness and, second, prejudice the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To facilitate this analysis, an appellate court may skip to the second prong of the Strickland standard and determine that the ineffectiveness, if any, did not prejudice the trial's outcome. Id. at 697, 104 S.Ct. at 2069-70; State v. Hay, 859 P.2d 1, 5 (Utah 1993).
Goddard first asserts that her representation was deficient because her counsel failed to investigate and challenge the State's "blood spatter" evidence until after trial, *546 when she procured the affidavit of Dr. Bunker. The latter did not testify at trial. We find no merit in this assertion because, as we have pointed out above, the trial court concluded that the "new blood spatter" evidence presented through Dr. Bunker's affidavit and report was not "sufficiently inconsistent with the evidence as presented to the jury" to warrant a new trial. We agree with that conclusion. Therefore, Goddard was not prejudiced by reason of her counsel's failure to adduce Dr. Bunker's testimony at trial.
Goddard next contends that her counsel was ineffective because she failed to challenge Dr. Schnittker's qualifications to testify concerning what Goddard asserts was blood spatter evidence. We are unable on the record before us to address this contention. While Goddard has cited State v. Rodgers, 119 Idaho 1047, 812 P.2d 1208 (1991), where it was recognized that blood spatter analysis is a "well recognized discipline," we have no record from which we can determine the parameters of that discipline. Id. at 1212. Dr. Schnittker was qualified as a forensic pathologist and held the office of associate state medical examiner. There is nothing before us to indicate that any of her testimony went beyond those qualifications and into a discipline where she was not qualified. While she did draw a conclusion from the absence of blood on the front of Goddard's shirt, we have no way of knowing whether this testimony took her into the realm of blood spatter evidence.
Goddard also contends that her counsel was ineffective because she failed to object when the prosecutor repeatedly asked Goddard why other witnesses would lie. Goddard denied yelling threats at Hall while he was in Gutierrez's truck. She denied placing Gutierrez's hands on her breasts at the party and denied having a loud argument just before Hall's death. She even denied, as Gutierrez testified, that she showed up at Gutierrez's house immediately after the stabbing asking him to call the police. After each denial, the prosecutor specifically asked if Goddard knew of any motivation for these prior witnesses to lie.
Such questions by the State were improper. In dictum in State v. Emmett, 839 P.2d 781, 787 (Utah 1992), we stated that it is inappropriate "to ask a criminal defendant to comment on the veracity of another witness." We also noted that there is a general prejudicial effect in these types of questions. Id. However, we now clarify that, in and of themselves, these improper questions do not automatically warrant reversal. Rather, it is necessary to examine their overall effect on a case-by-case basis and determine whether the errors affected the entire evidentiary picture or had an isolated effect. State v. Templin, 805 P.2d 182, 187 (Utah 1991).
In the instant case, counsel's failure to object to the improper questions does not undermine our confidence in the guilty verdict. Id. These questions were not lengthy and were not the focus of the State's cross-examination. They were brief references to which Goddard, for the most part, simply responded "no." In fact, in answering the question concerning Gutierrez's motivation to lie, Goddard responded that she had no idea because "they get so drunk down there, they do all kinds of other stuff down there." This response may have impeached Gutierrez's testimony and actually help Goddard's case. We do not believe that this brief line of questioning forced the jury to disregard its sworn duty to decide the case on the evidence, and there is no reasonable probability that they would have come to a different conclusion. See id. Counsel's failure to object to these questions did not prejudice the case.
V. Jury Unanimity
Goddard contends that it was error for the trial court to refuse to require the jury to be unanimous as to which variant of second degree murder she committed. Utah Code Ann. § 76-5-203(1)(a), (b). In State v. Russell, 733 P.2d 162 (Utah 1987), we held that the right to a unanimous jury verdict does not include a right to a unanimous decision as to which of the first three variants the jury chose in the single crime of second degree murder. Id. at 165. Goddard was thus entitled only to a unanimous verdict *547 that she was guilty of the crime of second degree murder.
We affirm the conviction.
ZIMMERMAN, C.J., and DURHAM, J., concur.
STEWART, Associate C.J., concurs in the result.
HALL, J., heard arguments but retired before he could act on the opinion.
NOTES
[1] Following this verdict, the statute was amended in 1991, deleting the second degree murder classification and making the crime simply "murder." Utah Code Ann. § 76-5-203 (Supp. 1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/853320/ | 754 N.E.2d 502 (2001)
Charles SMITH, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 33S00-9911-CR-644.
Supreme Court of Indiana.
September 10, 2001.
*503 John Pinnow, Special Assistant to the State Public Defender, Indianapolis, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
SULLIVAN, Justice.
Defendant Charles Smith was convicted of murder for shooting his cousin and slitting his throat. He argues that the trial court improperly prevented him from contending that another person was the killer when it excluded evidence that the victim had threatened his wife's family and had used drugs. We affirm his conviction, finding the evidence he sought to present not relevant because it did not suggest the existence of another suspect.
Background
The facts favorable to the judgment indicate that on August 30, 1998, Defendant Charles Smith and his friends Verlie and Bruce Hinton, Joshua Hinton, Barbara Reno, and Tammy Denny gathered at the Hintons' residence. Tammy began discussing her marital problems. Defendant and her husband, Melvin Denny, were cousins. In particular, she revealed that Melvin verbally abused her and her children. Bruce Hinton and Defendant contemplated whether Melvin had been molesting Tammy's children. Defendant began striking his fist against his hand and said that something had to be done. He told Reno that "everything's going to be alright." (R. at 2197 98.) And he informed Joshua Hinton that he was going to "take care of business." (R. at 2259.)
The next morning at approximately 2:00 a.m., Defendant appeared at the residence *504 of Melinda Westrater, the niece of his then-girlfriend, Sheila Pierce. Defendant told Westrater that one of his family members had been killed and that no one else in the family had been notified. Defendant also stated that his relative's throat had been "slashed."
That evening, Defendant went to the residence of Mandy Ashley, another of Defendant's cousins. Defendant told Ashley that he was in trouble and that he was going to leave town. Defendant admitted that he had "offed" someone. Defendant revealed that that person was his cousin. When Ashley thought Defendant was joking, Defendant said that because he had "already `offed' one family member," she could be next. (R. at 2387.) He continued with his confession, explaining that he rode to the victim's house on his bicycle, emptied his gun into his head, and cut his throat. He stated that the victim deserved to die because the victim was a child molester. Defendant also told Ashley that he took that personally because he had also been molested as a child.
That night, Tammy's sister, Debbie Thatcher, and Debbie's fiancé, Ryan Gross, found Melvin dead inside his home. Melvin had died from multiple gunshots to the head and suffered a laceration to the throat. During a warrant search of Defendant's house, officers discovered several.22 caliber rifles but found no murder weapon. The officers did find shell casings that matched the type of weapon used to commit the killing.
The State charged Defendant with Murder[1] and with being a Habitual Offender.[2] A jury found Defendant guilty of murder. Defendant pled guilty to the habitual offender charge. A trial court sentenced Defendant to a total of 95 years imprisonment.
Additional facts will be recited as necessary.
Discussion
I
Defendant contends that the trial court committed reversible error when it excluded evidence showing "that [the] murder victim Melvin Denny had repeatedly threatened his mother-in-law and other members of his wife's family." Appellant's Br. at 17. He argues that such evidence was relevant to establish that members of the victim's wife's family had a motive to kill and thus made it less probable that Defendant committed the killing. See id. at 15, 21.
Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind. Evidence Rule 401. In the context of Defendant's claim here, we have said that "evidence which tends to show that someone else committed the crime logically makes it less probable that the defendant committed the crime, and thus meets the definition of Rule 401." Joyner v. State, 678 N.E.2d 386, 389 (Ind. 1997), reh'g denied. We review a trial court's determination of admissibility for an abuse of discretion and will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id. at 390.
After the trial court granted the State's motion in limine excluding evidence of alleged threats made by the victim to his wife's family, Defendant tendered the following: (1) Ryan Gross's testimony that he had heard from an unidentified person that the victim had threatened to hit Thatcher;
*505 (2) Reno's testimony that Tammy told Reno that the victim had previously threatened to shoot his mother-in-law; and (3) Verlie Hinton's testimony that the victim threatened his mother-in-law and brother-in-law. See Appellant's Br. at 19-20. Defendant also argues that the "trial court's categorical and arbitrary exclusion of relevant and competent evidence that [the victim] repeatedly threatened members of his wife's family prevented [him] from presenting his defense that other people had the motive and opportunity to kill the victim." Appellant's Br. at 27.
Defendant cites to our decision in Joyner in support of his contention that this evidence should have been admitted to show that another person may have committed the crime. But in Joyner, the defendant had sought to present specific factual evidence concerning a possible other suspect, the possible other suspect's having been seen with the victim, and an argument between the possible other suspect and the victim. See Joyner, 678 N.E.2d at 389-90. In this case, Defendant only sought to present (mostly hearsay) evidence of various threats made by the victim himself; there was absolutely no effort to present any evidence of any behavior by any other person suggesting the existence of another suspect. In sum, there is nothing in the fact standing alone of the victim having made threats that suggests the existence of another suspect. For that reason, the evidence Defendant sought to present falls well short of the test for admissibility enunciated by Joyner. See also Cook v. State, 734 N.E.2d 563, 568 (Ind.2000), reh'g denied; Hauk v. State, 729 N.E.2d 994, 1001-02 (Ind.2000); McIntyre v. State, 717 N.E.2d 114, 123-24 (Ind.1999), reh'g denied.
II
Defendant makes a similar claim in respect of his assertion that the trial court committed reversible error when it excluded evidence of the victim's drug use because "part of [his] defense was that [the victim's] drug use played a role in his death." Appellant's Br. at 28. He argues that such evidence would have allowed him to put on a proper defense that the victim's "drug use rather than his alleged mistreatment of his children led to his death." Id. at 30.
In support of this argument, Defendant sought to introduce at trial the following evidence of the victim's alleged prior drug use: (1) Ryan Gross's testimony that he had once observed the victim smoke marijuana and that the victim had told him that he had previously used heroin; (2) John Hicks's testimony that he had smoked marijuana with the victim; (3) Debbie Thatcher's testimony that she had seen the victim smoke marijuana; and (4) Verlie Hinton's testimony that the victim told her that he had "50 dollars worth" and she presumed that the victim was referring to drugs. The trial court sustained the State's objection, ruling such evidence as irrelevant.
We find that excluding evidence of the victim's alleged drug use was proper. As in the preceding section, Defendant's asserted purpose in presenting this evidence was to suggest that persons other than the Defendant had a motive to kill the victim. But much like the threats against in-law evidence, Defendant only sought to present evidence of drug use by the victim himself; there was absolutely no effort to present any evidence of any behavior by any other person suggesting the existence of another suspect. Again, the evidence Defendant sought to present falls well short of the applicable test for admissibility. See Williams v. State, 681 N.E.2d 195, 198-99 (Ind.1997) (ruling that evidence of a victim's drug use is generally irrelevant *506 except in relation to the victim's mental capacity to recall the crime and to testify about it); see also Pannell v. State, 686 N.E.2d 824, 826 (Ind.1997) (holding that evidence of a murder victim's past drug use was irrelevant).
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ. concur.
NOTES
[1] Ind.Code § 35-42-1-1 (1998).
[2] Id. § 35-50-2-8. | 01-03-2023 | 03-02-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265387/ | 657 F.Supp. 448 (1987)
Albert F. THOMASSON, Burgess A. Thomasson, McMillan Refining, Inc., McMillan-Johns Exploration, Inc., Sea Island Processing, Ltd., and Sea Island Explorations, Ltd., Plaintiffs,
v.
MANUFACTURERS HANOVER TRUST COMPANY, Mbank Dallas, A National Association, for Itself and as Agent, Continental Illinois National Bank and Trust Company of Chicago, Bank of Montreal and First City National Bank of Houston, Defendants.
Civ. A. No. H-86-2288.
United States District Court, S.D. Texas, Houston Division.
April 7, 1987.
*449 J. Michael Rediker, Ritchie & Rediker, Birmingham, Ala., for nonparty Gary J. Knostman, trustee, Bankruptcy Estate of Tomlinson Interests, Inc.
Donald M. Wright, Sirote, Permutt, Friend, Friedman, Held & Apolinsky, PC, Birmingham, Ala., Kelly J. Coghlan, Dotson, Babcock & Scofield, Houston, Tex., for plaintiffs.
Donald W. Steward, Birmingham, Ala., Morton L. Susman, Weil, Gotshal & Manges, J. Eugene Clements, Porter & Clements, Houston, Tex., for defendants.
MEMORANDUM OPINION AND ORDER
HITTNER, District Judge.
Pending before this Court is Defendants' Motion to Dismiss.[1] Having considered *450 this motion, the extensive briefing by the parties, the argument of counsel, and the applicable law, the Court is of the opinion that Defendants' motion must be granted in part and denied in part.
Plaintiffs, minority interest owners in a limited partnership, have asserted nine separate causes of action against Defendants:
1. Civil violation of RICO;
2. Conspiracy to violate RICO;
3. Rule 10b-5 security fraud;
4. Tortious interference with contract or business relations;
5. Fraud, misrepresentation and suppression of material facts;
6. Breach of fiduciary duty, and aiding and abetting such breach;
7. Conversion;
8. Damages for destruction of property; and
9. Breach of warranty.
Defendants urge dismissal of these causes of action on a variety of theories. The majority of those theories have as their basis the contention that Plaintiffs have failed to state a claim upon which relief may be granted. As to all theories grounded on that premise, the Court finds that dismissal is inappropriate because Defendants have failed to meet the required standard for dismissal, i.e. they have failed to show beyond doubt that Plaintiffs can prove no set of facts in support of their claim which would entitle Plaintiffs to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Additionally, Defendants urge theories grounded on lack of standing. Defendants contend that dismissal of all the claims of the Plaintiffs who are partners in the partnership known as Republic Refining Limited (the Partner/Plaintiffs), except Plaintiffs' security and warranty claims, is required because Plaintiffs are asserting partnership interests, not individual claims. For the reasons set forth below, the Court is of the opinion that the Partner/Plaintiffs' claims grounded on allegations of conversion of their contribution to the partnership and damages for destruction of partnership property should be dismissed, and that the Partner/Plaintiffs' RICO and common law fraud allegations should be dismissed only to the extent that they relate to damage to the Partner/Plaintiffs' contribution to the partnership.
FACTUAL BACKGROUND
During the 1970's, Plaintiffs acquired a 44 percent working interest in a Mississippi gas field known as the "Johns Field." Tomlinson Interests, Inc. (TII) acquired the remaining 56 percent interest and was designated as operator of the field.
After completion of the first productive well, it was discovered that the Johns Field contained "sour gas," which required further processing before it could be marketed. A limited partnership, known as Republic Refining Limited (RRL), was formed for the purpose of constructing, owning, and operating a gas processing plant to process the "sour gas." Plaintiffs, with the exception of McMillan-Johns Exploration, Inc., were investors in the plant and thus in the partnership.[2] All Partner/Plaintiffs are general partners, with the exception of Sea Island which is a limited partner. Republic Refining Co. (RRC) was incorporated as a subsidiary of TII for the purpose of owning 60 percent interest in the processing plant and was designated as managing partner. Revenues of RRL were to be generated through payment of processing fees pursuant to gas processing agreements executed by and between the Johns Field partners and RRL.
Defendants (the Bank Group) financed the construction of the gas processing plant. The loan was negotiated by RRC as the managing partner of RRL. Plaintiffs allege that, although they were general partners, pursuant to the RRL Partnership Agreement, they were to be liable only for *451 a total of $50,000,000, which they contributed in the form of Letters of Credit. TII was to guarantee RRC's 60 percent of the construction loan.
Plaintiffs allege that the Bank Group committed the following wrongful acts:
1. The Banks, with knowledge that the RRL Partnership Agreement was being violated, obtained a security interest in the Plaintiffs' gas processing agreements as part of the construction loan.
2. The Banks conspired to conceal this fact from Plaintiffs.
3. The Banks assumed control of the revenues of TII, RRC, and RRL and used that control to cause a default in the construction loan.
4. The Banks failed to apprise Plaintiffs of RRL's default.
5. The Banks wrongfully drew on Plaintiffs' letters of credit submitted as collateral for the construction loan.
6. The Banks caused the transfer of TII's affiliated entities' assets.
7. The Banks instituted an action in Mississippi state court to foreclose on the construction loan.
The central theme running through Plaintiffs' allegations is that the Banks committed the above wrongs through a conspiracy with RRL's managing partner.
CATES v. INTERNATIONAL TELEPHONE & TELEGRAPH CORP.
To support their contention that the Plaintiffs lack standing to assert the above-alleged wrongs, the Banks rely on the leading Fifth Circuit case on the issue of the ability of an individual partner to assert partnership-related interests, Cates v. International Telephone & Telegraph Corp., 756 F.2d 1161 (5th Cir.1985). The Banks direct this Court's attention to the Cates holding that
any claims for damages which Cates suffered by reason of diminution in value of his partnership interest, or his share of partnership income, or his salary or bonus from the partnerships or their businesses, by reason of breach of such agreements, or tortious interference with such businesses, or anticompetitive conduct interfering with or limiting or "taking over" such businesses or their activities, are in effect subsumed within the causes of action of the partnerships (footnote omitted) and do not afford Cates (or his legal representative) a separate, individual cause of action.
Id. at 1181.
The Plaintiffs, in turn, also rely upon Cates to support their contention that their claims are not partnership claims, but are similar to those allegations of the Cates complaint which the Court suggested might be individual rather than partnership claims. Among those claims which the Cates court characterized as being "not so clearly assertions of partnership claims" were Cates' allegations "that after destruction of the partnership businesses, defendants `boycotted Cates in the insurance industry ...,'" that "there was an effort to drive Cates individually out of the insurance business," and that there was a "conspiracy among the defendants and [other partners]." Id. at 1182 (emphasis in original).
The Court finds that a careful analysis of the Cates opinion supports the Plaintiffs' contention that they have standing as minority partners to assert the allegations set forth in their pleadings.
The Cates opinion makes it clear that, in a proper case one where the controlling partners, for improper, ulterior motives and not because of what they in good faith believe to be the best interests of the partnership, decline to sue on a valid, valuable partnership cause of action which it is advantageous to the partnership to pursue Texas law would afford some remedy to the minority partner or partnership interest owner other than merely a damage or accounting suit against the controlling partners, at least where the latter would not be reasonably effective to protect the substantial rights of the minority.
Id. at 1178 (emphasis in the original).
The Cates court outlined several possible remedies which might be available to such *452 a partner/plaintiff. The court suggested that the individual partner might maintain suit "either derivatively in the name of the partnerships, or for his percentage of such claims, or alternatively [might] ... have action on the case deferred until a receivership application could be acted on ... or the partnerships' winding up could be completed." Id. at 1180.
The Cates court, while declining to define precisely what sort of impropriety would authorize a minority partner to maintain a derivative suit or have the other alternative relief suggested above, stated that such relief would be authorized
at least where the controlling nonconsenting partners have conspired with the defendant third party in committing some material part of the wrongs complained of and have, in bad faith for their own personal interests and not with a view of the best interests of the partnerships, colluded with the third party to prevent the suit.
Id. at 1179.
The Plaintiffs in the instant case have clearly made such allegations. They have thus alleged the type of "exceptional circumstances," Id. at 1176, which would authorize an individual partner to sue on a partnership-related claim.
THE BANKRUPTCY ISSUE
If the case before us involved simply a suit by a minority partner, this Court would not hesitate to find that, under the facts in this case, the Fifth Circuit's Cates opinion grants the Partner/Plaintiffs standing to assert each partnership cause of action they have alleged. But this case is further complicated by the fact that RRL, the limited partnership of which Plaintiffs are partners, is currently involved in bankruptcy proceedings. While the Cates opinion holds that a minority partner may assert a claim that a controlling partner for improper motives refuses to pursue, it does not clarify whether those claims become individual claims or remain partnership claims, asserted by the Plaintiffs on behalf of the partnership. If the claims do in fact remain partnership claims, when the partnership is also, as it is here, the debtor in bankruptcy, those claims would be property of the estate, and Plaintiffs would be unable to assert them. See American National Bank of Austin v. MortgageAmerica Corp., 714 F.2d 1266 (5th Cir.1983). Only if the claims are Plaintiffs' individual causes of action may Plaintiffs assert them.
While Cates grants standing to sue under the circumstances alleged by the Partner/Plaintiffs, it does not provide a definitive answer to the question of whether suit must be on behalf of the partnership or may be pursued by Plaintiffs as individuals. Defendants direct the Court's attention to the Cates court's statement that
any claims for damages which Cates suffered by reason of diminution in value of his partnership interest, or his share of partnership income, or his salary or bonus from the partnerships or their businesses, by reason of breach of such agreements, or tortious interference with such businesses, or anticompetitive conduct interfering with or limiting or "taking over" such businesses or their activities, are in effect subsumed within the causes of action of the partnerships (footnote omitted) and do not afford Cates ... a separate, individual cause of action.
Cates, 756 F.2d at 1181 (emphasis added). Plaintiffs, however, point to the fact that the Cates court categorized certain claims as "not so clearly assertions of partnership claims." Among the claims so categorized are "allegations of conspiracy among the defendants and [the majority partners which] ... may suggest a wrongful interference with Cates' relations with the partnerships as such." Id. at 1182. It is clear that such claims could be asserted as partnership claims. The Cates court expressly suggested as a possible remedy a derivative suit in the name of the partnership. Id. at 1180. The Cates court did not expressly state that such claims could be asserted as individual claims. However, by characterizing such allegations as "not so clearly assertive of partnership claims," the Cates court suggested that such claims *453 may be asserted as an individual cause of action. Cates, 756 F.2d at 1182.
Because the Cates opinion does not resolve this matter, this Court has looked to other jurisdictions for further guidance. A similar fact pattern is found in Mannaberg v. Herbst, 45 N.Y.S.2d 197 (Sup.Ct.N.Y. County 1943), aff'd 267 App.Div. 818, 47 N.Y.S.2d 100, aff'd, 293 N.Y. 657, 56 N.E.2d 255 (1944). In Mannaberg, the plaintiff alleged that the defendant paid a secret consideration to his copartner, individually. In exchange for this consideration the copartner allegedly used false representations to induce the plaintiff to consent to the sale to defendant of corporate stock owned by the partnership. In holding that the plaintiff/partner could sue on his own behalf, the Mannaberg court stated that
where one partner and a third person by fraud or breach of fiduciary duty cause a disposition, waste, or diminution of partnership property under circumstances rendering the third person liable therefor, the act of the third party at least must be regarded ... as an individual wrong to each other partner for which each may recover his own damages.
Id. at 201 (emphasis added). A Wisconsin district court in Hauer v. Bankers Trust, New York Corp., 509 F.Supp. 168, 175 (E.D.Wis.1981), employed a narrower analysis. In Hauer, the court clearly distinguished between injury to a partnership and individual injuries such as disruption of the Plaintiff's relationship with the partnership.
Although the reasoning of the Mannaberg decision is persuasive, and has been cited with approval by the Second Circuit,[3] this Court does not find, based on the Cates decision, that the Fifth Circuit would permit Plaintiffs to assert claims related to partnership property as individual claims. Rather, it appears that the Fifth Circuit would adopt the analysis set forth in Hauer. As in Hauer, the Cates court appears to make a distinction between claims asserting damage to a partner's share of his or her partnership interest or contribution and claims alleging a wrongful interference with the partners relationship with the partnership and copartners. The former are properly viewed as partnership claims, while the latter may be characterized as individual claims.
The Court finds that the Partner/Plaintiffs' claims for conversion and damages for destruction of property, to the extent that those causes of action relate to money or property contributed by Plaintiffs to RRL, properly belong in the latter category, characterized in Cates as partnership claims. Although ordinarily Cates would permit partner/plaintiffs who assert collusion between their copartners and defendants to assert those claims, they must assert them on behalf of the partnership. Because the RRL partnership is in bankruptcy, these claims are property of the estate, and the Partner/Plaintiffs are precluded from asserting them. Such claims must therefore be dismissed. By contrast, the allegations of aiding and abetting breach of fiduciary duty and tortious interference are claims alleging an interference with the Partner/Plaintiffs relationship with their copartner and with the partnership and thus the Partner/Plaintiffs properly may assert them as individual claims.
The proper categorization of the Partner/Plaintiffs' RICO claims and common law fraud claims is not so clear.[4] Certainly, the RICO and fraud allegations, as alleged by Plaintiffs, would have resulted in diminution of the value of the Partner/Plaintiffs' contribution to the partnership. The claims, however, might also be construed as involving, at least as an end *454 result, the wrongful interference with Plaintiffs' relationship with the partnership. The Court therefore declines to dismiss these claims in their entirety, but only dismisses them as they relate to damage to the Partner/Plaintiffs' contribution to the partnership.[5]
CERTIFICATION FOR APPEAL
This Court finds that the standing issues raised in Defendants' Motion to Dismiss involve controlling questions of law as to which there is substantial ground for difference of opinion. Furthermore, the Court finds that resolution of these issues would materially advance this litigation. The Court, therefore, pursuant to 28 U.S.C. § 1292(b), certifies for interlocutory appeal the issue of Plaintiffs' standing to assert partnership-related claims. The Court, however, declines to stay further action in this case pending appeal.
In accord with the above findings, it is hereby
ORDERED that Defendants' Motion to Dismiss be, and is hereby, GRANTED to the extent that the claims of the Partner/Plaintiffs for conversion of their contribution to the partnership and damages for destruction of partnership property be, and are hereby, DISMISSED. It is further ORDERED that the Partner/Plaintiffs' RICO and common law fraud allegations be DISMISSED only to the extent that they relate to damage to the Partner/Plaintiff's contribution to the partnership. In all other regards Defendants' motion is DENIED.
NOTES
[1] Also pending is Plaintiffs' Motion to Strike Appendices to Defendants' July 1, 1986, Dismissal Motion. Plaintiffs assert that it is inappropriate for the Court to consider those exhibits in evaluating a Motion to Dismiss and that the exhibits have not been submitted in a form which would make them competent summary judgment evidence, should the Court view Defendants' motion as one for summary judgment. Because the Court has evaluated Defendants' Motion to Dismiss without recourse to Defendants' exhibits, Plaintiffs' motion is rendered moot. Nothing in this opinion, however, precludes Defendants from incorporating the exhibits through appropriate affidavits should Defendants choose to file a motion for summary judgment in the future.
[2] Because McMillan-Johns Exploration, Inc., asserts interests unassociated with RRL, its ability to maintain its claims in an individual capacity cannot be questioned. The following discussion therefore refers only to the claims of the Partner/Plaintiffs.
[3] See Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1075 n. 23, 1076 (2d Cir.1977).
[4] Defendants do not quarrel with the Partner/Plaintiffs' standing to maintain their security fraud claims as individuals. It is assumed therefore that, to the extent that the RICO and common law fraud claims state injury to Plaintiffs due to the alleged fraudulent inducement of Plaintiffs to enter the partnership and thus to purchase the alleged securities, the ability of Plaintiffs to assert the claims as individual causes of action is not disputed.
[5] The Court is of the opinion that an accounting will not be required in this action in order to compute damages. While the Mannaberg court suggested that an accounting might be necessary, in Mannaberg, unlike in the instant case, the plaintiffs were asserting causes of action that involved damage to their partnership property interest. Mannaberg, supra at 200. The instant case, following this order, will involve only the assertion of causes of action which allege wrongful interference with the partners relationship with the partnership and copartners. As such, the allegations are similar to those in Whitney v. Citibank, 782 F.2d 1106 (2d Cir.1986). Plaintiff Whitney, a partner in a limited partnership, brought action against, inter alia, Citibank based on allegations of his copartners' breach of fiduciary duty and the bank's inducement of and knowing participation in that breach. Id. at 1107. Although in Whitney an accounting was actually made because Whitney was also suing his copartners, the recovery against Citibank did not precisely reflect Whitney's partnership contribution. In upholding the damage award against Citibank in the face of Citibank's contention that the amount was speculative, the Second Circuit held: "When a difficulty faced in calculating damages is attributable to the defendant's misconduct, some uncertainty may be tolerated." Id. at 1118 (citations omitted).
This Court is, likewise, of the opinion that, should Defendants be found liable to Plaintiffs, damages can be fairly estimated without recourse to a partnership accounting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265394/ | 262 N.J. Super. 65 (1992)
619 A.2d 1047
ALEXANDRIA AT HILLSBOROUGH CONDOMINIUM ASSOCIATION, INC., PLAINTIFF,
v.
PAUL CICHOWICZ AND HELEN CICHOWICZ, DEFENDANTS.
Superior Court of New Jersey, Law Division Somerset County, Special Civil Part.
Decided November 30, 1992.
*66 Robert M. Purcell, Jr., for the plaintiff.
Arthur L. Skaar, Jr. for defendants (Skillman and Skaar, attorneys)
DILTS, J.S.C.
FINDINGS OF FACT
Trial was held on November 16, 1992.
The court finds that defendants, Paul and Helen Cichowicz ("Cichowicz") were owners of a condominium unit at Alexandria at Hillsborough. In April 1991 the defendants filed a Chapter 7 bankruptcy petition. On June 20, 1991 the trustee in bankruptcy filed a notice of proposed abandonment proposing to abandon his interest in defendants' condominium unit on the basis of it being of inconsequential value to the estate. The value of the condominium was listed at $65,000 and there were two secured liens, one in the amount of $60,000 and the other in excess of $11,500. In addition to these two secured liens, Alexandria at Hillsborough Condominium Association, Inc. ("Condominium Association") was listed as a lien holder in the amount of $3,421.70 for condominium assessment fees through and including June 1991. Total liens exceeded $75,000, and there was no equity in the condominium unit.
By June 30, 1991, defendants Cichowicz had abandoned the condominium unit. They did not occupy the premises nor did they rent them to any third party. They received no financial benefit whatsoever from the premises after June 30, 1991. The only action taken by the defendants was, upon the advice of their bankruptcy attorney, to pay approximately $100 per year to continue liability insurance coverage.
On August 19, 1991 an order discharging defendants Cichowicz was entered by the bankruptcy court under Chapter 7 of the bankruptcy act. It discharged defendants Cichowicz from all "dischargeable debts". It further declared that any judgment *67 entered in the past or in the future (other than in the bankruptcy court) shall be null and void as a determination of personal liability of defendants Cichowicz with respect to debts dischargeable under the bankruptcy act. The order further enjoined all creditors from pursuing those debts.
The court finds that the plaintiff Condominium Association released all personal liability claims for monthly condominium fees through the date of the bankruptcy order (August 1991) and is not pursuing a claim for those fees.
In this action plaintiff claims that defendants Cichowicz are personally liable for the monthly assessment fee from September 1, 1991 through November 1, 1992. The monthly fee is $173 per month for each month during this period, plus a late charge of $10 per month. In addition, the Association seeks one-third attorney's fees in accordance with the terms of the Master Deed. The total sum claimed due and owing is $2,745.00 for condominium fees and late charges from September 1, 1991 and $920 in attorney's fees. The total amount sought is $3,665.00.
In or about January 1992 a mortgage foreclosure action was filed by the first mortgage holder. The court finds that a judgment of foreclosure has been entered and that the Sheriff's Sale of the condominium unit is scheduled to take place on or about December 1, 1992. The court finds that defendants Cichowicz have not executed any surrender or release of their right of redemption to the foreclosed property nor transferred title to the property. The court further finds that defendants Cichowicz have taken no steps to exercise the right of redemption and plaintiff Paul Cichowicz testified that he does not intend to do so.
QUESTION PRESENTED
Whether a condominium owner who has been adjudged bankrupt and whose debts have been discharged remains personally liable for post-petition condominium association fees?
*68 CONCLUSIONS OF LAW
This is a question of first impression in the State of New Jersey. There is a split of authority among bankruptcy courts, some holding that the debtors' condominium association fees coming due after the bankruptcy order were discharged and others concluding that condominium fees were not discharged. This court concludes that the claim for condominium association fees for the period September 1991 through November 1992 was discharged in bankruptcy and that defendants Cichowicz have no personal liability for these fees.
The Condominium Association contends that it is entitled to collect assessments accruing after the date of the bankruptcy order and relies upon the bankruptcy court opinions of In re Strelsky, 46 B.R. 178 (Bankruptcy E.D.Va. 1985), In re Horton, 87 B.R. 650 (Bankruptcy D.Colo. 1987), Rink v. Timbers Homeowners Association, 87 B.R. 653 (Bankruptcy D.Colo. 1987), and In re Rosteck, 95 B.R. 558 (Bankruptcy N.D.Ill. 1988). In re Strelsky, supra, held that where a debtor's condominium was listed in the schedule of assets as having a market value significantly less than its encumbrances and/or the trustee's no asset report indicated that no property was administered in a Chapter 7 bankruptcy proceeding, and that the property was abandoned by the trustee to the debtor when the case was closed, that liability for post-petition condominium assessments fell upon the debtor and the debtor was personally liable for post-petition condominium assessments. In part this opinion was based upon the finding that the debtors continued to receive the benefit of living in the condominium and hence should as a matter of equity be liable for post-petition condominium fees. In re Horton, supra, held that the post-petition personal liability for condominium assessments continued because the debtor in that case continued to hold title to the premises when they could have "escaped liability" for the assessments by conveying the property to another, including the mortgage lender. Because the debtors chose to remain *69 entitled to the premises, they "thereby availed themselves of the benefits of the association's services" and that the "benefits of owning property go hand in hand with the burdens arising from ownership." Rink v. Timbers, supra, likewise holds that post-petition assessments were not discharged by bankruptcy.
In re Rosteck, supra, held that even though the debtors did not actually live in the condominium unit during the period in question, the debtors were nonetheless responsible for post-petition condominium assessment fees. After the abandonment of this asset by the bankruptcy trustee, until the time of the Sheriff's Sale, the property was in the control of the debtors. Although the court acknowledged that it was unclear from the record "what degree debtors enjoyed use and occupancy of the condominium unit, it is clear that the property was not conveyed back to the mortgagee and was still in the legal possession of the debtor. No one besides the debtor was entitled to use and enjoyment of Unit 166 during this period. Therefore, the proper party to bear the cost accrued incidental to condominium ownership is the debtor."
Further research by the court discloses, however, that the decision In re Rosteck, 95 B.R. 558 (Bankruptcy N.D.Ill. 1988) was vacated, and the bankruptcy court concluded that the debtor's obligation under pre-petition agreement is properly viewed as pre-petition and not post-petition, regardless of when the debt actually arose. In re Rosteck, 99 B.R. 400 (Bankruptcy N.D.Ill. 1989). The bankruptcy court held that the post-petition assessments were discharged by bankruptcy. This holding was affirmed in In the Matter of Rosteck, 899 F.2d 694 (7th Cir.1990).
Defendants Cichowicz in this matter rely upon the bankruptcy court holdings of Behrens v. Woodhaven Assn., 87 B.R. 971 (Bankruptcy N.D.Ill. 1988); In re Montoya, 95 B.R. 511 (Bankruptcy S.D.Ohio 1988); and In re Miller, 125 B.R. 441 (Bankruptcy W.D.Pa. 1991). In Behrens v. Woodhaven, supra, the court found that the association had obtained a default judgment *70 against the debtor for post-petition condominium association assessments. The court found the association in contempt for willful violation of the permanent discharge injunction through the post-discharge suit against debtors and ordered that the association obtain a vacation of all state court proceedings. The court found that the obligation of the debtors who owned the condominium property for assessments under the condominium agreement and bylaws was a pre-petition debt regardless of when the amounts due were assessed. The court held that the decision by the bankruptcy trustee to abandon the condominium asset should not be given any effect in the court's determination. The court found that the statute giving the trustee the power to abandon property was irrelevant to resolution of a dispute between the condominium association and the debtors. In re Montoya, supra, held that the debtor may "walk away" from personal liability for future condominium assessments when a discharge is granted pursuant to 11 U.S.C. Section 727(b) if the condominium association was properly scheduled as a creditor. In Montoya, supra at 513, the court found that:
"although the debtor retained a statutory right to redeem the property by payment of the amount of the judgment and costs prior to confirmation of the foreclosure sale pursuant to Ohio statutes, she had indicated surrender of that right at the time of her bankruptcy petition by filing her decision to surrender the unit, as set forth in the Statement of Intention filed at the commencement of her bankruptcy case. The debtor's occupancy of the unit subsequent to that time was temporary and was at the request of the purchasing mortgagee."
The court further found that the "policies underlying the fresh start, implemented by the grant of the discharge in bankruptcy, would be unacceptably compromised if the debtor's personal liability for condominium association dues continued after the date of her bankruptcy filing." The court held that the association continued to possess its lien rights against the unit but had no right to enforce personal liability against the debtor for post-petition assessment fees. In re Miller, supra, recognized the split of authority within the bankruptcy court. After reviewing the cases dealing with this issue, the court found that the *71 debtors relinquished ownership and were not occupying the condominium and would receive no future benefits from the association. The court found that any benefit bestowed upon the property once the foreclosure action commenced accrued to the benefit of the mortgage holder, not to the debtors. The court found the fact that the debtors were the owners of record of the property until the foreclosure proceeding took place to be irrelevant. For this reason, the court held that the association was not entitled to judgment for post-petition condominium assessment fees.
In this case the court finds that in June 1991 defendants Cichowicz vacated the premises and de facto abandoned all interest in the association and in the condominium unit. Although they continue to this date to be owners of record, the court concludes that defendants Cichowicz have received no benefit whatsoever from this ownership. The court concludes that because the Condominium Association was listed as a creditor in the bankruptcy petition for assessments, that the August 19, 1991 order discharged all personal liability for post-petition as well as pre-petition condominium assessments. The "fresh start" benefit of a bankruptcy discharge of obligation would be thwarted if the court were to find a continuing personal obligation for post-petition condominium assessments. Where there is no post-petition benefit to the bankrupt debtor, there is no personal liability for post-petition condominium assessments.
In the unlikely event that prior to the Sheriff's Sale, defendants Cichowicz decide to exercise their statutory right to redeem the property, they would redeem the property subject to the lien for the condominium assessments, which continues to be a valid lien against the property. Their right of redemption does not extinguish the Condominium Association's lien. Further, the conclusion that defendants have been discharged from personal liability does not mean that plaintiff was, or is, left without a remedy. See In re Cohen, 122 B.R. 755 (Bankruptcy *72 S.D.Cal. 1991) and In re Turner, 101 B.R. 751 (Bankruptcy D.Utah 1989).
Accordingly, an order will be entered dismissing the complaint with prejudice and without costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265398/ | 657 F.Supp. 1307 (1985)
SAFEWAY STORES, INCORPORATED
v.
SAFEWAY INSURANCE COMPANY.
No. 79-542-B.
United States District Court, M.D. Louisiana.
May 9, 1985.
*1308 *1309 W.S. McKenzie, T/A, Nancy C. Tyler, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., W. Robert Buxton, Robert H. Sloss, Pillsbury, Madison & Sutro, San Francisco, Cal., for plaintiff.
Victor A. Sachse, III, Breazeale, Sachse & Wilson, Baton Rouge, La., Jay G. McMains, Robert Parrillo, Michael J. O'Halloran, Parillo, Weiss & Moss, Chicago, Ill., for defendant.
POLOZOLA, District Judge:
Safeway Stores, Incorporated has filed this suit[1] seeking to enjoin Safeway Insurance Company from infringing its registered service mark "Safeway."[2] Safeway Insurance Company has denied any liability to the plaintiff and in addition, has filed a counterclaim which seeks injunctive and monetary relief.
I. Background of Dispute
This action was brought by Safeway Stores under the Lanham Act, 15 U.S.C. §§ 1051 et seq.,[3] and the anti-dilution statutes of the states of Florida and Illinois.[4] Safeway Stores contends that the use of its service mark "Safeway" by the defendant is likely to cause consumer confusion. The plaintiff also contends that it is entitled to injunctive relief under the anti-dilution statutes of Florida and Illinois because the use of its mark or trade name by the defendant creates a likelihood of injury to the plaintiff's business reputation and dilutes the distinctive quality of its mark or name even though there is no consumer confusion. Safeway Insurance Company contends that its use of the name Safeway is not a violation of the Lanham Act because it does not cause consumer confusion. Safeway Insurance also contends plaintiff's claim is barred by the doctrines of laches and abandonment. In addition, Safeway Insurance Company has filed six counterclaims against Safeway Stores. Five of these counterclaims were based on federal law and one was based on a Louisiana statute.[5] In its first counterclaim, Safeway Insurance contends that if the Court finds that there is likelihood of confusion if the name Safeway is used by both parties to this suit, then it is entitled to an injunction under federal commerce law barring Safeway Stores from using the name in those markets where Safeway Insurance adopted or used the name prior to Safeway Stores. The second counterclaim seeks cancellation of Safeway Stores' federal service mark because of alleged misrepresentations made to the United States Patent Office when the service mark was applied for in 1960-1961.[6] Safeway Insurance asserts a cause of action under 15 U.S.C. § 1120 in its third counterclaim[7] and seeks attorney's fees for defending this action in its fourth counterclaim.[8] Safeway Insurance Company's fifth counterclaim is based on 15 U.S.C. § 1125.
II. The Court's Decision
For reasons which follow the Court finds that the use of the name Safeway by Safeway *1310 Insurance Company is not likely to cause consumer confusion. The Court also finds no violation of the anti-dilution statutes of Florida and Illinois. Thus, the suit filed by Safeway Stores against Safeway Insurance must be dismissed with prejudice. The Court further finds that the five counterclaims asserted by Safeway Insurance are without merit and must also be dismissed with prejudice.
III. Findings of Fact
The Court now turns to a discussion of the facts and legal issues involved in this case.
A. Stipulated Facts
The parties have stipulated to the following facts in the pretrial order filed with the Court:[9]
Established Facts:
(A) Plaintiff, Safeway Stores, Incorporated, is a Maryland corporation with its principal place of business in California.
(B) Defendant, Safeway Insurance Company, is an Illinois insurance company with its principal place of business in Illinois.
(C) Defendant is in the insurance business presently qualified to do business in either as an admitted insuror [sic] or surplus line carrier in the states of Arizona, Florida, Illinois, Louisiana, Texas and Nevada.
(D) Defendant, Safeway Insurance Company, is presently writing insurance business in the states of Illinois, Florida, and Louisiana.
(E) Plaintiff, Safeway Stores, Incorporated, has registered the service mark Safeway with the United States Patent and Trademark Office as service mark registration No. 721,716.
(F) Plaintiff has registered its mark under the laws of the states of Washington, Louisiana, Arizona, Florida, and Nevada, among others.
(G) Plaintiff is a supermarket chain selling groceries and other goods and services based in Oakland, California, maintaining at least one retail store in the following states:
Alaska, Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, Hawaii, Idaho, Iowa, Kansas, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.
Plaintiff also has locations in Canada and other foreign countries.
(H) Defendant is an insurance company selling auto casualty insurance in the State of Illinois. Defendant also sells auto casualty insurance in the States of Florida and Louisiana. Defendant sells only as a surplus line insurer in Louisiana.
(I) Plaintiff does not operate any store or maintain any office in the State of Illinois. Plaintiff has no present plans to expand in the State of Illinois.
(J) Plaintiff presently has no retail stores in the State of Florida. Plaintiff does maintain an office for the purpose of purchasing produce in the State of Florida.
(K) Plaintiff has 11 stores in the State of Louisiana. These stores are located in or near Monroe (4), West Monroe (2), Bastrop (2), Ruston (2) and Minden (1).
(L) In Louisiana, defendant sells through an employee located in Lafayette, Louisiana.
(M) In Florida, defendant sells through an independent agent located in Miami, Florida.
(N) In Illinois, defendant sells through independent agents in various locations.
(O) Plaintiff adopted the name "Safeway" in 1925 and began using it in 1925 or 1926.
(P) Safeway Mutual Insurance Company was organized, incorporated and licensed by the Illinois Department of Insurance as a mutual company on August 31, 1959.
(Q) The assets of Safeway Mutual Insurance Company were sold on December *1311 28, 1962, and its name changed to Trans-World Mutual Insurance Company.
(R) Safeway Insurance Company was chartered in Illinois as a new company on August 28, 1962.
(S) William Parrillo was a principal in both Safeway Mutual Insurance Company and Safeway Insurance Company.
(T) At the present time the defendant conducts no business under the name "Safeway" other than the sale of auto insurance.
(U) Plaintiff has no present plans to write or market insurance under its name to the public, and defendant has no present intention to enter the business of retail grocery or drug sales.
B. The Court's Findings of Facts
In addition to the stipulated facts set forth above, the Court makes the following additional findings of fact:
Safeway Stores is a Maryland corporation with its principal place of business in Oakland, California. It is one of the largest food retailers in the United States. The plaintiff sells all goods normally expected of a grocery store including food items, non-prescription drugs, food accessories, some personal items and a variety of other merchandise. In its Super Store operation, plaintiff has a pharmacy which sells prescription drugs and other items. Plaintiff has approximately 1,900 retail stores in 25 states, including Louisiana, Arizona, Nevada, Washington, Mississippi and Texas.[10] There are no Safeway Stores in Illinois or Florida. All of the plaintiff's stores display the mark "Safeway" and the associated large red "S" logo.[11] Safeway Stores also has approximately 2,000 truck tractors and over 4,000 truck trailers, all of which bear the name and logo of Safeway Stores. These trucks are driven millions of miles per year, particularly in Texas, Arizona, Mississippi, Nevada, Washington and Washington, D.C.[12]
Safeway Stores had an annual advertising budget of $128 million in 1982, most of which was spent on radio, newspaper and television advertising. All advertising features the name "Safeway" or its logo. Some of its advertising features only the "S" logo as is depicted in plaintiff's exhibit 43(B). The name and logo are also set forth on two billion grocery bags per year. A large part of plaintiff's advertising budget is spent on co-op advertising,[13] and much of plaintiff's advertising is heavily product oriented.
The plaintiff maintains large stores at convenient locations to serve its customers. The stores are prominently identified as Safeway Stores.
Safeway Stores does not sell any type of insurance at its stores and as of the time the suit had not decided on any firm plans to sell insurance in the future through its retail grocery outlets.
Safeway Insurance is an Illinois corporation with its principal place of business in Chicago. It is exclusively in the business of selling automobile insurance, including casualty, collision, comprehensive and uninsured motorist's coverage. At the time of the trial, Safeway Insurance Company was qualified to do business in Illinois, Louisiana,[14] Florida, Texas, Arizona, and Nevada.[15]*1312 All of defendant's insurance sales are conducted through independent insurance agencies or brokers. No sales are made directly to the public by Safeway Insurance Company's employees or managing general agents.[16] The defendant has no advertising budget, and does no advertising. Safeway Insurance Company attempts to promote and market its insurance packages to various independent agents. The defendant has a home office in Chicago and small offices in Louisiana and Texas. These offices are properly marked with the Safeway Insurance Company sign.[17] Defendant does no outdoor advertising. Because of its marketing approach, which differs substantially from the plaintiff's marketing approach, the defendant is not concerned with the convenience and location of its offices.[18]
Safeway Insurance Company is not in the business of selling groceries and does not intend to enter the grocery business.
Safeway Stores has used the name "Safeway" since March 17, 1925 and has been qualified to do business under the "Safeway" name in every state in the United States since the 1940's. Safeway Stores registered "Safeway" as a service mark in the United States Patent Office on September 16, 1961.[19] In 1945, Safeway Stores began to register "Safeway" as a trademark on various products in the United States Patent Office.[20] Safeway Stores also registered its name under trademark registration statutes of Louisiana and Florida, among other states.
Safeway Insurance Company through its predecessor began using the words "safe" and "way" in 1959. The words "safe in every way" were also used with the defendant's name and are included on its stationery.[21] Safeway Insurance Company was chartered as a new company in Illinois on August 28, 1962. It continues to use the slogan "safe in every way" on its stationery.
The Court fails to find any fraud on the part of Safeway Stores in registering its service mark. The affidavit submitted by the plaintiff pursuant to 15 U.S.C. § 1051(a)(1) stated that no other person or company had the right to use the mark in commerce in any form likely to cause confusion, mistake or to deceive. The Court has concluded in this case that the use of the name by Safeway Stores and Safeway Insurance would not likely cause confusion. The Court finds that Safeway Stores acted in good faith and properly and legitimately obtained its service mark. This conclusion by the Court does not mean that the Court has found that Safeway Stores was the first to use the combination of the English words "safe" and "way" in connection with its operation in interstate commerce. The word "Safeway" is a combination of two English words, "safe" and "way." It is reasonable for the Court to conclude that the word "Safeway" does not in and of itself particularly connote anything to do *1313 with groceries per se. Finally, it is clear that the two companies involved in this case, one in the retail grocery business and the other in the insurance business, are not involved in the same or a related business.
IV. Likelihood of Confusion
For the plaintiff to prevail in this trademark infringement action, it must first be shown that plaintiff has "a protectable property right in the name it seeks to defend from use by others." Bank of Texas v. Commerce Southwest, 741 F.2d 785, 786 (5th Cir.1984); Security Center v. First National Security Centers, 750 F.2d 1295, 1298 (5th Cir.1985). Once plaintiff has established its mark's protectability, it must demonstrate infringement, i.e., that use of its mark by the defendant "was likely to create confusion in the mind of the ordinary consumer as to the source, affiliation, or sponsorship of [the plaintiff's] service and product." Conan Properties v. Conans Pizza, 752 F.2d 145, 149 (5th Cir.1985); Security Center, 750 F.2d at 1298.[22] Numerous factors must be considered by the Court in determining whether a likelihood of confusion exists including: (1) the type of trademark alleged to have been infringed; (2) the similarity of design between the two marks; (3) similarity of the products or services; (4) the identity of the retail outlets and purchasers; (5) the identity of the advertising medium utilized; (6) the defendant's intent; (7) evidence of actual confusion;[23] (8) degree of care exercised by purchasers;[24] and, (9) diversity of products or services offered by the parties.[25] No one of the factors set forth above is dispositive.[26] Likelihood of confusion is a question of fact to be determined by the trial court. Falcon Rice Mill, 725 F.2d at 344; Sun Banks of Florida v. Sun Federal Savings & Loan Association, 651 F.2d 311, 314 (5th Cir.1981); Amstar Corp. v. Domino's Pizza, 615 F.2d 252, 258 (5th Cir.1980), cert. denied 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980).
1. Type of Mark
Whether plaintiff's mark meets the threshold of protectability depends upon the category of distinctiveness into which it fits. Four categories of marks have been recognized in the jurisprudence: generic, descriptive, suggestive and fanciful. A generic mark is one which constitutes the common descriptive name of a product or service. Such a mark is considered weak and is given no protection by the law.[27] At the opposite end of the spectrum is the fanciful mark, which is a mark which is "patently distinctive to consumers. It bears no relationship to the products or services to which it applies, but it readily identifies the producer."[28] Such a mark is considered strong and is widely protected.[29]
*1314 Somewhere in between the above marks fall those marks which are suggestive or descriptive. A descriptive mark is one which merely describes the qualities or characteristics of a product or service and is protectable only if it has acquired a secondary meaning.[30] A suggestive mark, one which "suggests ... a characteristic of the goods or services and requires an effort of the imagination by the consumer," is protectable without a showing of secondary meaning.[31]
The name "Safeway" is obviously neither fanciful nor generic. Furthermore, the words "safe" and "way" do not merely describe the characteristics of either groceries or insurance. Thus, the Court finds that plaintiff's mark is suggestive and, therefore, protectable.
The Court must now determine whether there has been an infringement of plaintiff's trademark. After full consideration of the evidence presented in this case and the jurisprudence summarized above, this Court finds that defendant's use of the mark "Safeway Insurance Company" presents no likelihood of confusion.
As noted above, the mark "Safeway" is a suggestive mark. Such a mark is not entitled to absolute protection as a fanciful mark would be. The amount of protection a mark is to receive is dependent upon the strength of the mark. In Amstar, the Fifth Circuit noted that the amount of third party use of the mark should be given considerable weight in determining its strength and the amount of protection which should be afforded. A weak mark given extensive third party use will not be protected outside the uses to which it is already put. Amstar, 615 F.2d at 259-60.
Evidence presented during the trial revealed a widespread use of the name "Safeway." Plaintiff's own enforcement files showed such uses as Safeway Insurance Agency and Safeway Finance Company,[32] while various telephone directories introduced by the defendant showed hundreds of uses of the name "Safeway." Consequently, plaintiff's mark should be given only limited protection outside the retail grocery arena.
2. Similarity of Design
"The similarity of design is determined by considering the overall impression created by the mark as a whole rather than simply comparing individual features of the mark." Louisiana World Exposition v. Logue, 746 F.2d 1033, 1041 (5th Cir.1984). Thus, it is necessary to consider the full names of the parties to determine whether the defendant's name invites or avoids confusion. Security Center, 750 F.2d at 1302; Sun Banks, 651 F.2d at 317-18; Amstar, 615 F.2d at 261.
In this case the full name of the plaintiff is "Safeway Stores, Inc.," but plaintiff's primary emphasis is now on its logo, a "soft square s" enclosed in a circle, with a lesser emphasis on the name "Safeway." Where the word "Safeway" is used by the plaintiff, it is used alone, i.e., without the words "Stores, Inc." The defendant, on the other hand, always uses its full name, "Safeway Insurance Company," usually in conjunction with its logo, a block letter "s" on a typical insurance-type shield and its slogan "Safe in Every Way."[33] In Security Center, the court held that there was no confusion between the names "Security Center, Ltd." and "First National Security Centers" because the prefixed words "First National" minimized any potential confusion. Similarly, in this case the suffixed *1315 words "Insurance Company" differentiate defendant's mark from that of plaintiff and thus minimizes any potential confusion.
3. Similarity of Products
The greater the similarity of products, the greater the potential for "the public's mistaken assumption of connexity between the providers." Sun Banks, 651 F.2d at 318. Where the products are dissimilar, it is appropriate to consider the possibility that one party will expand its line to include a similar product. Falcon Rice Mill, 725 F.2d at 345 n. 9; AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 354 (9th Cir. 1979). In this case, the plaintiff sells groceries[34] and the defendant sells insurance. The Court finds no similarity whatsoever between plaintiff's product and defendant's service.[35] Defendant's expert, Dr. Ronald Bush, testified that there is no product affinity, i.e., association in the mind of the consuming public, between groceries and insurance. Further, there was no evidence presented that plaintiff intends to enter the insurance business or that defendant intends to enter the grocery business. Thus, this factor points toward a lack of confusion between plaintiff's and defendant's marks.
4. Identity of Retail Outlets and Purchasers
Another factor to be used in the determination of whether there is the likelihood of confusion is the identity of the retail outlets or service facilities and the identity of the purchasers of the product or services. Sun Banks, 651 F.2d at 318; Amstar, 615 F.2d at 262; Roto-Rooter Corp. v. O'Neal, 513 F.2d 44, 45 (5th Cir.1975); American Foods v. Golden Flake, Inc., 312 F.2d 619, 624 (5th Cir.1963). These two criteria shall be discussed separately.
In this case, the parties have substantially different retail outlets. The plaintiff sells in stores directly to the public whereas the defendant sells to independent insurance brokers who thereafter sell to the public. Plaintiff is concerned about convenience in the location of its stores, while defendant is not. In the case of similar products, it has been held that the "inability to compare the products side by side ... may increase the likelihood of confusion." Sun-Fun Products v. Suntan Research & Development, 656 F.2d 186, 192 (5th Cir. 1981); Louisiana World Exposition, 746 F.2d at 1041. However, in those cases where there is little similarity in products, as here, the lack of the identity in the method in which the ultimate consumer gets the product is viewed as decreasing the likelihood of confusion. Amstar, 615 F.2d at 262.
The Court also finds that the predominant purchasers of the plaintiff's products and the defendant's products are dissimilar. Based upon expert testimony presented at the trial, the Court finds that: (1) the predominant purchasers of groceries are females, aged 20-50 and (2) the predominant purchasers of the defendant's insurance are insurance agents or males. This dissimilarity in the groups that purchase the parties' products tends to decrease the likelihood of confusion. Armco v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159; Sun Banks, 651 F.2d at 318; Amstar, 615 F.2d at 262.
5. Identity of Advertising Media Utilized
The similarity of the advertising media used to promote the products of the parties is a factor to be considered in determining the likelihood of confusion because "[t]he greater the similarity in the campaigns, the greater the likelihood of confusion." Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500, 506 (5th Cir.1980). In the present case, the plaintiff has established that it *1316 spends substantial revenue in advertising.[36] The plaintiff advertises in regional magazines, local and regional television as well as local newspapers using a form of advertising called "co-op" advertising. The defendant, on the other hand, does very little advertising.[37] It relies, instead, upon its managing general agents to promote and market automobile insurance packages to independent agents.[38] This dissimilarity in promoting the parties' products tends to negate the possibility of confusion. Sun Banks, 651 F.2d at 318; Amstar, 615 F.2d at 262; American Foods, 312 F.2d at 624.
6. Defendant's Intent
The intent of the defendant in adopting the name "Safeway" is critical to the analysis of the likelihood of confusion. If the name was adopted with the intent to derive benefit from the reputation of the plaintiff, then the intent alone "`may be sufficient to justify the inference that there is confusing similarity'." Amstar, 615 F.2d at 263, quoting Restatement of Torts § 729, Comment f (1938). There must be evidence, however, that the defendant sought to capitalize on the plaintiff's reputation, Sun Banks, 651 F.2d at 318, and there must be an attempt to "pass off" the defendant's goods as those of the plaintiff. Amstar, 615 F.2d at 263. Intent to deceive or to profit from confusion due to the similarity may be inferred from acts of the defendant. Falcon Rice, 725 F.2d at 346.[39] In the present case, there was no evidence presented of the defendant's intent to pass its product off as the plaintiff's product. The plaintiff attempts to equate the defendant's knowledge[40] of the use of the name "Safeway" by the plaintiff with the intent to capitalize on another's reputation. Bad faith is not established by showing that the defendant knew or should have known that another was using this name, particularly in such unrelated fields as automobile insurance and groceries.[41]
7. Actual Confusion
Although evidence of actual confusion is not a prerequisite to a finding that there is a likelihood of confusion,[42] it is, however, the best evidence of the likelihood of confusion. Falcon Rice, 725 F.2d at 345, quoting Chevron Chemical Co. v. Voluntary Purchasing Groups, 659 F.2d at 704 (5th Cir.1981). In fact, a sufficient demonstration of actual confusion could sustain a finding of the likelihood of confusion even in the absence of other proof. Falcon Rice, 725 F.2d at 345.[43] However, the Fifth Circuit has given varying weight to evidence of actual confusion depending upon the type of person confused and the degree of such confusion.[44]
*1317 The evidence presented in this case is insufficient to establish that there is actual confusion among the parties' customers as to the source of the parties' products. The evidence of actual incidents of confusion[45] demonstrate isolated incidents of uncertainty as to whether there was a relationship between the plaintiff's and defendant's businesses. The number of transactions that have occurred since the defendant began using the name "Safeway" in 1962[46] make the amount of this past confusion negligible. In Sun Banks, the Fifth Circuit gave little weight to evidence of confusion of 15 individuals over a three year period. 651 F.2d at 319. Similarly, in Amstar, 615 F.2d at 263, the Court found that only three instances of actual confusion after nearly 15 years raised a presumption against the likelihood of confusion in the future. 615 F.2d at 263.
In addition to the evidence of the isolated incidents of confusion just discussed, the plaintiff has submitted a survey conducted by the Strategy Research Corporation of Miami, Florida. Survey evidence is admissible to demonstrate the possibility of the likelihood of confusion. See Exxon, 628 F.2d at 506-07; Amstar, 615 F.2d at 263-64; Holiday Inns v. Holiday Out in America, 481 F.2d 445, 447 (5th Cir.1973). The survey, patterned on the one submitted in Exxon, demonstrated that 70-75% of the individuals surveyed associated Safeway Insurance's name and logo with Safeway Grocery Stores in those cities where the plaintiff operated stores and 7-20% association in those cities where the plaintiff has never operated a store. While the results of this survey may indicate an elevated confusion level, there are defects in the survey which greatly reduce its probative value.
When analyzing the results of a survey to determine the probative value to give to a survey that has been admitted into evidence, the Court must first determine if the proper target universe has been selected. King-Size, Inc. v. Frank's King Size Clothes, 547 F.Supp. 1138, 1157-58 (S.D.Tex.1982). For a target universe to be appropriate, it must consist of individuals whose opinions are relevant to the present litigation. Amstar, 615 F.2d at 264. Therefore, for a universe to be proper it must include what is termed "a fair sampling" of people most likely to purchase the defendant's product. Exxon, 628 F.2d at 507. In the survey conducted on behalf of the plaintiff, it is difficult to ascertain what the target universe of the survey was, i.e., to what population group were the results generated by the survey to be generalized. The plaintiff's survey included licensed drivers, 50% male and 50% female, with some random mixture regarding age and occupation, who were interviewed at two shopping centers in seven different cities. The questions raised by the survey are whether the results generated are to be generalized to all licensed drivers, to licensed drivers in the particular localities where the surveys were taken,[47] or to licensed drivers who shop at malls. In any event, the Court has difficulty in accepting "licensed drivers", the most comprehensive of the possible target universes, as a proper universe. Licensed drivers are not necessarily the purchasers of automobile insurance, a group whose opinions are relevant to this litigation. The survey in this case, as was previously mentioned, was patterned after the one submitted in Exxon. In that case, the Fifth Circuit accepted *1318 licensed drivers as a universe "not perfect" but "close enough." Exxon, 628 F.2d at 507. The present litigation, however, can be distinguished. In Exxon, the products in question were automotive supplies including gasoline and oil, which all licensed drivers at one time or another would probably have to purchase. However, in the present case, the purchase of automobile insurance is not necessarily the task of every licensed driver. In fact, there is evidence in the record that the predominant purchaser of automobile insurance is male. Fifty percent of the people interviewed for this survey were female, who, according to other evidence presented, are the predominant purchasers of plaintiff's products. In Amstar, the Court chastized a survey where the universe tested was comprised of individuals who purchased the plaintiff's products. In this case, as in Amstar, fifty percent of those interviewed "would have been repeatedly exposed to plaintiff's mark, but would have had little, if any, exposure to defendants' mark." Amstar, 615 F.2d at 264. In addition, 27.8% of those interviewed were under the age of 25, which could have included drivers as young as 15 or 16.[48] In short, the Court finds that plaintiff's survey does not present "any meaningful evidence of likelihood of confusion" and is "not probative of the presence or absence of confusion." Amstar, 615 F.2d at 264.
The Court, therefore, concludes that plaintiff's survey, though patterned after the survey accepted by the Fifth Circuit in Exxon, is entitled to little weight because the wrong universe was tested. After reviewing all of the evidence in this case, the Court finds that the isolated incidents of confusion previously discussed and the defective survey are insufficient evidence for this Court to find that there is actual confusion regarding the Safeway service mark.
8. Degree of Care in Making the Purchase
Another factor to consider in determining the likelihood of confusion is the degree of care and diligence of the buyer in making the purchase. Falcon Rice Mill, 725 F.2d at 345 n. 9; Armco, 693 F.2d at 1160-61. If the products are inexpensive or "impulse" items, the purchaser will normally expend less care in shopping for and selecting such products and, therefore, there would be an increase in the risk of confusion. Sun Fun Products, 656 F.2d at 191-92; and Security Centers, 750 F.2d at 1302 n. 9. Automobile insurance is a serious and, in many instances, a costly purchase. Potential customers would be more likely to investigate thoroughly before making such a purchase, thereby reducing the likelihood that such customers would be misled by the similarity of the names of the plaintiff's and defendant's companies. Furthermore, as was previously noted in this case, defendant's manner of selling its insurance through independent agents and its lack of advertising reduces substantially the risk of confusion between Safeway Stores and Safeway Insurance Company.
9. Diversification
The last factor to be considered by the Court is the extent to which the plaintiff's company has diversified. Armco, 693 F.2d at 1161. Diversification would make it more likely that the non-diversified company's products would be associated with the diversified company, even if the two companies were not in direct competition. Armco, 693 F.2d at 1161. No evidence as to the plaintiff's diversification outside of the field of groceries was presented. The defendant's business is limited to insurance. Therefore, the Court finds that this lack of diversification also weighs heavily in favor of finding no likelihood of confusion.
V. Dilution
The plaintiff also contends that it is entitled to injunctive relief under the anti-dilution statutes of Florida and Illinois[49]*1319 because the use of its mark or trade name by the defendant creates a likelihood of injury to the plaintiff's business reputation and dilutes the distinctive quality of its mark or name even though there is no consumer confusion. These anti-dilution statutes protect against dilution of the distinct quality of plaintiff's trademark even in the absence of competition between the parties or confusion as to the source of goods or services. Dilution occurs "where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user's mark with the possible future result that a strong mark may become a weak mark." Holiday Inns, 481 F.2d at 450; Amstar, 615 F.2d at 265. The concept is not applicable in this situation, however, because it has been determined that the marks themselves are not confusing, defendant's use of the name Safeway Insurance Company will not mislead or confuse the public, and will not cause plaintiff's mark to become a weak mark. While plaintiff is entitled to protection from other users of the name "Safeway" in the grocery or related fields, it is not entitled to the same protection in unrelated fields. Plaintiff does not operate any stores in Illinois and does not have retail stores selling items in Florida. Therefore, the Court finds that plaintiff's claims under the Florida and Illinois anti-dilution statutes are without merit. See Abner's Beef House Corp. v. Abner's International, 227 So.2d 865 (Fla.1969); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972).
VI. Evidentiary Rulings
During the course of the trial, the Court took under advisement several rulings on evidentiary matters.[50] The Court finds that the following exhibits are relevant to this action and should be admitted into evidence:[51] P-3, P-4, P-10, P-50-1 and P-50-2-6, and P-53-A-G,[52] D-4 and D-31. The weight given to each of these exhibits is inherent in the facts previously found by the Court. The Court did not rely on or quote from those portions of the depositions referred to in footnote 50. Therefore, the Court finds they are not relevant and hereby sustains the plaintiff's objection thereto.
VII. Conclusion
Plaintiff has failed to prove a violation of the Lanham Trade-Mark Act and the anti-dilution statutes of Illinois and Florida. Thus, plaintiff's suit must be dismissed with prejudice. The defendant has failed to prove its counterclaims asserted against the plaintiff. Thus, defendant's counterclaims must be dismissed with prejudice. The Court notes in closing that all of the claims, contentions and defenses raised by all parties have been considered by the Court whether or not specifically mentioned in this opinion.
Therefore:
IT IS ORDERED that the suit filed by Safeway Stores, Inc. against Safeway Insurance Company be, and it is hereby DISMISSED with prejudice.
IT IS FURTHER ORDERED that the counterclaims filed by Safeway Insurance Company against Safeway Stores, Inc. be, and each is hereby DISMISSED with prejudice.
Judgment shall be entered accordingly.
*1320 APPENDIX
*1321
*1322
NOTES
[1] This Court has jurisdiction under 28 U.S.C. § 1332, § 1338 and 15 U.S.C. § 1121.
[2] Plaintiff dismissed its claim for monetary damages prior to trial.
[3] Safeway Stores seeks relief under 15 U.S.C. § 1114(1) and Section 1125(a). Although the Safeway Insurance contends that plaintiff failed to allege a violation of Section 1125(a), plaintiff's trial brief specifically urges a violation of this section. Therefore, the Court will consider plaintiff's claim under Section 1125(a). These statutes will be set forth in pertinent part later in this opinion.
[4] Fla. Stat. § 495.151 and Ill.Ann.Stat. ch. 140, ¶ 22, § 15 (Smith-Hurd Supp.1984).
[5] Safeway Insurance Company has dismissed its counterclaim filed under the Louisiana Unfair Trade Practices Act.
[6] This claim is brought under 15 U.S.C. § 1064(c).
[7] Safeway Insurance contends that the alleged false and fraudulent facts which dictate cancellation of Safeway Store's registration entitled it to recover on its counterclaim under § 1120.
[8] The claim for attorney's fees is based upon 15 U.S.C. § 1117.
[9] See document number 82 in the pleadings, pages 6-8.
[10] There are approximately eleven Safeway Stores in Louisiana. Most of these stores are located in the northern part of the state. See stipulated fact K above.
[11] Copies of exhibits depicting the name and logo of Safeway Stores and Safeway Insurance Company are set forth in the appendix to this opinion. See also: plaintiff's exhibits 11, 13A, 13B, 13C, 13D, 37 and 43(b) and defendant's exhibit 2.
[12] Safeway trucks also go to Florida, Louisiana, Illinois, Alabama and Georgia, but not as frequently because most of the trucking in these states is done by hired trucks.
[13] According to the testimony, co-op advertising, in the retail grocery market is a process in which manufacturers of various grocery and related products will participate in the cost of advertising because the advertisement and sale of the product works to the mutual benefit of both the retailer and the manufacturer.
[14] Safeway Insurance Company sells insurance only as a surplus line insurer in Louisiana.
[15] Applications have been filed on behalf of Safeway Insurance Company to do business in Mississippi, Alabama and Georgia. The state of California refused to allow Safeway Insurance Company to conduct business in California after Safeway Stores objected. The defendant also withdrew its request to do business in Washington after plaintiff filed suit there.
[16] It is possible that an isolated sale was made to the public, but the defendant's sales policy is to work through independent agents and brokers. In Illinois, defendant sells through independent agents and brokers, while in Florida, it sells insurance through a managing general agent. Safeway Insurance has its own employees in Louisiana and Texas, whose function is to promote defendant's insurance to independent agents who sell to the public.
[17] A copy of the logo and a sample of Safeway Insurance Company's stationery is set forth in the appendix. See note 10, supra.
[18] The plaintiff uses a "pull strategy" and the defendant a "push strategy" in their marketing approaches. In the former, advertising is directed to the public, while in the latter, there is no advertising directed to the public. Incentives are given to the people selling the insurance to push defendant's insurance.
[19] The service mark registration is for "retail grocery services."
[20] Plaintiff owns over forty separate trademark registrations of "Safeway" on a variety of goods. The red "S" logo also appears on these goods.
[21] See notes 10 and 17, supra.
[22] Unless protectability is shown, the question of likelihood of confusion is irrelevant. Security Center v. First Nat'l Sec. Center, 750 F.2d 1295, 1298 (5th Cir.1985); Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d 417, 425 (5th Cir.1984).
[23] Conan Properties v. Conans Pizza, 752 F.2d 145, 149 (5th Cir.1985); Armco v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159 (5th Cir. 1982); Roto-Rooter Corp. v. O'Neal, 513 F.2d 44, 45 (5th Cir.1975).
[24] Falcon Rice Mill v. Community Rice Mill, 725 F.2d 336, 345 n. 9 (5th Cir.1984); Armco v. Armco Burglar Alarm Co., 693 F.2d 1155, 1160-61 (5th Cir.1982).
[25] Armco v. Armco Burglar Alarm Co., 693 F.2d 1155, 1161 (5th Cir.1982).
[26] Conan Properties v. Conans Pizza, 752 F.2d 145, 150 (5th Cir.1985); Falcon Rice Mill v. Community Rice Mill, 725 F.2d 336, 345 n. 9 (5th Cir.1984); Armco v. Armco Burglar Alarm Co., 693 F.2d 1155, 1160 (5th Cir.1982). In Falcon, the court noted: "These factors may not be relevant in every case.... The weight to be given to the various factors is a matter for the factfinder[.]" 725 F.2d at 345 n. 9.
[27] Park 'N fly v. Dollar Park and Fly, 469 U.S. 189, 105 S.Ct. 658, 661-62, 83 L.Ed.2d 582 (1985). A generic mark has been described as one which "any dunce could come up with." Security Center v. First Nat'l Sec. Center, 750 F.2d 1295, 1299 (5th Cir.1985).
[28] Louisiana World Expo. v. Logue, 746 F.2d 1033, 1040 (5th Cir.1984).
[29] Amstar Corp. v. Domino's Pizza, 615 F.2d 252, 259 (5th Cir.1980).
[30] Park 'N Fly v. Dollar Park and Fly, 469 U.S. 189, 105 S.Ct. 658, 662, 83 L.Ed.2d 582 (1985).
[31] Vision Center v. Opticks, Inc. 596 F.2d 111, 115-16 (5th Cir.1979); Security Center v. First Nat'l Sec. Center, 750 F.2d 1295, 1298 (5th Cir. 1985).
[32] It is interesting to note that there was no evidence presented to show that action has been taken by the plaintiff against Safeway Finance or Safeway Insurance Agency.
[33] Potential confusion between the two logos using the letters is not an issue in this case. The plaintiff, in its complaint, does not seek to enjoin the use of defendant's logo, and no evidence relative to confusion caused by the logos was introduced.
[34] Plaintiff also cashes checks, a function closely connected with the sale of groceries. Additionally, in some areas plaintiff sells money orders, collects utility bills and houses the automated teller machines of local banks. At present, however, all the plaintiff's stores are primarily grocery stores.
[35] In Amstar Corp. v. Domino's Pizza, 615 F.2d 252, 261 (5th Cir.1980), the court noted that the only thing that plaintiff's product (sugar) and defendant's product (pizza) had in common was that they were both edible. Even that connexity does not exist in the instant case.
[36] The plaintiff spent approximately $128 million on advertising in 1982.
[37] The plaintiff contends that this should weigh heavily to indicate confusion because the defendant has built up no good will on its own and is, therefore, using the extensive advertising of the plaintiff to its benefit. Although there is support for this contention in Louisiana World Expo. v. Logue, 746 F.2d 1033, 1041 (5th Cir. 1984), where the defendant did not advertise but "benefitted from the world wide advertising campaign put on by the Plaintiff," the Louisiana World Exposition case may be distinguished by a number of factors including (1) the products (World Exposition souvenirs) themselves were very similar and (2) the defendant admitted that his intent was to earn income by identifying his products with the fair sponsored by the plaintiff.
[38] See notes 16 & 18, supra.
[39] See also Chevron Chemical Co. v. Voluntary Purchasing Groups, 659 F.2d 695, 703-04 (5th Cir.1981).
[40] Actual or constructive knowledge due to the registration of the service mark by plaintiff.
[41] See Amstar Corp. v. Domino's Pizza, 615 F.2d 252, 263 (5th Cir.1980), where the defendant admitted that he was aware of "Domino" sugar at the time he picked the logo for his pizzeria and the Fifth Circuit found that this did not establish the requisite intent factor.
[42] Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500, 506 (5th Cir.1980); Roto-Rooter Corp. v. O'Neal, 513 F.2d 44, 45 (5th Cir.1975).
[43] See also Frisch's Restaurants v. Elby's Big Boy, 670 F.2d 642, 648 n. 5 (6th Cir.1982), cert. denied 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982).
[44] For instance, if such confusion is short lived or if it is the confusion of persons casually acquainted with the business, then such evidence is entitled to little weight. Armstrong Cork Co. v. World Carpets, 597 F.2d 496, 506 (5th Cir.1979). On the other hand, the confusion of actual customers of the business has been deemed to be worthy of substantial weight. Sun Banks of Fla. v. Sun Fed. Savings & Loan Ass'n, 651 F.2d 311, 319 (5th Cir.1981).
[45] This evidence may be summarized as follows: An attorney wrote a letter to Safeway Stores to inquire about automobile insurance on behalf of his client. Safeway Insurance Company's manager in Lafayette testified that four or five individuals had inquired if the insurance company was associated with the grocery store.
[46] Actually the predecessor to Safeway Insurance Company began using the words "safe" and "way" in 1959. See text at note 20, supra.
[47] The court has been presented with no evidence that the survey results were intended to apply only to such localities as there was no screening question to determine residency.
[48] The Court believes these young drivers would not normally purchase automobile insurance, although they were licensed drivers and would inevitably purchase automotive supplies of the nature in the Exxon case.
[49] See note 4, supra.
[50] The Court took under advisement the admissibility of the following exhibits: P-3, 4, 10, 50-1, 50-2-6, 53-A to G, D-4, D-31. Objections made to portions of the depositions of Messrs. Dale, Horton, Stanton and Tobin; D 21, 23, 25, and 26, respectively, were also taken under advisement.
[51] See Rules 401-403 and Rules 702-705 of the Federal Rules of Evidence.
[52] P-50-1, to-2-6, and 53-A-G pertain to surveys. The Court has previously discussed the weight to be given to the survey evidence at pages 1317-18 of the opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265400/ | 619 A.2d 432 (1993)
Robert W. GIBBONS
v.
Lucinda M. GIBBONS.
No. 91-266-Appeal.
Supreme Court of Rhode Island.
January 27, 1993.
*433 Stephen J. Fortunato, Fortunato & Tarro, Allen Kirshenbaum, Carolyn Barone, Kirshenbaum Law Associates, Kris Macaruso Marotti, Fortunato & Tarro, Warwick, for plaintiff.
Howard Lipsey, Lipsey & Skolnik, Providence, for defendant.
OPINION
PER CURIAM.
This case comes before us on the appeal of Robert W. Gibbons (husband) from orders of equitable property distribution, counsel fees, and child support awarded to Lucinda M. Gibbons (wife) incident to a judgment entered in the Family Court awarding a divorce to the husband on the grounds of irreconcilable differences. Neither party appeals from the judgment of divorce. The husband and the wife were married on July 28, 1973. As of the time of the entry of the decision pending final judgment of divorce, the parties had been married for seventeen and a half years. The husband is a podiatrist with an annual business income of approximately $280,000 per year. The general master who presided at the trial of this case awarded to the wife 70 percent of the marital assets, which the master found to be in the amount of $1,214,294.48. The actual total of marital assets from our calculations should have been $1,180,940.23. The master awarded the remainder of the assets to the husband. In calculating the cash amount to be paid to the wife from the value of the podiatric practice, the sum of $442,777 was ordered to be paid on or before January 1, 1991, or at the option of the husband over a period of five years with interest at the rate of 12 percent per annum, each installment payable on January 1 of each year beginning in 1991 in no less an amount than $88,555 per year plus 12 percent interest. These awards were made in lieu of alimony. Our calculation of the cash award indicates that this sum should have been $432,776.29 (deducting $417,223.71 in assets from the total award of $850,000).
We shall consider the points raised by the husband in the order in which they are set forth in his brief. We affirm the orders in part and modify them in part.
I
THE AWARD OF 70 PERCENT OF THE MARITAL ESTATE
We are of the opinion that the general master did not err in awarding the wife 70 percent of the marital estate since we cannot say that he was clearly wrong in applying the criteria for equitable distribution pursuant to G.L. 1956 (1988 Reenactment) § 15-5-16.1, which sets forth the factors to be considered in distributing marital assets, namely, (1) the length of the marriage, (2) the conduct of the parties during the marriage, (3) the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates, and (4) the contribution and services of either party as homemaker. In the instant case the parties had been married for seventeen and a half years. The wife had been an exemplary homemaker, caring for the five children of the parties, and had contributed to her husband's education. She had been employed whenever possible after the birth of the first child and had assisted the husband as a nurse when he opened an office in the town of North Providence. The master attributed no fault to the wife for the break up of the marriage but found that the husband was fully responsible for the termination of the marriage by carrying on an extra-marital affair with one of his employees while his wife was pregnant with the fifth child. The general master, in considering all the factors set forth in the statute, acted well within his discretion in making the award. See Marocco v. Marocco, 571 A.2d 572 (R.I. 1990); Stanzler v. Stanzler, 560 A.2d 342 (R.I. 1989).
II
THE VALUATION OF THE PODIATRIC PRACTICE
After considering the testimony of the expert witnesses, the general master arrived *434 at a value of the podiatric practice in the sum of $504,000. This valuation was made on the basis of the testimony of an expert witness, Alan Gilstein, C.P.A., who capitalized future earnings from the practice and concluded pursuant to Internal Revenue Service ruling 59-60 that the total value of the practice was $840,000. He reduced this figure by 20 percent for lack of marketability to the sum of $672,000 as the fair market value of the practice. The general master in his finding adopted a 40-percent factor for lack of marketability that had been determined by one of the husband's experts, Eugene Amelio, esquire. The master rejected the testimony of another expert presented by the husband, Anthony Melia, C.P.A. Using the 40-percent discount for lack of marketability, the general master arrived at the figure of $504,000.
The court is divided on the propriety of this award. Two justices are of the opinion that it is improper as a matter of law to capitalize the earnings of a professional practice on the basis of the services of a single individual in order to arrive at a good-will factor in ascertaining the value of such practice. See, e.g., Powell v. Powell, 231 Kan. 456, 648 P.2d 218 (1982); Hanson v. Hanson, 738 S.W.2d 429 (Mo. 1987); Nail v. Nail, 486 S.W.2d 761 (Tex. 1972); Sorensen v. Sorensen, 839 P.2d 774 (Utah 1992); Holbrook v. Holbrook, 103 Wis.2d 327, 309 N.W.2d 343 (1981).
Two justices are of the opinion that this issue has not been preserved on appeal by reason of the fact that the husband's experts also purported to value the good will of this practice, utilizing the factor of capitalizing a portion of future excess earnings. Consequently, since the court is equally divided on this issue, the findings of the general master concerning this valuation are affirmed.
III
ATTORNEYS' FEES
The general master awarded to the wife the sum of $82,602 in counsel fees. The husband challenges this award on two grounds. He argues first that the wife has ample funds with which to pay her own counsel fees, particularly in light of the award to be paid in cash on the basis of the valuation of the podiatric practice. Second, the husband argues that the award was excessive. The wife argues that her lack of earnings, both at present and in the foreseeable future, make her less able to pay counsel fees than the husband. The wife further argues that this court should further consider the fact that she has not been awarded a sum for alimony.
Taking both of these positions into account, we believe that this case tends to be sui generis. There is no question that the wife has been awarded substantial assets. There is further no question that the husband's earning power far exceeds that of the wife and is likely to do so on a permanent basis. The wife's ability to seek employment was found by the master to be severely limited in light of her role as caretaker of five children, one of whom has special needs. In the special circumstances of this case, we believe that some award of counsel fee was within the discretion of the general master. However, we are of the opinion that this award should not exceed $35,000. In arriving at this amount, we take into account that the actual services based upon expenditure of time was in the sum of less than $22,000. The balance of the attorney's fee awarded constituted an additional amount that the master derived from factors included in Rule 1.5 of Rule 47 of the Supreme Court Rules of Professional Conduct. Taking these factors into account is a matter of strong dispute between the parties. We find it unnecessary to resolve this dispute in this case. In light of the assets available to the wife as well as the earning capacity of the husband, we believe that the wife is able to bear the cost of a significant amount of her own counsel fees. Therefore, we reduce the amount of the award of counsel fee to the sum of $35,000, which sum shall include costs for expert witnesses and other costs.
IV
THE INSTALLMENT PAYMENT
Although the court is equally divided on the issue of the valuation of the *435 podiatric practice, we believe that the installment option made available to the husband is appropriate. However, in light of present-day interest rates, we are of the opinion that the addition of 12 percent interest is excessive. This is not an action in tort but a marital distribution of property. Therefore, the interest applicable to the optional installment payments is reduced to six percent per annum.
V
VALUATION OF CRANBERRY TERRACE PROPERTY
The Cranberry Terrace property is a piece of residential realty purchased by the husband in Alpine Estates in the city of Cranston. It is agreed that the property was purchased for $390,000 and that at the time of the trial of this case was subject to a mortgage of $307,400. The husband presented an expert, James Sloane, who testified that the current market value of the property was $292,000. The general master's finding in regard to the equity value was based upon the original purchase price together with the cost of improvements made to the property as of the time of purchase.
The general master rejected James Sloane's testimony as unpersuasive. We believe that in this instance the master was not clearly wrong in utilizing a cost basis for his valuation of the property, although normally comparable sales do provide the most persuasive evidence of value. However, on cross-examination, testimony was adduced from the expert that he did not take into account in adjusting his comparable sales the postpurchase additional improvements to the Cranberry Terrace property. In this analysis the master was not clearly wrong.
VI
CHILD SUPPORT
The general master awarded the sum of $1,000 per month per child for the support of the minor children of the parties. In so doing, he took into account the factors set forth in § 15-5-16.2. He considered the standard of living that the children would have enjoyed had the marriage not been dissolved, the circumstances of the children and their educational needs, and the financial resources and needs of the noncustodial parent. The award of child support is within the sound discretion of the trial justice (here the general master). Sullivan v. Sullivan, 460 A.2d 1248, 1249 (R.I. 1983).
Considering the circumstances of the husband and the wife, as well as the standard of living of the husband and his probable future income, we believe that the general master did not abuse his discretion in the award of support for the minor children.
VII
THE WIFE'S HEALTHCARE COVERAGE
The general master required the husband to pay for the wife's health-care coverage in accordance with the Rhode Island Insurance Continuation Act or during the five-year period in which the husband is paying the sums due pursuant to marital distribution, whichever occurs later.
General Laws 1956 (1989 Reenactment) § 27-20.4-1 allows the wife to be eligible for continuing benefits under her husband's health plan until (1) the remarriage of either party to the divorce or (2) such time as provided by the judgment of divorce.
We are of the opinion that this portion of the order requires clarification. We cannot determine whether this health-care coverage would terminate forthwith upon the payment of the lump sum provided in the marital distribution award or upon the remarriage of either party. We therefore remand this question to the general master for clarification.
We have considered other points raised by the husband in support of his appeal and find that they are without merit.
For the reasons stated, the orders issued by the master are affirmed in part and modified in part. The papers in the case *436 are remanded to the general master with directions to modify his orders in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265405/ | 657 F.Supp. 6 (1986)
Walter THATCHER, Plaintiff,
v.
Bert BRENNAN and Mead Johnson and Company, Defendants.
Civ. A. No. J84-0610(L).
United States District Court, S.D. Mississippi, Jackson Division.
September 16, 1986.
*7 Cy Faneca, Rushing & Guice, Biloxi, Miss., for plaintiff.
Jerry T. Johnston, Johnston & Younger, Brandon, Miss., for defendants.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of the defendant, Mead Johnson and Company (Mead Johnson), for summary judgment. The plaintiff, Walter Thatcher, filed timely response to the motion and the court has considered the memoranda with attachments of both parties.
The plaintiff brought this action against Bert Brennan and Mead Johnson, jointly and severally, following an altercation between the plaintiff and Brennan which occurred on May 21, 1984. The alleged liability of Mead Johnson is predicated upon two theories: (1) respondeat superior and (2) negligent hiring. Mead Johnson has moved for summary judgment on both theories.
When considering a motion for summary judgment, the court must view the pleadings and evidentiary material, and reasonable inferences to be drawn therefrom, in the light most favorable to the non-moving party, and the motion should be granted only where there is no genuine issue of material fact. Walker v. U-Haul Co. of Miss., 734 F.2d 1068, 1070-71 (5th Cir. 1984). Although the pleadings and other material submitted on this motion do present some contested factual issues, the court is of the opinion that the disputed facts are not material to a resolution of this case and thus do not preclude summary judgment.[1]
*8 RESPONDEAT SUPERIOR
On May 21, 1984, Bert Brennan was an employee of Mead Johnson, having been hired February 8, 1982. As a medical sales specialist, Brennan was responsible for the sale of Mead Johnson pharmaceutical products, primarily through physician specifications. Although he lived in Covington, Louisiana, Brennan's sales territory included Hinds County, Mississippi. He was required by Mead Johnson to be in Jackson, Mississippi at least once every five weeks to make calls on physicians. Due to the travel required, Brennan was provided an automobile by his employer and was reimbursed for his travel expenses, including the expenses for his trips to Jackson.
On the morning of May 21, 1984, Brennan had made some physician sales calls in New Orleans, Louisiana. About 12:30 or 1:00 P.M., he left his home in Louisiana and drove to Jackson. Upon arrival, Brennan checked into a hotel, got some paper work "squared away," and then drove to the post office to mail it. Upon leaving the post office, Brennan turned his automobile right onto a street in front of Thatcher, and a disagreement began, which continued until the cars stopped and a fight took place in the parking lot of a jewelry store. After this incident, which occurred about 5:45 P.M., Brennan returned to his motel. For purposes of this motion, Mead Johnson has admitted that Brennan instigated the altercation without provocation from the plaintiff.
The paper work which Brennan mailed consisted of physician call cards and a sample inventory. The parties disagree as to whether Brennan was in fact required to mail these papers. Mead Johnson claims that these items could have been mailed at some other time and/or place, whereas the plaintiff asserts that Brennan was required by Mead Johnson to mail the call cards daily. The court is of the opinion that this is immaterial since, whether required or not, Brennan did mail the papers and, in doing so, was performing his work as a Mead Johnson sales representative.
When Brennan left the post office, he was returning to his hotel where he had planned to make dinner arrangements with a doctor friend. As such social interaction with physicians is encouraged by Mead Johnson, it may be reasonably inferred that Brennan was returning to the hotel to perform business-related activities. Nevertheless, the parties agree that while Brennan was in Jackson, he was not required by Mead Johnson to follow any specific schedule or agenda. Importantly, it is also agreed between the parties that nothing about Brennan's altercation promoted the sale of pharmaceuticals for Mead Johnson.
It is clear in Mississippi that an employer may be held liable for the intentional acts of its employees if the employer either authorized the act prior to or ratified the act after its commission, or the act was committed within the scope of employment. Horton v. Jones, 208 Miss. 257, 44 So.2d 397 (1950). Since there is nothing to indicate that Mead Johnson either authorized or ratified Brennan's intentional assault and battery upon Thatcher, Brennan must have been acting within the scope of his employment in order for Mead Johnson to be held liable.
In Loper v. Yazoo and M.V.R. Co., 166 Miss. 79, 145 So. 743 (1933), the Mississippi Supreme Court recognized that the phrase "scope of employment" which is used to determine an employer's liability for the acts of its employees has no fixed legal or technical meaning. Instead, the court has enunciated various tests for determining whether particular conduct of an employee is within the scope of employment. These tests include, for example,
(1) Whether the employee's conduct is "so unlike that authorized that it is substantially different," Hahn v. Owens, 176 Miss. 296, 168 So. 622 (1936);
(2) Whether the act complained of is committed in the prosecution of the employer's business and within the scope of the employee's authority, Horton v. Jones, 208 Miss. 257, 44 So.2d 397 (1950);
(3) Whether such act is in the furtherance of the business of the master and as an incident to the performance of the duties of the character or kind which he was employed to perform, White's Lumber *9 and Supply Company v. Collins, 186 Miss. 659, 191 So. 105 (1939); and
(4) Whether the act was done in the course of and as a means of accomplishing the purposes of the employment and, therefore, in furtherance of the master's business. Odier v. Sumrall, 353 So.2d 1370 (Miss.1978).
These "tests" provide some guidance, but often a fine line separates those acts which are within and those which are without the scope of employment. It has been noted that,
The most difficult questions arise where the servant, for strictly personal reasons and not in furtherance of his employment, loses his temper and attacks the plaintiff in a quarrel which arises out of the employmentas where, for example, a truck driver collides with the plaintiff, and an altercation follows. Here, unless some non-delegable duty can be found, the older rule denied recovery, and this is still the holding of the majority of the decisions. There has been a tendency in the later cases, however, to allow recovery on the ground that the employment has provided a peculiar opportunity and even incentive for such loss of temper[.]
Prosser and Keeton, The Law of Torts, 465-66 (5th ed. 1984).
The Fifth Circuit has recently noted that an employee is not necessarily acting outside the scope of his employment when he commits an intentional tort or criminal act. Rather,
Acts committed by a servant are considered within the scope of employment when they "are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." Prosser and Keeton, The Law of Torts, 502 (5th ed. 1984). Among the factors considered to determine whether the acts are within the scope of employment are: (1) the time, place and purpose of the act; (2) its similarity to acts which the servant is authorized to perform; (3) whether the act is commonly performed by such servants; (4) the extent of departure from normal methods; (5) the previous relations between the parties; and (6) whether the master would reasonably expect such an act would be performed. Id.
Domar Ocean Transportation, Ltd. v. Independent Refining Co., 783 F.2d 1185, 1190 (5th Cir.1986). In the instant case, Brennan was authorized, expected, and even required to drive an automobile as part of his employment. However, he was not authorized to assault other persons, and there is nothing in the previous relationship between Brennan and Mead Johnson which would indicate that such conduct was acceptable. Moreover, the act is not one which is commonly performed by Mead Johnson sales personnel, nor can it be said to be a "normal" method of selling, or similar to acts which Brennan was authorized to perform. The most that can be said is that the assault was within the "time and place" of employment. The "purpose" of the assault was not to further any of Mead Johnson's interests but, rather, was intended to satisfy Brennan's purely personal objectives.
The plaintiff has cited several cases in support of his contention that Mead Johnson should be held liable under the theory of respondeat superior. The first, Pritchard v. Gilbert, 107 Cal.App.2d 1, 236 P.2d 412 (1951), involved a factual situation similar to that presented in the case sub judice. In Pritchard, as in the present case, the employee was a salesman who was operating an automobile furnished him by his employer. While returning from a sales meeting, the employee, believing his rights on the highway to have been violated, turned his car, pursued the plaintiff and, after causing him to stop, gave him a severe beating. The California court held that the fact that the assault did not further the employer's interest and that the employee did not thereby intend to further such interest did not absolve the employer of liability since the injury resulted from a dispute arising out of the employment. Pritchard, 236 P.2d at 414 (citing Carr v. Wm. C. Cromwell Co., 28 Cal.2d 652, 171 P.2d 5, 6 (1946)). The court further stated *10 that "it is not necessary that the assault should have been made `as a means, or for the purpose of performing the work he (the employee) was employed to do.'" Id. In this regard, the California approach differs markedly from that taken by the Mississippi courts in that for the master to be held liable for the intentional conduct of an employee in Mississippi, the servant must be acting in furtherance of the employer's business. See Odier v. Sumrall, 353 So.2d 1370 (Miss.1978).
Another case relied on by the plaintiff is Marston v. Minneapolis Clinic of Psychiatry and Neurology Ltd., 329 N.W.2d 306 (Minn.1982). That case is, however, unpersuasive since Minnesota, like California, takes a broader view than Mississippi of an employer's liability under respondeat superior and does not require that the employee have been motivated by a desire to further the employer's business.[2] In Prairie Livestock Company, Inc. v. Chandler, 325 So.2d 908 (Miss.1976), the Mississippi Supreme Court noted that where the act complained of is committed by the employee as an individual on his own account, or done solely for the employee's own purpose and not in furtherance of the employer's business, then such act is without the scope of employment and the employer is not liable. Prairie Livestock, 325 So.2d 908, 910 (quoting Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823 (1900)). In the present case, Brennan was acting for his own purpose in attacking the plaintiff. He was not acting in his capacity as a Mead Johnson employee, but rather in his individual capacity. Additionally, the parties agree that the altercation did not advance any of Mead Johnson's interests. The fact that the attack occurred while Brennan was engaged in Mead Johnson business, or that he was driving a car furnished by Mead Johnson, does not preclude a finding that he was not within the scope of employment. See Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 157, 28 So. 823, 824 (1900). Further, the court observes that while an employer may reasonably be held accountable for the intentional conduct of its employees where such conduct is within the scope of employment, the employer cannot be the insurer of safety of all persons with whom the employee comes in contact. For the foregoing reasons this court is of the opinion that the assault by Brennan was not within the scope of his employment. The connection between the assault and the business of Mead Johnson is tenuous at best and wholly insufficient to impose liability on Mead Johnson.
NEGLIGENT HIRING
The plaintiff has also asserted a claim against Mead Johnson on the basis of negligent hiring. He contends that Mead Johnson either knew or should have known of Brennan's alleged propensity for violence but nevertheless employed Brennan, placed him in contact with residents of Hinds County and directed him to travel the streets of Jackson for the purpose of selling pharmaceutical products "even though he has violent and malicious personality traits."
Although it does not appear that the Mississippi Supreme Court has addressed the issue of negligent hiring in connection with an employee's intentional tort, in Jones v. Toy, 476 So.2d 30 (Miss.1985), the court recognized an employer's duty to exercise due care in hiring, and held that an employer may be charged with an employee's negligence and be liable for resulting injuries "if the master knew or should have known" of the employee's incompetence. Jones, 476 So.2d at 31. This court is of the *11 opinion that the Mississippi Supreme Court would apply this same standard if confronted with the issue of an employer's liability for negligent hiring of a person with a propensity for violence. Accordingly, the court concludes that in this case plaintiff must prove that (1) Brennan had a propensity for violence, (2) Mead Johnson knew or should have known of such propensity, and (3) Mead Johnson, in disregard for the rights of those persons with whom Brennan could reasonably be expected to come into contact, hired Brennan, either negligently or with callous disregard for the rights of such persons.
In Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 861 n. 1 (5th Cir.1985), the Fifth Circuit noted that under Mississippi law, liability cannot be imposed upon an employer under a theory of negligent entrustment unless the employee is first found to be negligent. Similarly, under a theory of negligent hiring, the plaintiff must show that the employee is either incompetent or unfit in order to impose liability on the employer. See Jones, 476 So.2d at 31. In this case, the plaintiff alleges that Brennan had a propensity for violence. "Propensity" is defined as "a natural inclination: innate or inherent tendency." Webster's Third New International Dictionary 1817 (Third Edition 1981). It is not sufficient that the plaintiff prove a mere possibility of violence. See Offshore Logistics, Inc. v. Astro-Marine, Inc., 482 F.Supp. 1119, 1121 (E.D.La.1980). Rather, there must be proof that the employee/assailant was a person of known vicious character or one whom the employer should have known had a vicious character. Schultz v. Evelyn Jewell, Inc., 476 F.2d 630, 631 (5th Cir.1973). The plaintiff herein has failed to demonstrate any propensity for, or likelihood of, violence on the part of Brennan and has further failed to produce sufficient evidence that Mead Johnson knew, or had reason to know, of any such propensity for violence. The only evidence of actual violent conduct by Brennan is the affray between him and the plaintiff which is the subject of this action. Plaintiff has directed the court's attention to no other incident, either preceding or following his being hired by Mead Johnson, which would tend to show that Brennan was a violent or vicious individual. Instead, plaintiff asserts that the results of a personality inventory test and an adaptability test taken by Brennan reveal his propensity for violence.
These tests were administered to Brennan by Mead Johnson personnel prior to his being hired in February 1982. An evaluation of the test results led Mead Johnson's personnel employees to the following conclusion:
Bert has the potential to be a moody, opinionated and headstrong and early in his life might even have been considered spoiled or immature ... Bert is a person of high aggression....
Overall profile appears to be significantly different from the temperament profile of most sales candidates we see. It appears to reflect a young person undergoing a great deal of emotional and personal stress and turmoil.
Plaintiff contends on the sole basis of this evaluation that Brennan, as a person of "high aggression," did indeed have a propensity for violence, and that Mead Johnson had knowledge of this propensity as a result of its own analysis of Brennan's personality inventory tests.
The plaintiff has supplied the court with an analysis of the test results by a clinical psychologist, J. Donald Matherne, Ph.D. Dr. Matherne states that upon review of the information provided him, it is "quite apparent that ... Wilbert Brennan, manifests evidence of very serious emotional and personality instability." He further states that the "test findings clearly indicate an individual lacking in self-control, socialization skills and responsibility," and that Mead Johnson apparently hired Wilbert Brennan with full knowledge of his propensity for aggression as well as his propensity for violent behavior. He further opines that Wilbert Brennan should not have been employed by Mead Johnson as a pharmaceutical sales representative since "one would predict with a high degree of clinical probability that this individual would have manifested, within a period *12 of time, significant adjustment problems, work inefficiency and problems involving self control." The court is of the opinion that the test results alone did not provide a sufficient basis to put Mead Johnson on notice of any purported violent tendencies of Brennan. While Brennan may have been accurately evaluated as a person of "high aggression," the term "aggression" is not synonomous with "violent."
The tests in question were administered in late 1981, and the evaluation by Mead Johnson personnel was rendered in January 1982. The altercation between Thatcher and Brennan did not occur until May 1984, after Brennan was hired, and during this two-year period there is no evidence that Brennan demonstrated any violent behavior whatsoever. One who is volatile and malicious and who has a propensity for violence would presumably have manifested such aberrant traits over a two-year period. Yet, during the interim between the time that Brennan was hired and the date of the altercation with Thatcher, there were no incidents of violent behavior. Therefore, even assuming Mead Johnson, at the time it hired Brennan, could have reasonably concluded on the basis of the tests that Brennan had a potential for violence, the total lack of evidence of any violent conduct by Brennan over the succeeding two years certainly belies any claim of negligent hiring under the circumstances of this case.
Accordingly, it is ordered that the motion for summary judgment of defendant Mead Johnson is granted.
NOTES
[1] A "material" fact is one which is dispositive, or which has some legal significance. See Marshall v. Kimberly-Clark Corp., 625 F.2d 1300 (5th Cir.1980), on remand, Equal Employment Opportunity Comm'n v. Kimberly Clark Corp., 531 F.Supp. 58 (N.D.Ga.1981); Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, reh'g denied, 691 F.2d 502 (5th Cir.1982).
[2] Prior to 1973, Minnesota imposed liability only where it was shown that the employee's acts were motivated by a desire to further the employer's business. Marshton, 329 N.W.2d at 309. However, in Lange v. National Biscuit Co., 297 Minn. 399, 211 N.W.2d 783 (1973), the Minnesota court adopted the rule that "an employer is liable for an assault by his employee when the source of the attack is related to the duties of the employee and ... occurs within work related limits of time and place," and abandoned the motivation test. Lange, 297 Minn. at 405, 211 N.W.2d at 786. Mississippi appears to adhere to what the Minnesota court termed as the "motivation" test as it holds that the act must be in the furtherance of the employment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265408/ | 657 F.Supp. 295 (1987)
NATIONAL POST OFFICE MAIL HANDLERS, WATCHMEN, MESSENGERS AND GROUP LEADERS DIVISION OF the LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFLCIO, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.
Civ. A. No. 85-K-1846.
United States District Court, D. Colorado.
March 29, 1987.
*296 Joseph M. Goldhammer, Brauer & Buescher, Denver, Colo., for plaintiff.
James R. Cage, Asst. U.S. Atty., Denver, Colo., William B. Peer, Barr & Peer, Washington, D.C., for defendant.
MEMORANDUM OPINION AND ORDER
KANE, District Judge.
This is an action to vacate an arbitration decision upholding the defendant's termination of Edward Cavanagh, a mail handler and member of the plaintiff union. Jurisdiction is alleged under 39 U.S.C. § 1208(b), § 409(a) and 28 U.S.C. § 1331. This question is not disputed, and I hold jurisdiction lies. See, e.g., American Postal Workers Union, AFL-CIO v. United States Postal Service, 766 F.2d 715, 720 (2d Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1262, 89 L.Ed.2d 572 (1986).
As a threshold matter, defendant directs my attention to Pittsburgh Metro Area Postal Workers Union v. United States Postal Service, 463 F.Supp. 54, 55-57 (W.D.Pa.1978), affirmed, 609 F.2d 503 (3d Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1598, 63 L.Ed.2d 785 (1980). In that case, defendant asserts the court held "[t]he local division of a national postal union does not have standing, under 39 U.S.C. § 1208(b), to bring an action to enforce the collective bargaining agreement." Defendant's Summarization Brief, at 11. Defendant next notes that "[w]hile the national union is named as plaintiff on the caption of the Amended Complaint, the address of the local union is set forth at the conclusion of that complaint and plaintiff has not submitted evidence demonstrating that at the time that this action was instituted, suit was filed under the authority of the national union. Thus, this action should be dismissed." Id.
Plaintiff has responded to this argument by filing a motion to strike the portion of defendant's brief which raises it. Plaintiff avers "[t]he address on the complaint is merely a mailing address for the receipt of mail in this area." Motion to Strike, at ¶ 4.
Until I ordered summarization briefs in this case, see order of February 20, 1987, defendant had raised the standing issue only as an ancillary point in the briefing. See October 1, 1985 Memorandum in Support of Defendant's Motion to Dismiss or in the Alternative for Summary Judgment, at 8, n. 2. No separate motion to dismiss on standing grounds was filed even though this case has, unfortunately, lain dormant for an inordinate amount of time. Moreover, as plaintiff attests, the record is devoid of evidence on the point contested. The parties have not even addressed the question of who bears the burdens of production and persuasion on such evidence. Plaintiff's motion to strike the standing argument is therefore granted.[1]
This controversy has its genesis in an automobile accident on June 1, 1982. Mr. *297 Cavanagh sustained serious injuries to his feet on that date. After spending the summer recuperating from the accident, Mr. Cavanagh applied for temporary assignment to light duty, off his feet. The Postal Service approved this application on September 21, 1982. This procedure was conducted in accordance with Article 13, Section 13.2, Paragraph A of the collective bargaining agreement between plaintiff and defendant. The agreement was in force from July 21, 1981 until July 20, 1984.
Mr. Cavanagh continued on light duty for some time. In June 1983, he reported to Dr. Donald M. Olson for a physical fitness for duty examination. Dr. Olson was the Postal Service's area medical officer. Mr. Cavanagh was referred to Dr. Olson by George Ufema, the Postal Service's injury compensation specialist. Following receipt of Dr. Olson's report, Deborah Jones, as acting injury compensation specialist, and Mr. Ufema made efforts to discover whether Mr. Cavanagh's disability was permanent. These efforts included contact between Ms. Jones and Dr. Olson, Mr. Ufema and Dr. Olson, Mr. Ufema and Dr. Harold Yocum, and Drs. Olson and Yocum. Dr. Yocum was Mr. Cavanagh's treating physician.
As a result of these contacts, the Postal Service concluded Mr. Cavanagh's injuries were permanent. On October 14, 1983, Ms. Jones sent the following letter to Mr. Cavanagh:
Medical certification has been received by the Denver Bulk Mail Center indicating that your off-the-job injury has caused a permanent disability to your leg. Subchapter 563.23 of the Employee & Labor Relations Manual (ELM) provides the procedures for disability retirement. In addition, on Wednesday, October 12, 1983, Injury Compensation Specialist George Ufema discussed with you the option of applying for disability retirement.
It is requested that you advise the Denver BMC by no later than Friday, October 28, 1983 as to whether you plan to apply for disability retirement.
According to the Postal Service, Mr. Cavanagh did not respond to this communication. On October 28, 1983, Mr. Ufema mailed another missive to Mr. Cavanagh. This letter began by recounting the efforts which had been made to review with Mr. Cavanagh the "procedures for applying for permanent light duty and disability retirement." The letter continued:
You requested that Management identify a permanent light duty assignment for you prior to submitting a request for such an assignment. Article XIII Section 2.B.1. of the 1981 National Agreement provides the procedures for applying for a permanent light duty assignment. Management will be unable to identify a permanent light duty assignment without a written request being initiated by you first.
If you wish to be considered for a permanent light duty assignment, we must have a request in writing no later than Wednesday, November 2, 1983. Otherwise, Management will have no other alternative but to move for your separation for being physically unable to perform the duties of the position of Mail Handler.
According to the defendant, Mr. Cavanagh never applied for a permanent light duty assignment. On December 22, 1983, the Postal Service therefore issued a written notice of removal in no less than 30 days. Mr. Cavanagh responded to this notice on December 30. In that response, he attempted to refute the allegations of permanent disability. He also claimed to have answered the Jones letter of October 14. Mr. Cavanagh stated he believed the Postal Service's actions against him were based on his participation in union activity. These replies, however, were unavailing. By written notice dated January 30, 1984, Mr. Cavanagh was removed from his job effective February 1, 1984.
The removal notice advised Mr. Cavanagh of his option to take an appeal to the Merit Systems Protection Board or to file a grievance under the grievance-arbitration procedure of article 15 of the collective bargaining agreement. Mr. Cavanagh *298 chose the latter alternative. The plaintiff filed a grievance on his behalf, but it was denied at lower administrative levels. The case was ultimately heard by the arbitrator. On May 15, 1985, the arbitrator issued a decision denying the grievance, holding the Postal Service had just cause for terminating Mr. Cavanagh, holding the termination was unrelated to Mr. Cavanagh's union activities, and holding the Postal Service did not violate the requirements of reasonable accomodation to a handicapped employee under 5 C.F.R. § 1613.701 et seq. and the United States Office of Personnel Management's Handbook on Reasonable Accomodation. This lawsuit followed.
The amended complaint states two causes of action. The first claim is a broad-based attack on the arbitration award. Paragraph 16 of the amended complaint states as follows:
16. The award is not valid and enforceable and should be vacated for the following reasons:
a. The award does not draw its essence from the collective bargaining agreement;
b. The arbitrator violated his obligation under the agreement and exceeded his authority under the agreement by making a determination that Mr. Cavanagh was disabled when the exclusive authority for such a determination initially is delegated to the Office of Personnel Management by both the collective bargaining statute and by statute;
c. The arbitrator dispensed his own brand of industrial justice by failing and refusing to follow the dictates of federal law as directly incorporated into the collective bargaining agreement;
d. The award is contrary to the public policy embodied in 5 U.S.C. § 8337 prohibiting the discharge of handicapped employees capable of performing useful and efficient service for the Postal Service in some capacity; and
e. The award is contrary to the public policy embodied in 29 C.F.R. 1613.701, et seq., as incorporated into the collective bargaining agreement in that Mr. Cavanagh was not afforded reasonable accommodation as a handicapped person qualified to perform efficient service for the Postal Service.
The second claim for relief states:
The Postal Service violated Mr. Cavanagh's rights under 5 U.S.C. § 8337 and implementing regulations, which rights exist independently of the 1981 agreement, and which rights are enforceable regardless of the arbitration award referred to above. The Postal Service violated said rights by discharging Mr. Cavanagh without exhausting the involuntary retirement procedures in 5 U.S.C. § 8337 and implementing regulations.
The crux of the complaint is the defendant's alleged failure to comply with the requirements of 5 U.S.C. § 8337. See Amended Complaint, ¶ s 7, 8, 9, 11, 12, 14. The second claim, which alleges a violation of that statute separate and apart from the collective bargaining agreement's incorporation of the statute, see Article 21, Section 21.3, was added on October 18, 1985. The amendment is an apparent attempt to avoid the stringent standard of judicial review which defendant invoked in its October 1, 1985 motion for dismissal or summary judgment. The first claim is a mere concatenaton of jargon alleging that 5 U.S.C. § 8337 was not followed.[2] I find both claims rest on the same reading of 5 U.S.C. § 8337.
The case is before me now on cross-motions for summary judgment.[3] Plaintiff's *299 motion contends 5 U.S.C. § 8337 requires that an employee with at least five years service[4] may not be separated for disability, but must be retired instead. Brief in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, at 13. Plaintiff argues the arbitrator improperly deprived the Office of Personnel Management of its sole statutory authority to determine the question of whether Mr. Cavanagh was permanently disabled. Id. at 14.
The applicable subsection of the statute in question, 5 U.S.C. § 8337, is subsection (a). In pertinent part, that subsection reads:
An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee's own application or on application by the employee's agency. Any employee shall be considered to be disabled only if the employee is found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee's position and is not qualified for reassignment, under procedures prescribed by the Office, to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service. For the purpose of the preceding sentence, an employee of the United States Postal Service shall be considered not qualified for a reassignment described in that sentence if the reassignment is to a position in a different craft or is inconsistent with the terms of a collective bargaining agreement covering the employee.
Plaintiff avers "[t]he case law and other authorities applicable at the time of Cavanagh's discharge are unanimous in requiring that a disabled employee with five or more years of service be the subject of a Civil Service Retirement and not discharged. This argument is thoroughly briefed in part II(A) in the plaintiff's brief in support of its motion for summary judgment." Plaintiff's Summarization Brief, at 5.
The cases plaintiff originally cited in support of its proposition that the Postal Service was obligated to retire Mr. Cavanagh under this statute rather than separate him through removal are: Anderson v. Morgan, 263 F.2d 903 (D.C.Cir.1959), cert. denied, 361 U.S. 846, 80 S.Ct. 99, 4 L.Ed.2d 84 (1959); 39 Comp.Gen. 89 (1959); Lizut v. Department of the Army, 717 F.2d 1391 (Fed.Cir.1983); Sokoloff v. United States, 4 Cl.Ct. 140 (1983); Peele v. United States, 3 Cl.Ct. 419 (1983); and Hill v. Postal Service, 4 M.S.P.B. 44, 3 MSPR 526 (1980). Plaintiff has additionally cited Brink v. Veterans Administration, 4 M.S.P.B. 419, 4 MSPR 358 (1980) and Piccone v. United States, 186 Ct.Cl. 752, 407 F.2d 866 (1969).
Independent research has disclosed additional cases which, at first blush, also support plaintiff's argument concerning the agency's obligation to retire Mr. Cavanagh under the disability statute. In Asberry v. Postal Service, 25 M.S.P.R. 314 (1984), the Merit Systems Protection Board reopened the record on its own motion "to consider whether the agency had an obligation to file for the appellant's disability retirement before proceeding with the removal action." See also Tirado v. Department of the Treasury, 22 M.S.P.R. 590 (1984), affirmed, 757 F.2d 263 (Fed.Cir.1985); and Thompson v. Office of Personnel Management, 21 M.S.P.R. 115 (1984).
Plaintiff's reliance on this line of cases is misplaced. Plaintiff has chosen to ignore one common element in these cases which renders them inapplicable to the instant controversy. That common element is the petitioning employee's mental condition. The Board set forth the law on this issue in Asberry:
It is well settled that an agency may not remove an employee who meets the service requirements for disability retirement, *300 and whose mental condition impairs his judgment and ability to make decisions without first advising him of his right to apply for disability retirement or applying for disability retirement on his behalf. Anderson v. Morgan, 263 F.2d 903 (D.C.Cir.), cert. denied, 361 U.S. 846, 80 S.Ct. 99, 4 L.Ed.2d 84 (1959), and 39 Comp.Gen.U.S. 89 (1959); Hill v. U.S. Postal Service, 4 M.S.P.B. 44 [3 M.S.P.R. 526] (1980); Hensley v. Department of the Army, 4 M.S. P.B. 285 [4 M.S.P.R. 207] (1980); Jarze v. Department of the Air Force, 4 M.S. P.B. 247 [4 M.S.P.R. 164] (1980); Rolig v. Department of the Navy, 8 M.S.P.B. 177 [8 M.S.P.R. 502] (1981). The agency's obligation to file for the employee exists when it has reason to believe he suffers a disability caused by mental disease or injury. The agency opinion need not be based on evidence which incontrovertibly establishes a mental condition. Lizut v. Department of the Army, 717 F.2d 1391 (1983).
Asberry, 25 M.S.P.R. at 316 (emphasis added; footnote omitted).
Put succinctly, plaintiff has misinterpreted the statute. The agency does not have an obligation to file for retirement for all disabled employees who meet the statutory criteria. Rather, the agency's obligation arises only for those employees whose mental condition gives the agency reason to believe the disability is rooted in mental disease or injury. In such a situation, the employee's sense of judgment could well be impaired. To protect the rights of the impaired employee, the law requires the agency to file for retirement on the employee's behalf.
This precaution is obviously not necessary for an employee whose disability has no mental component. In this latter situation, the agency fulfills its § 8337 duty to a qualifying employee simply by informing him of his right to file for disability retirement. Once properly informed of his rights, it is the responsibility of that employee to make the personal decision whether to apply for the retirement, and to then actually file an application if the employee decides disability retirement would be commensurate with his personal plans.
This conclusion is supported by two arguments. First, as noted above, the line of cases cited above involves petitioners with some variety of mental disability. The cases which explicitly deal with this type of disability are legion: the Comptroller General's opinion; Hill; Brink; Peele; Lizut; Asberry; Thompson; and Tirado. Anderson is a very brief opinion, and does not reveal the nature of the appellees' disabilities.[5]Sokoloff contains some dicta which could be construed to support the assertion that the agency must institute disability retirement procedures "for physical or mental reasons," but that case was actually decided on grounds of possible mental impairment because of Sokoloff's longstanding nervous condition.[6] Finally, Piccone is simply inapplicable to the case at bar. In that case, the court held the government could not commence an action for separation while Piccone's appeal for disability retirement was still pending. Mr. Cavanagh never filed for disability retirement, so the Piccone problem never arose.[7]*301 Thus, my conclusion is more than amply supported by the case law.
Second, changes effected in the Code of Federal Regulations at the same time the Postal Service removed Mr. Cavanagh reflect the position that the agency's obligation to file for the employee only applies to employees who are unable to make the decision on their own. These changes were published, as a final rule, in 49 Fed.Reg. 1321, 1331 (January 11, 1984). 5 C.F.R. § 831.1203 was amended to read:
§ 831.1203 Basis for filing application
(a) An agency shall file an application for disability retirement of an employee who has five years of civilian Federal service under the following conditions:
(1) The agency has issued a decision to remove the employee;
(2) The agency concludes, after its review of medical documentation, that cause for the unacceptable performance, conduct, or attendance is due to disease or injury;
(3) The employee is institutionalized, or based on the agency's review of medical and other information, it concludes that the employee is incapable of making a decision to file an application for disability retirement;
(4) The employee has no personal representative or guardian; and
(5) The employee has no immediate family member who is willing to file an application on his or her behalf.
(b) When an agency issues a decision to remove and the conditions described in paragraph (a) of this section have not been satisfied but the removal is based on reasons apparently caused by a medical condition, the agency shall advise the employee in writing of his or her possible eligibility for disability retirement.
The new version of § 831.1203 did not become effective until February 10, 1984. 49 Fed.Reg. 1321. Since Mr. Cavanagh was removed effective February 1, 1984, the new regulation does not apply to him.[8] However, the regulation provides strong support for the proposition that for qualifying employees who are not mentally incapable of making a rational decision to file an application for disability retirement, the agency discharges its statutory obligation when it notifies the employee of his possible eligibility for disability retirement.
The record in this case is devoid of any hint of mental impairment on the part of Mr. Cavanagh. Plaintiff does not raise the issue of Mr. Cavanagh's mental capability or capacity for appreciation. In view of the legal analysis conducted above, I conclude 5 U.S.C. § 8337 is inapplicable to this case. Since plaintiff's complaint presumes this statute applies,[9] the complaint must be dismissed.
*302 IT IS ORDERED that plaintiff's motion for summary judgment is denied. IT IS FURTHER ORDERED that defendant's motion for summary judgment on both of plaintiff's two claims for relief is granted. The clerk is directed to enter judgment accordingly. Each party shall bear its own costs and fees.
NOTES
[1] I also note Mr. Cavanagh designated the union as his representative. 5 C.F.R. § 831.1202(a) (1983). In any event, my disposition of the pending motions on the merits moots defendant's standing argument.
[2] The only subparagraph of the first claim which arguably states a claim in its own right is subparagraph (e). However, § 1613.704 received only passing treatment in plaintiff's briefs. Plaintiff merely cited § 1613.704 to provide inferential support for its arguments under 5 U.S.C. § 8337. See Plaintiff's Brief in Support f Motion for Summary Judgment, at 20.
[3] Defendant filed its motion for dismissal or summary judgment on October 1, 1985. Plaintiff followed with its own motion for summary judgment on October 18, 1985. Because defendant's motion presents matters outside the pleadings, and since plaintiff has been given reasonable opportunity to respond to this material, defendant's motion shall be treated as a Rule 56 motion for summary judgment. Fed.R.Civ.P. 12(b). I will therefore apply the standards of decision applicable on a motion for summary judgment. See Westinghouse Electric Corporation v. Nielsons, Inc., 647 F.Supp. 896, 897 (D.Colo.1986).
[4] It is undisputed that Mr. Cavanagh satisfies the five year requirement.
[5] Anderson, therefore, does not provide direct support for plaintiff's position. Indeed, Asberry's citation of Anderson leads me to believe Anderson also involved mental disabilities. Even if the facts of Anderson were otherwise, however, my conclusion would remain unshaken. Anderson is an older opinion, and given the periodic upheavals which convulse the bedrock of rights of those who work for the federal government, I prefer to rely on more recent cases such as Lizut. Finally, I am not bound to follow the law of another circuit. I therefore decline to follow Anderson to any extent it is inconsistent with my holding today.
[6] In fact, the Sokoloff court flatly stated "that an agency should not remove for disability reasons an employee whose mental condition impairs his judgment and ability without first applying for disability retirement on his behalf." Id., 4 Cl.Ct. at 145 (emphasis added).
[7] Indeed, the problem could not have arisen. Under 5 C.F.R. § 831.501(c) (1983), Mr. Cavanagh could have filed an application for disability benefits up to a year following his separation from the Postal Service. The Sokoloff court reached the same conclusion in n. 7 of its opinion.
[8] In 1983, 5 C.F.R. 831.1203(c) read as follows:
(c) Disability standards. An agency shall file an application for the disability retirement of an employee only when it certifies that:
(1) In its opinion the employee is totally disabled for useful and efficient service in the grade or class of position occupied (as shown by his performance or by a job-related factor) because of disease or injury not due to vicious habits, intemperance, or wilfull misconduct on his part within 5 years before becoming so disabled; and
(2) There is not suitable position vacant for which the employee is qualified and which he is willing to accept instead of retirement.
Plaintiff has failed to address the potential application of this regulation. The regulation must be interpreted in light of the case law on which plaintiff has relied. On that basis, I see nothing in the 1983 regulation which affects my analysis.
[9] Mr. Cavanagh could have sought to sustain his refutations of permanent disability by exercising his rights under 5 U.S.C. § 8337 himself. He claims he did not do so, however, because "he wished to continue working for the Postal Service in a temporary, light-duty capacity." Plaintiff's Brief in Support of Plaintiff's Motion for Summary Judgment, at 3. This assertion defies logic. Since the agency had no obligation to seek a determination from the Office of Personnel Management on his behalf, Mr. Cavanagh could have sought such a determination himself, as he was advised. Since he failed to do so, the agency may make its own disability determination, at least as to his ability to work if not to his entitlement to retirement benefits. My decision on this point is supported by Garner v. Office of Personnel Management, 22 M.S. P.R. 446 (1984) ("An employee may be not disabled enough to be entitled to disability retirement under 5 U.S.C. § 8337(a) despite employing agency's determination that the employee is too disabled to work"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265413/ | 657 F.Supp. 528 (1987)
DRI INDUSTRIES, INC., Plaintiff,
v.
UNITED STATES, Defendant.
Court No. 84-10-01375.
United States Court of International Trade.
February 10, 1987.
*529 Sharretts, Paley, Carter & Blauvelt, P.C., Peter Jay Baskin, New York City, for plaintiff.
Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, New York City, for defendant.
MEMORANDUM OPINION
CARMAN, Judge:
This action involves the proper classification of an item designated as the tool chest portion of a "Tool Locker" tool chest and cabinet. Plaintiff, DRI INDUSTRIES, INC. (DRI), challenges the United States Customs Service's (Customs) classification of the subject merchandise upon liquidation as "Luggage and handbags ... Of other material ... Other ... Other," under item 706.62, Tariff Schedules of the United States (1983) (TSUS) at 20 percent ad valorem.
This Court concurs with Customs' classification and assessment of duties of the tool chest holding the tool chest was properly classified as luggage under item 706.62, TSUS, and dismisses this action.
BACKGROUND AND FACTS
The merchandise which is the subject of this action consists only of the tool chest portion of an article described as a "Tool Locker" tool chest and cabinet. Although both the chest and cabinet portions were imported by plaintiff DRI into the United States from Taiwan at the same time and in the same shipping package, it is only the classification of the tool chest portion which DRI contests. The tool chest portion, which is "of iron or steel", measures approximately 19 inches wide by 12- 5/8 inches high by 9-½ inches deep, has three pull-out drawers with knobs and a hinged top with a handle, and weighs about sixteen pounds when empty. It was classified by Customs upon liquidation under the provision of item 706.62, TSUS[1].
Plaintiff asserts the tool chest portion is, for tariff purposes, a separate article which should be classified under item A 657.25, TSUS[2], duty free under the Generalized System of Preferences (GSP) pursuant to General Headnote 3(c), TSUS (1983).
In the event the subject merchandise (tool chest) does not qualify under the GSP, plaintiff alternatively contends the tool chest should still be classified under item 657.25, TSUS[3], at 7.6 percent ad valorem. Customs has conceded the subject merchandise is entitled to duty free entrance if the Court holds it is properly classifiable under a TSUS provision which is eligible for the G.S.P. treatment.
*530 In the event the tool chest is held not to be classifiable under the provisions of tariff item 657.25, TSUS, plaintiff, in the second alternative, claims the tool chest is properly classifiable as an entirety with the cabinet portion under item 727.55, TSUS[4], at 7 percent ad valorem.
DRI, nevertheless, explicitly stated in its post trial brief it did "not herein press its alternative classification claim that the subject article is for tariff purposes an entirety with the imported cabinet portion, and is therefore classifiable as `furniture.'" Plaintiff's brief at 2.
Customs seeks dismissal of the action contending the Government's classification and assessment of duties is correct.
DISCUSSION
The question in this case is whether or not the tool chest was intended by Congress to be classified under the provision of item 706.62, TSUS, at a duty rate of 20 per cent ad valorem. The issues presented by the parties center around whether the tool chest is "luggage" under item 706.62, TSUS, as defined in TSUS Schedule 7, Part 1, Subpart D, headnote 2(a)(ii), which states:
2. For the purposes of the tariff schedules (a) the term "luggage" covers
* * * * * *
(ii) brief cases, portfolios, school bags, photographic equipment bags, golf bags, camera cases, binocular cases, gun cases, occupational luggage cases (physicians', sample, etc.), and like containers and cases designed to be carried with the person, except handbags as defined herein;
Customs presented exhibits at trial which were representative literature used to depict and describe the tool chest and cabinet for purposes of advertising the merchandise for the retail or wholesale markets. Examination of those exhibits reveals the tool chest is depicted and described as a "separate unit" from the cabinet. The tool chest is described as a "Heavy-Duty, Carry-Along, Three-Drawer Tool Chest" which you "can carry-along wherever you need it." The tool chest is promoted as "[a] totally professional way to securely store and conveniently transport your tools and supplies." The tool chest is "portable" and "will go right to the work site." The "Double Slider Safety Drawers lock-in automatically" which "[m]akes transporting easy...." The literature also displayed pictures of various people using the tool chest, one of which depicted a man kneeling by a water heater with the tool chest on the floor by his side.
DRI presented expert testimony of four witnesses: a plumber, an electrician, an executive of DRI, and a buyer for a large retail chain store, who all agreed the primary purpose of the tool chest and cabinet was for the storing and organizing of tools. Some of these witnesses also testified the tool chest had the capability of being portable. One of these witnesses, the chief executive officer and owner of DRI, testified the tool chest could be transported from place to place but only on a limited basis, i.e., within the house, from one house to another, and from one place to a distant place when taken in an automobile.
Customs' sole expert witness was vice-president of a business which has manufactured and sold metal products, primarily tool boxes and chests, since 1947. He testified his business manufactures a tool chest similar to the tool chest in question. His opinion was the primary purpose of any tool box is to store and organize tools, but his company's tool chest, as is true of DRI's, is designed to be carried and transported from place to place.
The actual tool chest and cabinet, which is the subject of this action, was placed in evidence and thoroughly examined by this Court.
The Court notes at the outset of this discussion:
*531 A presumption of correctness attaches to a classification by the Customs Service, and the importer has the burden of proving that the classification is incorrect.... To give effect to this presumption the courts have long imposed a "dual burden" of proof: the importer must prove not only that the government's classification is incorrect but also that the importer's proposed classification is correct.
* * * * * *
But the trial court cannot determine the correct result simply by dismissing the importer's alternative as incorrect. It must consider whether the government's classification is correct, both independently and in comparison with the importer's alternative.
Jarvis Clark Co. v. United States, 733 F.2d 873, 876, 878 (Fed.Cir.1984) (citations and footnote omitted); see 28 U.S.C. § 2639(a)(1) (1986).
DRI's main contentions are the primary purpose of the tool chest as supported by testimony, is to organize and store tools, and this "[p]rimary [d]esign [a]nd [f]unction [c]ontrols [the] [c]lassification" of the tool chest. DRI states:
[T]he subject tool chests are not luggage [as set forth in headnote 2(a)] because they were designed primarily for a purpose other than to be carried with a person[;] ... they were not designed to be used during the type of travel contemplated by the tariff provisions covering luggage.
Plaintiff's Reply Brief at 3. "There is no indication given by the statutory language, or found in prior case law, that an article would qualify as luggage merely by fulfilling the minimum requirement of having been designed for or capable of being carried around...." Plaintiff's Brief at 50. On the contrary, DRI argues, "[a]n examination of the statutory exemplars, and the rules of ejusdem generis[5] demonstrates the sort of travel intended by Congress." Id. at 51.
Customs basically argues headnote 2(a)(ii) does not have travel as a primary use for those items included within the scope of the definition of "luggage". Unlike headnote 2(a)(i) which does deal with travel, "2(a)(ii) is not qualified by requirements that the primary or chief use or design of the articles embraced there be for travel." Defendant's Brief at 18. The exemplars listed in 2(a)(ii) are containers designed for storage, protection, and organization of their respective contents with the additional requirement other articles, to be included but not listed, be "like containers and cases designed to be carried with the person." 2(a)(ii). No intent of Congress for a travel requirement, as stated in 2(a)(i), is provided therein. Customs maintains, under the doctrine of ejusdem generis, the tool chest is a portable container or case "like" those exemplars listed in 2(a)(ii) because they all retain a common characteristic of being designed to hold or store specific items and are all designed to be carried with a person.
Where the issues involved concern
statutory construction "our starting point must be the language employed by Congress," Reiter v. Sonotone Corp., 442 U.S. 330, 337, [99 S.Ct. 2326, 2330, 60 L.Ed.2d 931] (1979), and we assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9 [82 S.Ct. 585, 591, 7 L.Ed.2d 492] (1962). Thus "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 [100 S.Ct. 2051, 2056, 64 L.Ed.2d 766] (1980). *532 American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); see Izod Outerwear, Slip Op. 85-72 at 3.
Where the statutory language is unclear, rules of statutory construction are useful for interpretation. Of utmost concern in these situations is the legislative intent. Any rule of construction resulting in an interpretation contrary to that concern is subservient to the legislative intent. One such rule of statutory construction is known as ejusdem generis. It is "applicable whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named...." United States v. Damrak Trading Co., Inc., 43 CCPA 77, 79, C.A.D. 611 (1956).
DRI, in its summary of argument, emphatically states:
There is no dispute between the parties insofar as both agree that the validity of the Government's classification of the subject merchandise as "luggage" is totally dependent upon whether said merchandise is encompassed by the definition in the Tariff Schedules in schedule 7, part 1, subpart D, headnote 2(a)(ii), which, in part, provides that the article must be "designed to be carried with the person."
Plaintiff's Brief at 36 (emphasis added). This appears to be the key issue. But DRI appears to confuse the language of the statute in its continuing argument by relying on the primary design of the tool chest as the eclipsing and excluding factor that removes the tool chest from the 2(a)(ii) category. Not to be overlooked are the five words that precede "designed to be carried with the person" and which words shed light on the issue at hand; these words are ", and like containers and cases ..." The emphasis in this latter part of 2(a)(ii) is on the antecedents modified by the qualifying clause "designed to be carried with the person." With this confusion settled, it is appropriate to look at headnote 2(a)(ii).
The headnote at issue states:
2. For the purposes of the tariff schedules
(a) the term "luggage" covers
(i) travel goods, such as trunks, hand trunks, lockers, valises, satchels, suitcases, wardrobe cases, overnight bags, pullman bags, gladstone bags, traveling bags, knapsacks, kitbags, haversacks, duffle bags, and like articles designed to contain clothing or other personal effects during travel; and
(ii) brief cases, portfolios, school bags, photographic equipment bags, golf bags, camera cases, binocular cases, gun cases, occupational luggage cases (physicians', sample, etc.), and like containers and cases designed to be carried with the person, except handbags as defined herein;
Schedule 7 at headnote 2(a).
This Court has held:
[w]here there is an enumeration of specific words of description ... followed by a general term ... the rule of ejusdem generis aids in statutory interpretation.... Under the rule of ejusdem generis, which means "of the same kind", where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified.
Izod Outerwear, Slip Op. 85-72 at 11 (examples and citations omitted). For present purposes, this Court must establish the common characteristics found in "luggage" as enumerated in 2(a)(ii) and determine if the tool chests retain these qualities and confirm their classification under item 706.62, TSUS. See id. at 11-12.
Headnote 2(a) provides the definitional guidance for defining "luggage" as classified under item 706.62, TSUS, which Customs has determined is the proper classification of the tool chests. The exemplars listed in 2(a)(ii) represent a catergory of containers or cases which are designed to store, organize, and protect those contents from which the containers derive their name. Indeed, this Court has observed:
*533 The exemplars in subsection (i) are all articles customarily used for travel,....
The exemplars in subsection (ii) are containers or cases which are designed to hold specific items which give them their names: brief cases to hold papers, school bags to hold school articles, golf bags to hold golf equipment, gun cases to hold guns, camera cases to hold cameras, etc.... The provision does not embrace all containers and cases designed to be carried with the person, but only those ejusdem generis with those enumerated.
Adolco Trading Co. v. United States, 71 Cust.Ct. 145, 154, C.D. 4487 (1973).
This Court, in Adolco, clearly enunciated the exemplars listed in 2(a)(ii) represent a category of "containers or cases which are designed to hold specific items which give them their names." Id. In determining whether an item is embraced within a class, courts look to the enumerated articles to ascertain the characteristic which they possess in common, and if there is such, whether the article involved has this characteristic. Kotake Co., Ltd. v. United States, 58 Cust.Ct. 196, 199, C.D. 2934, 266 F.Supp. 385, 387-388 (1967).
After careful study of the listed items in 2(a)(ii), consideration of the doctrine of ejusdem generis, and close scrutiny of the tool chest in question, this Court finds the tool chest is properly classified "luggage" under item 706.62, TSUS, existing as "like containers and cases designed to be carried with the person...." akin to the exemplars listed in 2(a)(ii). The tool chest is designed to organize, store, and protect tools; the very items from which the chest derives its name. The tool chest is also "designed to be carried with the person" from place to place or job to job, around or outside the home. The tool chest may not be used by a tradesman to carry from place to place in his profession, but it is clearly contemplated the chest will be used by the average home handyman in a transportable manner as his needs require. Although the primary design may not be tailored to this portable function, the portability is not the only factor in the classification of the tool chest. The question is not only one of portability but whether or not the item at issue does have characteristics in common with the enumerated articles. This Court holds that it does.
DRI has neither sustained its burden of proving Customs' classification is erroneous, see 28 U.S.C. § 2639(a)(1) (1986), nor convinced this Court its proposed alternative classifications are correct. The bulk of DRI's argument has gone to proving the primary design and function of the tool chest is for the purpose of organizing and protecting tools. DRI concedes "it can be said that the handle on the subject tool chest gives it the intrinsic capacity to be `carried with the person;' however, as a matter of law, that in itself is not sufficient for classification as luggage." Plaintiff's brief at 46. This does not run counter to the language of 2(a)(ii): "and like containers and cases designed to be carried with the person."
Customs' classification has been scrutinized alone and in comparison with DRI's alternatives and the language of TSUS. The Customs Service was correct in its classification of the tool chest under item 706.62, TSUS, as "luggage" defined in headnote 2(a)(ii).
CONCLUSION
For the reasons stated, the complaint of plaintiff is dismissed, and the decision of the Customs Service and the assessment of duties thereunder is sustained.
Judgment will be entered accordingly.
NOTES
[1] Schedule 7, Part 1, Subpart D, item 706.62 provides in pertinent part:
Luggage and handbags, whether or not fitted with bottle, dining, drinking, manicure, sewing, traveling, or similar sets; and flat goods:
* * * * * *
Of other material:
* * * * * *
Other:
* * * * * *
Other ....... 20% ad val.
706.62
[2] Schedule 6, Part 3, Subpart G, item 657.25, pursuant to General Headnote 3(c), provides, in pertinent part:
Articles of iron or steel, not coated or plated with precious metal:
* * * * * *
Other articles:
* * * * * *
Other:
* * * * * *
Other ...... [Free]
A 657.25
[3] Schedule 6, Part 3, Subpart G, item 657.25, not subject to preferential treatment, provides in pertinent part:
Articles of iron or steel, not coated or plated with precious metal:
* * * * * *
Other articles:
* * * * * *
Other:
* * * * * *
Other .... 7.6 ad val.
657.25
[4] Schedule 7, Part 4, Subpart A, item 727.55, provides in pertinent part:
Furniture, and parts thereof, not specially provided for:
* * * * * *
Other ...... 7% ad val.
727.55
[5] Ejusdem generis is a "rule of statutory construction ... that where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. It is invoked as an aid to statutory construction and is applicable when doubt arises as to whether a given article is to be placed in a class of which some individual subjects are named." 2 R. STURM, CUSTOMS LAW AND ADMINISTRATION § 51.10 at 49 (3rd ed. 1986); see Izod Outerwear, Div. of General Mills, Inc. v. United States, ___ CIT ___, Slip Op. 85-72 (July 23, 1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265420/ | 657 F.Supp. 336 (1987)
BANFF, LTD., f/k/a Sweater Bee by Banff, Ltd., Plaintiff,
v.
FEDERATED DEPARTMENT STORES, INC., and Bloomingdale's, a division of Federated Department Stores, Inc., Defendants.
No. 86 Civ. 3635 (RWS).
United States District Court, S.D. New York.
March 31, 1987.
*337 Dennis Grossman, New York City, for plaintiff; Eileen King, of counsel.
Kuhn, Muller and Bazerman, New York City, for defendants; Steven H. Bazerman, Frank D. Decolvenaere, of counsel.
SWEET, District Judge.
On May 7, 1986, plaintiff Banff, Ltd. ("Banff") filed this action under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), to enjoin defendant Bloomingdale's, a division of Federated Department Stores, Inc. ("Bloomingdale's"), from using a false designation of origin on women's wearing apparel. By opinion dated June 5, 1986 (reported at 638 F.Supp. 652), this court granted Banff's request for a preliminary injunction against Bloomingdale's use of the mark "B Wear," in the typestyle then being used by Bloomingdale's, on the grounds that it infringed on Banff's prior use of the trademark "Bee Wear." Banff now seeks a permanent injunction enjoining the defendants from infringing Banff's "Bee Wear" mark and from using any trademark likely to cause confusion with its "Bee Wear" mark, including Bloomingdale's new trademarks "B Wear" and "b Wear," and seeks dismissal of the defendants' counterclaims. For the reasons stated below, the request for a permanent injunction is granted in part and denied in part, and the counterclaims are dismissed.
In order to eliminate the delay of extended discovery and trial, the parties have stipulated to waive oral testimony and to submit as evidence the verified complaint, the declarations and exhibits filed on the preliminary injunction motion, and any admissions in the pleadings, correspondence, and memoranda. The only materials before the court that were not presented in connection with the motion for a preliminary injunction are plaintiff's and defendants' memoranda of law in connection with the request for a permanent injunction. *338 Because this court's June 5, 1986 opinion stated factual findings based on the same evidence that is now before the court, this opinion will incorporate those findings and address only those factual and legal aspects of the case that require a different result.
In deciding whether to enter a permanent injunction, the court must determine whether the plaintiff has succeeded on the merits of its claim and whether a balancing of the equities involved favors the grant of injunctive relief. Metro Kane Imports, Ltd. v. Rowoco, Inc., 618 F.Supp. 273, 275 (S.D.N.Y.1985); Sierra Club v. Alexander, 484 F.Supp. 455, 471 (N.D.N.Y. 1980), aff'd without opinion, 633 F.2d 206 (2d Cir.1980). This court has already concluded that Banff has demonstrated likelihood of success on the merits and that the equities favor the grant of injunctive relief to Banff, which is particularly vulnerable to the threat of irreparable harm. See 638 F.Supp. at 658. Defendants argue that the court erred on several factual and legal matters in its June 5, 1986 opinion.
The Connaught Decision
The first question raised by the memoranda of law is whether the Second Circuit's recent opinion in American Cyanamid Corp. v. Connaught Laboratories, Inc., 800 F.2d 306 (2d Cir.1986) requires re-examination of the conclusion that the Banff and Bloomingdale's marks are confusingly similar. In Connaught, the marks in issue were plaintiff's HIB-IMUNE and defendant's HibVAX trademarks for identical vaccines that immunize against Haemophilus influenza type b diseases. One generic term for such diseases is "Hib." 800 F.2d at 307. The Second Circuit held that:
A trademark holder cannot appropriate generic or descriptive terms for its exclusive use, and a trademark infringement finding thus cannot be based on the use of a generic or descriptive term such as "Hib" ... As a result ... any likelihood of confusion between HibVAX and HIB-IMUNE, and any consequent finding of infringement, must be based on a similarity between the suffixes "VAX" and "IMUNE."
Id. The Second Circuit reversed the issuance of a preliminary injunction, finding that the suffixes are of different length, sound, and appearance. Even if the suffixes were close in intended meaning and concept, the court found that they were wholly descriptive.
Even if Connaught were seen as a directive to compare only the "Bee" and "B" of "Bee Wear" and "B Wear." "Bee" and "B" are both one syllable, identical in oral speech, and, when viewed separately rather than side by side, present the same overall impression. See Paco Rabanne Parfums, S.A. v. Norco Enterprises, Inc., 680 F.2d 891, 893 (2d Cir.1982); American Home Products Corp. v. Johnson Chemical Co., 589 F.2d 103, 107 (2d Cir.1978). Many customers, when recalling that they have seen the "Bee Wear" label, may easily forget the exact spelling of the word, remembering the pronunciation instead.
Although defendants urge the court to interpret Connaugth as restricting comparison of the two marks to "Bee" and "B," the non-generic terms of the trademarks, for purposes of determining both similarity and priority, such an approach is contrary to logic and the prevailing authorities. Connaught did not purport to change the long-standing doctrine that the non-generic components of a mark must be compared, but in the context of the overall composite mark. 2 McCarthy, Trademarks and Unfair Competition § 23.15(G), p. 89 (2d ed. 1984). It merely stated the rule that a finding of infringement cannot rest on the use of the same generic term alone, when the other terms are totally dissimilar.
Furthermore, to conclude that "Bee" and "B" alone should be compared for purposes of determining priority would dictate the result. Because Bloomingdale's has used the letter "B" as a symbol of Bloomingdale's for several decades, it could combine "B" in any typestyle with any generic term and claim priority over similar marks. Therefore, for purposes of evaluating both similarity of marks and claims of priority, the "overall impression," Paco Rabanne, *339 supra, 680 F.2d at 893, of the entire mark must be examined.
Good Faith
In its June 5, 1986 opinion, this court concluded that the factor of good faith did not weigh unequivocally in favor of either party. See 638 F.Supp. at 657. Nevertheless, the opinion did state that:
One factor which slightly tips the balance in Banff's favor is the inference which may be drawn from the typescript of the label which resembles Banff's mark more than it does any of Bloomingdale's previous advertisements of its own initial in conjunction with private label goods.
Id. Defendants argue that, contrary to the court's finding, Bloomingdale's has used this style of "B" as a symbol for Bloomingdale's before. As defendants point out, the "B" used on the Bloomingdale's label is a standard serif type style that has been used in advertisements dating from April, 1984 for Bloomingdale's "B-Line" private label women's hosiery. It is not a case where defendants have recently adopted a distinctive type style used exclusively by another party. Nevertheless, Bloomingdale's has used the "B" over the years in two predominant and distinctive styles the "ribbon B" and the more recent lower case "b." The choice of a more commonplace "B" when these two distinctive styles were available, in conjunction with Bloomingdale's knowledge of the "Bee Wear" mark, confirms this court's earlier conclusion that Bloomingdale's was not acting in complete good faith.
Jurisdiction over the Third Counterclaim
The defendants' third counterclaim in its amended answer seeks a declaratory judgment that Banff may not use the "B Wear" mark or the defendants' "B" or "b" in Banff's "Bee Wear" mark. Banff argues that this is not a case or controversy within the meaning of Article III of the Constitution, since Banff neither uses nor used nor intends to use a "B Wear" or "b Wear" mark or the distinctive Bloomingdale's "B" or "b" in Banff's "Bee Wear" mark.
According to the parties, Banff asserted in settlement discussions its right to use "B Wear" and the Bloomingdale's "B" and "b." Nevertheless, the assertion of a right to use a particular mark, without more, does not give rise to a justiciable controversy. Banff has not stated that it intends to use the marks in question. Without actual use or the immediate intention to use the marks, there is no justiciable controversy. See Wembley, Inc. v. Superba Cravats, Inc., 315 F.2d 87, 89-90 (2d Cir.1963).[1] The third counterclaim is therefore dismissed, without prejudice to reopen should defendants learn of a definite intent on the part of Banff to take immediate action to use the marks at issue.
Scope of the Injunction
In its June 5, 1986 opinion, the court excluded the lower case "b" commonly seen in Bloomingdale's advertising from the scope of the preliminary injunction. The parties have not presented any new evidence or arguments which convince the court to change its initial determination of the injunction's scope.
At that time, however, this court addressed only the use of the lower case "b", because Bloomingdale's proposed only that it would introduce a new "b Wear" label using that print style. Bloomingdale's now proposes that, for purposes of the permanent injunction, the court exclude both the lower case "b" and the "ribbon B." Both typestyles are distinctive and widely used by Bloomingdale's. Therefore, for the reasons discussed in the June 5 opinion, the permanent injunction against the use of a "B Wear" label will not be extended to a label using a "b" or "ribbon B" in the typescripts featured in other Bloomingdale's advertising.
For the foregoing reasons; the permanent injunction is granted in part and denied *340 in part, the first and second counterclaims are dismissed with prejudice, and the third counterclaim is dismissed without prejudice. Banff's request for attorneys' fees is denied, since, even assuming that Section 35 of the Lanham Act, 15 U.S.C. § 1117, applies to a Section 43(a) action, this is not an "exceptional case" in which the court may award reasonable attorneys' fees. 15 U.S.C. § 1117. The parties are directed to submit a proposed judgment on notice within ten (10) days.
IT IS SO ORDERED.
NOTES
[1] Bloomingdale's asserts that Banff has admitted the existence of an actual controversy by failing to deny the jurisdictional allegations in the third counterclaim. Whether or not Banff has made such an admission, this court cannot exercise jurisdiction when it finds that the controversy is nonjusticiable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265424/ | 657 F.Supp. 1571 (1987)
Allen ANDERSON, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
No. 84 CIV. 3214 (PKL).
United States District Court, S.D. New York.
April 24, 1987.
*1572 Stevens, Hinds & White P.C., New York City (Richard J. Harvey, of counsel), for plaintiff.
Peter L. Zimroth, Corp. Counsel, New York City (Charlotte Biblow, of counsel), for defendants.
LEISURE, District Judge:
This case arises out of an incident which occurred during the 1982 strike of the Center for Problems of Living (the "Center") by employees who were members of Union Local 1199. Plaintiff Allen Anderson, a nurse clinician at the Center, was arrested by officers of the New York Police Department (the "NYPD") and charged with several criminal violations, which were subsequently dropped. Anderson brings this action pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1988 for alleged deprivations of his civil rights secured by the First, Fourth, Fifth, Eighth, and 14th Amendment to the United States Constitution, and for pendent state claims. Specifically, plaintiff, a black male, claims that the physical violence, allegedly accompanying his arrest, as well as the arrest and prosecution itself, were manifestations of a policy of civil rights deprivations against racial minorities and those in minority neighborhoods. Plaintiff claims that the alleged policy was promulgated, implemented and enforced by the defendants: the officers involved in the arrest, other officers, superior officers, the former and current Police Commissioner, the Mayor of New York, the members of the Civilian Complaint Review Board (the "CCRB"), and the City of New York (the "City").[1]
*1573 The action is now before the Court on a motion for summary judgment and dismissal, advanced on behalf of all defendants, with the exception of the arresting officer, Officer Appel. For the reasons set forth below, defendants' motion is granted with regard to all defendants, except those actually present at the scene of the incident.
FACTUAL BACKGROUND
The following facts are developed from the virtually identical Local Rule 3(g) statements submitted by the parties to this motion. Plaintiff a black male was a nurse clinician at the Center. In or around September, 1982, employees of the Center, including plaintiff, went on strike; the work stoppage lasted several months. NYPD officers were assigned to strike detail to oversee the pickets. Prior to the incident of October 13, 1982, which forms the basis of this action, there were no arrests of strikers or violent incidents at the Center, within the time frame involved herein.
At approximately 5:30 p.m. on October 13, 1982, plaintiff was arrested by Officer Appel, who was assisted by Officer Miller and others. Plaintiff had never been arrested before. During the arrest, plaintiff sustained injuries which caused him to be transported from the 30th Precinct to Columbia Presbyterian Hospital, where he was treated and released back into police custody. Plaintiff was charged with Assault in the Second Degree, Riot in the First Degree, Resisting Arrest and Reckless Endangerment in the Second Degree. He was later released on bond. On February 10, 1983 all criminal charges against plaintiff were dropped.
A complaint was filed with the CCRB on behalf of Anderson, alleging police misconduct during the arrest. Although plaintiff was contacted by CCRB representatives twice, he declined to speak with CCRB investigators pending the conclusion of the criminal case against him. The CCRB investigation was closed, due to lack of victim cooperation, prior to the dismissal of charges, and was never reopened. No complaint was brought with the Internal Affairs Division of the NYPD.
The major area of disagreement between the parties concerns the actual events surrounding the arrest, which are not clearly described or substantively supported by either side; accordingly, these facts must be pieced together from the incomplete deposition transcripts submitted by the parties. Defendants allege that plaintiff was engaged in violent behavior directed against those crossing the picket line, Affidavit of Charlotte Biblow, Esq., sworn to on March 30, 1986 ("Biblow Aff."), Exhibit F, attached thereto, at 7; that plaintiff struck Officer Appel when the officer asked him to stop, and that plaintiff resisted arrest. Affidavit of Richard J. Harvey, Esq., sworn to on March 30, 1986 ("Harvey Aff."), Exhibit A, attached thereto, at 1. Defendants describe an arrest scene with outnumbered police officers and a mob of angry strikers hurling insults, obscenities and other more substantial objects. Id.
Plaintiff, on the other hand, alleges that he and other strikers were simply maintaining a presence at the strike site, id. Ex. B. at 1; Biblow Aff. Ex. F. at 2, when Officer Appel, unprovoked, pushed plaintiff, Biblow Aff. Ex. F. at 12, and threw him to the ground. Harvey Aff. Ex. A. at 1. Plaintiff claims Appel, Miller and other officers, then kicked and beat him while he was lying on the ground, id. at 3-4; Biblow Aff. Ex. G. at 2, arresting him. Plaintiff further claims that Sergeant Gunther and Detective Lewis either participated directly in the incident or had immediate command or supervision of the officers involved.
*1574 LEGAL DISCUSSION
A. Plaintiff's Four Theories of Liability
Plaintiff's action is predicated upon four theories of liability, each relevant as to one or more of the defendants.[2] Plaintiff first argues that this incident is not merely an isolated act by an individual police officer, or group of police officers, but rather is reflective of a general policy of racially motivated discrimination, hostility, and violence on the part of the City and the other defendants. P. Memo. at 4. Second, plaintiff claims that the incident resulted from inadequate training of the officers involved. Plaintiff's third theory of liability is that his arrest and injury resulted from inadequate and ineffective supervision of the officers involved in the arrest. P. Memo. at 6. Finally, plaintiff asserts that failure to discipline the officers, and others who commit such acts, indicates that a discriminatory policy exists and that this policy caused the behavior which violated plaintiff's civil rights. P. Memo. at 7.
1. General City Policy of Racially Motivated Discrimination, Hostility and Violence
To hold a municipality liable under plaintiff's first theory, plaintiff must prove the municipality caused, in some meaningful sense, the harm suffered. Generally, this requires that "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated...." Monnel, supra, 436 U.S. at 690, 98 S.Ct. at 2035; Oliveri v. Thompson, 803 F.2d 1265, 1279 (2d Cir. 1986); Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34, 38 (2d Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986); Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984). Furthermore, there must be a "causal link between an official policy or custom and the plaintiff's injury...." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Martin v. City of New York, 627 F.Supp. 892, 895 (E.D.N.Y.1985); Augustyniak v. Koch, 588 F.Supp. 793, 798 (S.D. N.Y.), aff'd 794 F.2d 676 (2d Cir.1984); see also Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976). This same reasoning applies to supervisory personnel. "The plaintiff must show either that the official was personally involved in the unlawful actions or that there is some causal connection between an act of the official and the alleged violation." McQurter v. City of Atlanta, Ga., 572 F.Supp. 1401, 1415 (N.D.Ga.1983), app. dismissed, 724 F.2d 881 (11th Cir.1984) (citations omitted); Carter v. Harrison, 612 F.Supp. 749, 758-59 (E.D.N.Y.1985).
Plaintiff cannot infer a policy from the alleged violation of his own civil rights. "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." Oklahoma City v. Tuttle, 471 U.S. 808, 823-4, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985); Martin, supra, 627 F.Supp. at 896-97; Loza v. Lynch, 625 F.Supp. 850, 853 (D.Conn.1986).
2. Inadequate Training and Supervision
The law governing plaintiff's second and third theories his assertions of inadequate training and supervision on the part of the police officers is similar to that governing his first theory of liability. Once again, a single incident alone does not prove the inadequacy of training and supervision and, again, proof of such a claim does not give rise to liability. Tuttle, supra, 471 U.S. at 823, 105 S.Ct. at 2436; see Martin, supra, 627 F.Supp. at 896-97; Loza, supra, 625 F.Supp. at 853.
Early cases in this area of the law permitted a finding of liability based upon the idea that "a single, unusually brutal or egregious beating administered by a group *1575 of municipal employees may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to deliberate indifference or `gross negligence' on the part of officials in charge." Turpin v. Mailet 619 F.2d 196, 202 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980) (citations omitted). More recently, however, the Supreme Court held that a single incident even one involving excessive force could not prove the existence of a policy of insufficient training. Tuttle, supra, 471 U.S. at 823, 105 S.Ct. at 2436. To follow the early cases would undermine Monell and impose liability on what amounts to a respondeat superior theory. Therefore, the Supreme Court reaffirmed the prerequisite of finding a policy before extending the liability of municipalities. Tuttle, supra, 471 U.S. at 823, 105 S.Ct. at 2436. Moreover, Tuttle states that, in order to hold a municipality liable, the policy must not only exist, but it must either (1) be unconstitutional, in and of itself, or (2) be "affirmative[ly] link[ed]" with the unconstitutional acts underlying the dispute. Id.
Again, as with the previously described theories of liability, something more than a single incident is needed to prove that training was inadequate. In Sager v. City of Woodland Park, 543 F.Supp. 282, 297-98 (D.Col.1982), the Court was provided with evidence that indicated that, not only were training procedures in a film outlining apprehension techniques incorrect, but that this was known by city officials, who, nevertheless, continued to use the film. The technique in question was used by the defendant police officer in Sager and resulted in the fatal shooting of a suspect. Similarly, in McQurter, supra, 572 F.Supp. 1420-21, lack of training regarding the use of a lethal restraint technique a choke hold was shown to have been a factor in the death of a suspect.
Something more than a single incident is also needed to hold the municipality and its officials liable for lack of supervision of police officers. Under Turpin, "absent more evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality such as ... excessive use of force." 619 F.2d at 202 (emphasis added) (citations omitted); see also Tuttle, supra, 471 U.S. at 821, 105 S.Ct. at 2435; Cattan v. City of New York, 523 F.Supp. 598, 600-01 (S.D.N.Y.1981).
Supervisory personnel have been found liable, based on a single violative incident, if they are present during the incident and fail to stop behavior violative of constitutional rights. Such failure to supervise, if so "grossly negligent" that it can be termed "deliberate indifference," can be of constitutional magnitude. Owen v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Cattan, supra, 523 F.Supp. at 600-01. While this duty to supervise is most clearly attributable to supervisory personnel, it falls upon any officer witnessing unconstitutional behavior. McQurter, 572 F.Supp. at 1415.
3. Failure to Discipline
The analysis of plaintiff's fourth theory of liability, for failure to discipline, is consistent with those already discussed. Under this fourth theory, consistent failure to discipline gives rise to a finding of an "implicit policy." Turpin, supra, 619 F.2d at 200-01. Thus, if "senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation...." Id., at 201. This complacency in the face of repeated violations amounts to "tacit authorization" of the offensive acts. Id.; Loza, supra, 625 F.Supp. at 854. The Second Circuit recently reaffirmed this principle by holding that "municipal inaction such as persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell." Bastista, supra, 702 F.2d at 397 (citations omitted). Plaintiff, however, must link the behavior in question to the policy of failure to discipline for example, the officer must have known of the policy *1576 at the time he allegedly committed the civil rights violations.
At the same time, it is not improper to fail to punish an officer for a single incident of illegal behavior. Turpin, supra, 619 F.2d at 202-03. In Turpin, the Second Circuit refused to find an implied policy of failure to discipline where the officer involved in the alleged civil rights violation was promoted rather than disciplined shortly after he was found liable for violating § 1983. The Second Circuit indicated that there are many reasons for not disciplining or even promoting an officer after a single incident, and that only after a pattern of such failures to discipline evolved could a municipal policy be imferred. Id. at 203; see also McQurter, supra, 572 F.Supp. at 1419. Similarly, a superior officer can only be liable for acts of subordinates "if he persistently fails to discipline subordinates in the face of knowledge of their propensity for improper use of force." McQurter, supra, 572 F.Supp. at 1419 (citation omitted).
Mindful of the foregoing standards of substantive law, the Court must now apply them within the framework of the facts of the instant case. The Court notes, however, that at this juncture, the question before the Court is not whether plaintiff has provided enough evidence to establish his civil rights claims. The Court only faces the question whether defendants have satisfied their burden so as to be entitled to summary judgment.
B. The Standard for Summary Judgment
The standard for summary judgment is outlined in Fed.R.Civ.P. 56(c). Pursuant to Rule 56(c), summary judgment shall be rendered if the pleadings and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 57 (2d Cir.1985); R.G. Group Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985)).
In order to grant summary judgment, a "court must also determine that any unresolved issues are not material to the outcome of the litigation." Knight, supra, 804 F.2d at 11. "[T]he mere existence of factual issues where those issues are not material to the claims before the court will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam).
As the Supreme Court has noted, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which were designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1) (citation omitted). The Supreme Court has recently provided guidance in applying the standard for granting a motion for summary judgment. See Celotex, supra, 106 S.Ct. 2548; Anderson, supra, 106 S.Ct. 2505; Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In Celotex, the Court, reversing the decision of the District Court of Columbia Circuit, held that:
[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, and 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 *1577 an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.
106 S.Ct. at 2552-53.
In Anderson, the Court, in considering the question of whether the clear and convincing evidence requirement under libel law must be considered by a court ruling on a motion for summary judgment, noted that "the substantive law will identify which facts are material" for the purposes of summary judgment. 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted).
The Court also held in Anderson that:
[S]ummary judgment will not lie if the dispute about a fact is "genuine" that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Id. In addition, the Court noted that there "is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may not be granted." Id. at 2511 (citations omitted). Therefore, the standard for summary judgment "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.
Moreover, under Rule 56(e), this Court, in deciding a motion for summary judgment, may only consider "facts as would be admissible in evidence." Fed.R.Civ.P. 56(e); see, e.g., Brokers' Assistant v. Williams Real Estate Co., 646 F.Supp. 1110, 1118 n. 32 (S.D.N.Y.1986). Mindful of the foregoing procedural principles, the Court now turns to the factual bases of plaintiff's claim, in the context of the substantive law of municipal liability.
C. The Admissible Evidence Presented by Plaintiff is Insufficient to Defeat Defendants' Summary Judgment Motion
1. The Congressional Report
Plaintiff bases his allegations regarding the existence of a municipal policy the linchpin to most of his claims against the majority of the defendants upon the Report on Hearings in New York City on Police Misconduct by the Subcommittee on Criminal Justice (the "Subcommittee") of the Committee on the Judiciary of the United States House of Representatives, Ninety-Eight Congress, Second Session (1984) (the "Report"). Harvey Aff. Ex. B. The Report is based on two open session hearings held by the Subcommittee on NYPD misconduct. During the two sessions one held in September, 1983, and the other in November, 1983 members of the Subcommittee heard testimony from: persons alleging police misconduct; officers alleging misconduct by fellow officers; Mayor Edward Koch; Police Commissioner Robert McGuire; and a report of the Police Benevolence Fund. Id. at 3-4. The Report, summarizing these hearings, is an indictment of a system seen as encouraging through failures of supervision, training and discipline a pattern of illegal arrest, harassment, foul language and racial slurs, and brutality, aimed at minorities by white police officers. Therefore, the Report certainly lends support to plaintiff's allegation that there exists an implicit, but wellknown, policy condoning, if not encouraging, such behavior.[3] Because the single arrest of plaintiff cannot, in and of itself, establish any of plaintiff's claims, except those against the officers involved directly *1578 in his arrest, plaintiff's case against the rest of the defendants turns on the Report.
Although, it is clear that the Report supports plaintiff's position, it is unclear whether the Report undoubtedly hearsay[4] is admissible to prove plaintiff's allegation that such a discriminatory policy exists.[5] The only exception to the hearsay rule which might be applicable to the instant Report is that involving "public records and reports." This exception includes:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Fed.R.Evid. 803(8).
The "public records and reports" exception, like the other exceptions to the hearsay rule, is found in the common law and the Federal Rules of Evidence "is premised ... on the principles of necessity and trustworthiness." Weinstein and Berger, Weinstein's Evidence, ¶ 803(8)[01], p. 233 (citing Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir.1952); Vanadium Corp. v. Fidelity & Deposit Co., 159 F.2d 105, 109 (2d Cir.1947)). More specifically, this "exception is recognized because of necessity or the inconvenience which would result from always requiring the testimony of the official in person to the facts he has recorded; and his official duty supports the requirement that there be found some circumstantial probability of trustworthiness." Vanadium Corp., supra, 159 F.2d at 109. For these strong policy reasons, the records of public officials are admissible in court despite their status as hearsay.
Rule 803(8) recognizes three categories of public records which satisfies the exception: "A) records of the office's or agency's own activities, B) records of `matters observed pursuant to duty imposed by law' and, C) evaluative reports." Weinstein's Evidence, supra, 803(8)[01], p. 235. The instant Report could be included solely under the last of these three exceptions.[6]
"Rule 803(8)(C) applies only to investigative reports based on `factual findings.'" Wetherill v. University of Chicago, 518 F.Supp. 1387, 1390 (N.D.Ill.1981). "`Factual findings' as used in Rule 803(8)(C) has been and should be given an expansive reading." Id. (citation omitted). Moreover, even if the instant Report should meet this requirement of Rule 803(8)(C), the Report's contents may still be inadmissible if the sources of information or other circumstances surrounding the Report indicate a lack of trustworthiness or reliability. Factors to consider in deciding whether to admit the evaluative findings of the Report under Rule 803(8)(C) are "the timeliness of the investigation, [the special skill or experience of the reporter,] whether a hearing was held in conjunction with [the investigation], and the motivation of the officials conducting the investigation." Weinstein's Evidence, supra, at ¶ 803(8)[03] at p. 254 (footnote omitted). Applying the aforementioned factors to the instant Report the Court can only conclude that the Report is unreliable and therefore, inadmissible hearsay.
The first factor the timeliness of the Reportis not a problem for the Report, at *1579 least in one limited respect; the hearings, upon which the Report is based, took place in 1983 and covered the period from 1979 through 1983. The arrest underlying this action occurred in 1982, during the period of time covered in the hearings and reports. However, this fact does not really address the use of the concept of "timeliness." The Subcommittee did not investigate or examine, in a timely manner, reports regarding the instant set of facts and how, if at all, they are related to the alleged general policy of discrimination. Accordingly, on balance, it is unclear whether the element of timeliness cuts for or against the admissibility of the Report.
In the context of a report of a Congressional Subcommittee or a Committee Report, the second element of trustworthiness and reliability the special skill or experience of the reporter is also problematic. Investigations by these committees are commonplace and members of such committees develop, over years of participation, expertise in the committee's policy area. Whether this provides committee members with any special expertise in evaluating witnesses, especially regarding their credibility or accuracy of recall, is questionable. The reliability of such a committee's judgment is even more tenuous where, as here, the Subcommittee members lacked personal or actual knowledge of the events about which testimony was being taken and heard, primarily, only one side of the story. Similarly, while Congressional hearings are so termed, they do not fit closely the judicial meaning of hearings, at least in comparison to the hearings held by administrative agencies in their quasi-judicial capacity.
Finally, the motivation underlying the generation of the instant Report, in and of itself, outweighs the previously discussed factors, at least for the purposes of this action. Obviously the "witnesses" at these hearings were self-interested in their testimony. While the Court respects efforts at legislative fact-finding, nevertheless, it cannot be denied that hearings and subsequent reports are frequently marred by political expediency and grandstanding. As the District Court for the Western District of North Carolina noted:
[C]ongressional committee hearings are oft time conducted in a circus atmosphere, with a gracious plenty of posturing by the politicians for T.V. publicity in large part for benefit of constituents back home....
This "circus" is hardly conducive to the development of facts, but more to entertainment of the the television audience. The Court does not look to the reports of such activities as productive of any facts which would persuade the Court one way or the other.
Knight Pub. Co. v. U.S. Dept. of Justice, 631 F.Supp. 1175, 1178 (W.D.N.C.1986) (declining to consider as "facts," to illustrate and support allegations of bad faith in a law enforcement investigation, statements and opinions included in a Report of the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives together with Dissenting Views Ninety Eight Congress Second Session). The Report offered as evidence in this action suffers from the same apparent motivational flaws as discussed by the District Court of the Western District of North Carolina.
In sum, because the Report is the result of hearings which lack procedural due process protections, because the Report articulates findings based upon a dubious, highly charged process of essentially "interviewing" interested parties, and because of the serious policy implications[7] of admitting the Report in evidence, this Report has no place as evidence in the instant action. The Report lacks the ordinary indicias of reliability, is not based on the personal *1580 knowledge of the reporter, and contains the testimony of interested parties, not experts. This Court, therefore, rules it inadmissible and will not consider it in deciding the instant motion for summary judgment.
2. Plaintiff's Remaining Factual Claims
Aside from the aforementioned Report, plaintiff has not made any, but the most conclusory allegations that there is a City policy of encouraging civil rights violations. As the Court described more fully above, more than a single incident, even one far more violent and injurouseven fatal than the one underlying the instant action, is necessary to demonstrate the existence of such a policy. Except for the Report, which is not admissible evidence, plaintiff makes no attempt to provide any specific, substantive allegations regarding the existence of a policy of civil rights violations in the City.[8] Therefore, this Court grants summary judgment with regard to plaintiff's first theory of liability. The same is true of plaintiff's factual allegations regarding the failure to train, supervise, and discipline theories of liability. However, the Court will treat each of these claims separately because plaintiff makes additional allegations with respect to each of them.
a. Failure to Train
Plaintiff alleges that the failure to train the defendant officers specifically for "strike duty" demonstrates a failure of training. Plaintiff, however, fails to establish why such training is inherently necessary. Plaintiff fails to demonstrate how the patrol of a strike area and the arrest of strikers is significantly different from the patrol of other areas and the arrest of other individuals. Such a failure on the part of plaintiff is particularly noteworthy in light of the non-violent history of the strike which provided the backdrop for the instant dispute.
The strike in this case commenced in September, 1982; plaintiff was arrested on October 13, 1982. Prior to the time of plaintiff's arrest, there had been no arrests or trouble at the strike site. Perhaps if the the strike location had been plagued by prior violent confrontation, dispatching rookies who lacked special training to handle such violence would indicate a failure of training sufficient to establish a constitutional violation. But that is not the situation now before the Court.[9] Summary judgment is therefore granted with regard to this theory of liability.
b. Failure to Supervise
A pattern of failure to supervise is necessary to hold the municipality liable. Again plaintiff has failed to provide sufficient facts to establish the pattern element of this theory of liability. Similarly, since an individual not present at the scene of the incident cannot be held individually liable for failure to supervise, all defendants in the instant action, not present at the scene, cannot be liable for failure to supervise. Therefore, the Court grants defendants' motion for summary judgment with respect to defendants not present at the scene of the accident.
The courts have found liability, however, for the failure of supervisory personnel, *1581 and other officers present at the scene, to intercede. This liability has been limited to cases where the witnessed behavior was so violative of civil rights that such failure to act in order to stop this behavior, itself, demonstrated a "deliberate indifference" to the rights of the plaintiff on the part of the witnessing officers. Since the extent to which plaintiff's rights were actually violated, at the time of his arrest, involves a set of material facts still in issue, summary judgment with respect to the claims against defendants present at the scene of the arrest is not appropriate and is hereby denied.
c. Failure to Discipline
Finally, plaintiff bases his claim upon the failure to discipline the officers involved in the incident. As the Court described previously, however, failure to discipline an officer or officers for a single alleged incident does not establish a policy of failing to discipline. Plaintiff presents documents from the CCRB in support of his allegation that there existed a pattern of failure to discipline. In particular, these documents indicate that Officer Appel has been the subject of five complaints. However, the Court notes that plaintiff's complaint is the first of the five. Moreover, even if plaintiff proved that these complaints lodged with the CCRB, and their dismissal for a variety of reasons, indicated a policy of failure to discipline, such evidence could not be used to prove the existence of such a policy before the alleged behavior pattern began, much less that Officer Appel knew of this policy and relied upon it in his alleged violation of the rights of plaintiff. Therefore, the Court hereby grants defendants' motion for summary judgment with respect to plaintiff's claim of failure to discipline.
CONCLUSION
For the aforementioned reasons, summary judgment is granted for, and the complaint is dismissed against, all defendants, except the officers actually involved in, or present during, the arrest and alleged beating of plaintiff. Counsel for plaintiff and the remaining defendants are directed to contact the Court for the purposes of scheduling a conference to discuss any remaining pretrial matters.
SO ORDERED.
NOTES
[1] The complete list of defendants includes: the City; Mayor Edward I Koch, individually and in his official capacity; former Police Commissioner Robert McGuire, individually and in his official capacity; Police Commissioner Benjamin Ward, in his official capacity; NYPD Administrators "J", "K", "L", "M", and "N" "Doe", individually and in their official capacities; NYPD CCRB Chairperson Pamela D. Delaney, members Nelson Almonte, Dr. Howard Harris, Philip McGuire, Eugene C. Masci, William E. Perry, Brenda Ross, and Assistant Commissioner/Executive Director Charles J. Adams, individually and in their official capacities; NYPD Captains "E" and "F" "Doe"; NYPD Lieutenant "G" "Doe"; NYPD Officers Appel # 4787, Miller # 27439, Sergeant Gunther # 65, Detective Lewis # 3340; NYPD Officers "A", "B", "C" and "D" "Doe" attached to 30th Precinct; NYPD Officers "S", "T", "U", "V", "W", "X", "Y" and "Z" attached to Neighborhood Stabilization Unit No. 5; New York City Internal Affairs Division Officers "O", "P", "Q" and "R" "DOE".
[2] Plaintiff concedes that defendants cannot be held liable under merely a respondeat superior theory. Plaintiff's Memorandum of Law ("P. Memo.") at 4; see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 692-4, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978) ("a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.")
[3] While plaintiff also relies marginally on a report by the CCRB (with respect to the failure to discipline theory) and the depositions of the officers involved (with respect to the lack of training theory), plaintiff's four arguments primarily hinge on the facts surrounding his own arrest and on the Report.
[4] Federal Rule of Evidence 801(c) defines "Hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c).
[5] The Court notes that despite the obvious importance of the legal question of admissibility, neither side has provided any discussion of the law in this area.
[6] The Report concerns the activities of the NYPD and therefore does not "set forth (A) the activities of the [Subcommittee itself]...." Moreover, the Report considers "(B) matters observed" by certain individuals who were not under a "duty imposed by law" to report such matters (for example, alleged victims of police brutality.)
[7] In particular, if plaintiffs were allowed to use this Report to prove the existence of a municipal policy of discrimination in law enforcement, or even the presence of other incidents besides the one alleged in the action, New York City and its public officials would clearly be unable to obtain summary judgment in any civil rights action alleging police misconduct. The Report, in and of itself, would provide a prima facie case against the City, regardless of the facts of the particular case under consideration. The burden of proof would therefore be shifted from the plaintiff to the defendant. If this shift in the burden of proof is the will of the legislature, it should be enacted by Congress, not through the mere hearings of a subcommittee.
[8] Instead of producing admissible evidence to rebut defendants' motion for summary judgment, plaintiff promises the Court that, presumably at time of trial, he will "present the testimony of competent expert witnesses to the effect that, at the precise time of the events herein complained of, there existed a custom and policy whereby the above-named Defendants treated `less than seriously' allegations of police misconduct and further that racism was `a major factor in alleged police misconduct specifically and in police-community relations generally.'" P. Memo. at 4-5 (quoting the Report at 21). However, plaintiff's decision to not produce this purported evidence at this juncture is fatal to plaintiff's claim. As the Second Circuit noted in Donnelly v. Guion, 467 F.2d 290 (2d Cir.1972), "[a] party opposing a motion for summary judgment simply cannot make a secret of his evidence until trial for in doing so he risks the possibility that there will be no trial. A summary judgment motion is intended to `smoke out' the facts so that the judge can decide if anything remains to be tried." 467 F.2d at 293.
[9] The Court also notes that a claim for failure to train is most commonly raised in the context of the use of specific techniques, not general types of duty. See McQurter, supra, 572 F.Supp. at 1420; Sager, supra, 543 F.Supp. at 297-98. Plaintiff does not here allege that there was a failure to train the defendant police officers in the particular techniques they used during the arrest of plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265429/ | 657 F.Supp. 1113 (1987)
James A. RHINEBARGER, et al.
v.
Robert D. ORR, Governor, State of Indiana, et al.
No. IP 85-1497-C.
United States District Court, S.D. Indiana, Indianapolis Division.
April 7, 1987.
*1114 B. Keith Shake of Henderson, Daily, Withrow & DeVoe, Indianapolis, Ind., for plaintiffs.
David Michael Wallman, Deputy Atty. Gen., State of Ind., Indianapolis, Ind., for defendants.
STECKLER, District Judge.
This matter is before the Court upon cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. This rule states, in part, that:
The judgment sought shall be rendered forthwith 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). The Court, having examined the motions, the memorandums of law and the supporting affidavits, now finds that there is no genuine issue as to any material fact and the defendants are entitled to judgment as a matter of law. Therefore the Court must grant the defendants' motion for summary judgment and deny the plaintiffs' motion for partial summary judgment. The Court now enters *1115 the following findings of fact and conclusions of law.
Findings of Fact
1. The plaintiffs are employees of the Indiana State Police Department and the State of Indiana.
2. The Fair Labor Standards Act ("FLSA") states that employers may not employ certain employees "for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half (1½) times the regular rate at which he is employed." 29 U.S.C. § 207.
3. The Fair Labor Standards Amendments of 1985 ("Amendments") provide that no state or political subdivision of a state shall be liable under the FLSA for minimum pay or overtime violations occurring before April 15, 1986. Pub.L. No. 99-150, reprinted in 1985 U.S.Code Cong. & Ad.News, 99 Stat. 787.
4. Prior to April 15, 1986, members of the plaintiff class were employed for workweeks longer than forty hours. However, these members of the plaintiff class did not receive overtime compensation at the rate of one and one-half (1½) times their regular pay for the excess hours they worked.
Conclusions of Law
Based on the foregoing findings of fact, the Court now makes the following conclusions of law.
1. The plaintiffs' action is barred by the 1985 Amendments to the FLSA. On February 19, 1985, the Supreme Court decided Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). In Garcia, the Court overruled National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and held that the minimum pay and overtime provisions of the FLSA apply to the states, even when they act "in areas of traditional governmental functions," such as police work. Shortly after the Garcia decision Congress passed the 1985 Amendments to the FLSA which "deferred application of the overtime provisions until exactly one year after the mandate in Garcia so that state and local governments [could] make necessary adjustments in their work practices, staffing patterns and fiscal priorities." S.Rep. No. 99-159 at 15 reprinted in 1985 U.S.Code Cong. & Ad.News 651, 663.
2. The 1985 Amendments to the FLSA apply retroactively to relieve the state from liability for unpaid overtime occurring before the Amendments became effective and after the Garcia decision. See Kartevold v. Spokane County Fire Protection District, 625 F.Supp. 1553, 1559-63 (E.D.Wash.1986); Wong v. City of New York, Human Resources Administration, 641 F.Supp. 588, 591 n. 2 (S.D.N.Y.1986).
3. The 1985 Amendments to the FLSA are not unconstitutional.[1] The Amendments do not deprive the plaintiffs of a property interest without due process of law. The plaintiffs did not gain a vested property interest in overtime benefits after the Garcia decision and before the Amendments became effective. A property interest in a statutory benefit has been limited to cases where individuals had enjoyed benefits under the statute. See O'Quinn v. Chambers County, Texas, 636 F.Supp. 1388, 1390 (S.D.Tex.1986). Prior to Garcia the plaintiffs worked outside of the FSLA's requirements without any contractual or statutory right to overtime. Garcia may have created hopes that the plaintiffs *1116-1122 would receive overtime, but it did not create any vested property interests.
Even if the plaintiffs did have a property interest in overtime benefits after the decision in Garcia, Congress acted rationally when enacting the Amendments, thereby giving the plaintiffs all the process that they were due. Id. at 1390. Congress, in deferring the application of the overtime provisions until April 15, 1986, acted to protect the fiscal integrity of the states and their political subdivisions. This is a rational and legitimate purpose.
4. There is no genuine issue as to any material fact and the defendants are entitled to judgment as a matter of law.
Accordingly, by reason of all of the foregoing, the Court hereby
GRANTS the defendants' motion for summary judgment and
DENIES the plaintiffs' motion for partial summary judgment.
IT IS SO ORDERED.
NOTES
[1] Because the Court finds the Amendments constitutional it has not certified to the Attorney General of the United States the fact that the plaintiffs have challenged the constitutionality of the Amendments. Fed.R.Civ.P. 24(c) and 28 U.S.C. § 2403(a) require notice to the Attorney General and an opportunity to intervene when the constitutionality of an act of Congress affecting the public interest is questioned. However, a failure to give the notice does not deprive the Court of jurisdiction to decide the case. See 7C C. Wright, A. Miller & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 1915 (1986). The Court holds that it meets the requirements of Rule 24(c) and § 2403(a) by certifying a copy of this order to the Attorney General and by entertaining his motion for rehearing if he believes that intervention is required. See O'Quinn v. Chambers County, Texas, 636 F.Supp. 1388, 1390 n. 1 (S.D.Tex.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265431/ | 657 F.Supp. 428 (1987)
DISTRICT OF COLUMBIA RETIREMENT BOARD, et al., Plaintiffs
v.
UNITED STATES of America, Defendant.
Civ. A. No. 85-3693.
United States District Court, District of Columbia.
April 6, 1987.
*429 *430 Dennis G. Linder, Dina R. Lassow, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for plaintiffs.
Vincent H. Cohen, Walter A. Smith, David F. Grady, Kevin N. Whitney, Hogan & Hartson, Washington, D.C., for defendant.
MEMORANDUM OPINION
THOMAS F. HOGAN, District Judge.
Plaintiffs[1] brought this action against the United States to establish ultimate responsibility for the present unfunded liability of the District of Columbia Pension Plan. Defendant[2] has moved to dismiss this case, contending that this Court lacks jurisdiction under the Tucker Act, plaintiffs' claims are not ripe for review, and plaintiffs fail to state a claim for relief. In addition, defendant has moved for summary judgment on Count III of the complaint. Oral argument was heard on March 30, 1987. For the reasons stated below, the Court grants defendant's 12(b)(6) motion as to Count IV, and grants defendant's 12(b)(1) motion as to the remaining counts.
BACKGROUND
The pension plan statute at issue covers three separate funds: the police officers and fire fighters' fund, the teachers' fund, and the judges' fund. Originally, Congress established pension plans for these employees pursuant to its plenary power to legislate for the District of Columbia under Art. I, § 8, cl. 17 of the U.S. Constitution. The plans were funded on a "pay as you go" basis, with any additional funds necessary to come from the District. In a "pay as you go" system the funds are not fully invested and no provision is made for projected liabilities. To the extent current contributions cannot meet current obligations, the resulting shortfall is made up each year from general revenues or other stop-gap sources. The "unfunded liability" herein is that figure that represents projected future obligations for pension payments to District employees for which no revenues have been provided under the current statute. Plaintiffs allege that the present value of the total unfunded liability at issue is $5.3 billion.
After grant of Home Rule to the District of Columbia, Congress took up legislation that would allocate the relative liability for the pension system. In the District of Columbia Retirement Reform Act of 1979 ("Reform Act") D.C.Code §§ 1-701 et seq., Congress established three funds and authorized an annual appropriation of $52.07 million per year to meet what the statute defined as the "federal share" of the unfunded liability. D.C.Code § 1-724(a). The "federal share" is further defined as 80% of the unfunded liability for pre-Home Rule retirement pensions, and 33 1/3 % of the unfunded liability for pre-Home Rule disability pensions. D.C.Code § 1-724(e). The statute provides for payment annually from 1980 through 2004, and also provides that the Comptroller General shall determine in 2004 whether the statutorily appropriated amounts were sufficient to meet the "federal share." Id. Plaintiffs do not contend that the specific dollar amounts authorized by the Act have not been appropriated. *431 They assert, however, that the appropriated amount falls short of the percentage federal share of the unfunded liability by $15 million per year.
The Reform Act also provided that any D.C. Pension assets remaining in the original pension funds and not paid out were to be transferred to the newly established, parallel funds. D.C.Code §§ 1-713, 1-714. Plaintiffs assert that the amount of pre-Home Rule contributions to these funds is $359 million, and they claim that the United States has failed to transfer these contributions to the Board.
On November 18, 1985 plaintiffs filed this action, which was immediately stayed to permit settlement negotiations to continue. Plaintiffs filed the same complaint in the United States Claims Court contemporaneously, which continues under a stay. Plaintiffs contend that defendant has failed to transfer the accumulated Fund contributions or to appropriate enough money to meet the federal share of the obligation. Based on these actions and the enactment of the Reform Act, plaintiffs allege (1) breach of contract, (2) breach of fiduciary duty, (3) taking without just compensation, in violation of the fifth amendment, (4) statutory deprivation of property without due process of law, and (5) violation of the Reform Act's federal share provision, D.C. Code § 1-724(e). Plaintiffs invoke this Court's jurisdiction under general federal question jurisdiction, 28 U.S.C. § 1331, the Tucker Act, 28 U.S.C. § 1346(a)(2), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702.
No settlement was reached, and once the Court lifted the stay herein, the United States moved to dismiss under Fed.R.Civ.P. 12(b)(1), contending that the United States Claims Court has exclusive jurisdiction, and under Fed.R.Civ.P. 12(b)(6), on the grounds that no claim for relief is stated. The parties fully briefed the motion, and the Court heard oral argument on March 30, 1987.
DISCUSSION
In reviewing a motion to dismiss the Court must take all factual allegations of the complaint as true, and in the context of a 12(b)(6) motion, must draw all factual inferences in plaintiffs' favor. E.g., Doe v. U.S. Department of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). A motion to dismiss under Rule 12(b)(1), on the other hand, calls the jurisdiction of the Court into question, and the plaintiffs will bear the burden of establishing that jurisdiction is proper. See, e.g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936). Plaintiffs' factual allegations in the complaint thus will bear closer scrutiny in resolving a 12(b)(1) motion. E.g., Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986). With these principles in mind, the Court shall review defendant's motion.
A. Lack of Jurisdiction Under the Tucker Act
The Tucker Act gives the Claims Court jurisdiction over claims against the United States founded upon the constitution, an Act of Congress, an agency regulation, or a contract with the United States, seeking damages in non-tort cases. 28 U.S.C. § 1491(a)(1). The District Courts have concurrent jurisdiction over these claims, to the extent they do not exceed $10,000. 28 U.S.C. § 1346(a)(2). Although the Act does not further clarify this allocation of jurisdiction, it is generally held that the Claims Court has exclusive jurisdiction over claims exceeding $10,000. E.g., Hahn v. United States, 757 F.2d 581, 585-86 (3rd Cir.1985). Thus, to the extent that plaintiffs' claims seek more than $10,000 from the federal government, they must be brought in the Claims Court, even if they could be brought under another jurisdictional grant such as § 1331. Id. The reason for this strict application of the statute is that the United States has waived sovereign immunity for such claims only under the terms of the Tucker Act, and unless a separate waiver of sovereign immunity can be found for the claims, they cannot be brought. Id. See also United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). As the Claims Court has only limited power to grant equitable relief, however, plaintiffs seeking such relief *432 are not required to obtain redress in the Claims Court. Plaintiffs allege that because they seek only equitable relief, this Court can properly exercise jurisdiction under the Tucker Act. In addition, they assert that the Court has independent jurisdiction over their claims based on section 1331 and the APA.
In determining whether plaintiff's claims are within the Claims Court's exclusive jurisdiction, the Court must look beyond the pleadings to the actual nature of the relief they seek. E.g., Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C.Cir.1982). With the exception of Count IV, plaintiffs request declaratory relief that would establish the monetary liability of the federal government, triggering Claims Court jurisdiction. Equitable relief that determines monetary liability of the federal government would not deprive the District Court of jurisdiction under the Tucker Act, however, if plaintiffs can establish that the equitable relief serves a significant purpose, independent of and in meaningful addition to any monetary relief.[3]E.g., Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1533 (D.C.Cir.1984), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985), on remand, 788 F.2d 762 (D.C.Cir.1986) (dismissed as moot); Hahn, 757 F.2d at 589. Conversely, if injunctive/declaratory relief is merely incidental to the monetary relief, and does nothing more than establish the plaintiffs' legal entitlement to money without expanding the relief "in any meaningful way," their claims will be within the Claims Court's exclusive jurisdiction. E.g., State of Minnesota by Noot v. Heckler, 718 F.2d 852, 859-60 n. 13 (8th Cir.1983).
Relying on Hahn, Ramirez, and Minnesota, plaintiffs assert that the declaratory relief they seek has "independent, prospective significance," claiming that a declaration of federal liability for the Pension Fund would facilitate negotiations and possible settlement with Congress, and would eliminate the "stigma" the Board bears because it cannot ensure adequate pension funding. They have not shown how the future conduct of plaintiffs or District of Columbia employees would be affected by a declaratory judgment. No court has premised the District Court's exercise of jurisdiction to grant equitable relief upon such tenuous prospective benefits. Plaintiffs admit that they seek specific dollar amounts, and have not shown what relief this Court could fashion that would not immediately result in monetary liability for the United States. The speculative possibility of extra-judicial compromise among the parties, wherein no money would be paid, is an insufficient basis for District Court jurisdiction in the face of the Tucker Act. Further, as there is no agency action at issue within the meaning of the APA, plaintiffs' alternative basis for jurisdiction must also fail. Taking all the allegations of the complaint as true, and drawing all inferences in plaintiffs' favor, the Court concludes that Counts I, II, III, and V are within the Claims Court's exclusive jurisdiction and must be dismissed.[4]
B. Failure to State a Claim
In Count IV, plaintiffs assert that the Reform Act's allocation of Pension Fund liability has deprived them of protected property in violation of the fifth amendment's guarantee of substantive due process. As plaintiffs do not seek monetary relief for this claim, it does not fall within the Claims Court's exclusive jurisdiction. The due process claim suffers from a more fundamental defect, however. Plaintiffs *433 seek due process protection for their statutory retirement and disability benefits. It is uniformly held that such benefits are not "property" sufficient to trigger substantive constitutional protection. E.g., Zucker v. United States, 758 F.2d 637 (Fed.Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 129, 88 L.Ed.2d 105 (1985); Stouper v. Jones, 284 F.2d 240, 242 (D.C.Cir.1960); National Association of Retired Federal Employees v. Horner, ("NARFE") 633 F.Supp. 511 (D.D. C.1986) (three-judge panel); National Treasury Employees Union v. Devine, 591 F.Supp. 1143, 1147 (D.D.C.1984).[5] Absent any "property" to protect, the due process claim must be dismissed.
An order consistent with the above conclusions accompanies this opinion.
ORDER OF DISMISSAL
Upon consideration of defendant's motion to dismiss, plaintiffs' opposition and response, defendant's reply and surrebuttal, the accompanying memoranda, and argument of counsel, it is this 6th day of April, 1987,
ORDERED that
1) defendant's motion to dismiss Counts I, II, III, and V under Fed.R.Civ.P. 12(b)(1) is granted, and these Counts are dismissed without prejudice to the action pending in the Claims Court; and
2) defendant's motion to dismiss Count IV of the complaint under Fed.R.Civ.P. 12(b)(6) is granted, and Count IV is dismissed with prejudice.
NOTES
[1] Plaintiffs are the District of Columbia Retirement Board, Arthur M. Reynolds, Bonnie R. Cohen, Orlando W. Darden, Sr., James W. Dyke, Jr., Solomon Kendrick, Thomas P. King, Garland C. Liskey, Harriette T. McGinnis, E. Fillmore Mitchell, and Thomas J. Scherer, all of whom are members of the Board; and the District of Columbia's Deputy Mayor for Finance, an ex officio member of the Board. All individual plaintiffs are either active or retired District of Columbia employees.
[2] The only named defendant is the United States of America. No allegation expressly seeks to impose liability on an officer or agency of the United States.
[3] Equitable relief may have the "independent significance" needed for District Court jurisdiction, and still be used subsequently to obtain an award of damages in the Claims Court, without depriving the District Court of jurisdiction. See Hahn, 757 F.2d at 589; Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1379 (9th Cir.1981). Although plaintiffs make much of this latter principle, the "subsequent use" rule does not confer jurisdiction on the District Court it simply does not preclude the exercise of otherwise appropriate jurisdiction. Plaintiffs must still establish the "independent significance" of the equitable relief they seek.
[4] Defendant's motion for summary judgment on Count III is therefore moot, and the Court intimates no ruling on the merits of the claim or of defendant's motion.
[5] The Court has determined that federal law should apply in this analysis, as the statutes determine federal liability under economic legislation and thus involve principally a federal interest Plaintiffs argue that the Acts should be treated as "state law," because they were enacted pursuant to Congress' plenary power to legislate for the District of Columbia under Art. I, § 8, cl. 17 of the U.S. Constitution. Accordingly, they reason, this Court should defer to the District of Columbia Court of Appeals' interpretation of the Reform Act, rather than federal law, to determine whether the statute grants protected property rights. E.g., Hall v. C & P Telephone Co., 793 F.2d 1354, 1358 (D.C.Cir. 1986). Plaintiffs would have the Court apply McNeal v. Police & Firefighters' Retirement & Relief Board, 488 A.2d 931 (D.C.App.1985), for the proposition that Reform Act benefits are protectable "property" under the fifth amendment. Even if the Court were to agree that the Acts are "local" and that deference is due to the D.C. Court of Appeals, the outcome would be the same. McNeal looks to federal law and finds a property interest in the benefits for procedural due process purposes only. Id. at 935-36. The court squarely stated the limits of this protected interest, noting that a benefit recipient does "not have a protected expectation that Congress would never [again] legislate in the area of disability benefits." Id. at 936. This result is no different than that discussed at length in NARFE, 633 F.Supp. 511. Thus, even under a "local law" analysis, plaintiffs have failed to establish a property interest warranting substantive protection under the fifth amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265433/ | 200 N.J. Super. 361 (1985)
491 A.2d 752
CARLOTTA D'ONOFRIO, PLAINTIFF-APPELLANT,
v.
STEPHEN G. D'ONOFRIO, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued February 11, 1985.
Decided April 3, 1985.
*363 Before Judges McELROY, DREIER and SHEBELL.
Ronald L. Bennardo argued the cause for appellant (Curry & Stein, attorneys; James J. Curry, Jr., on the brief).
Alan J. Cornblatt argued the cause for respondent (Alan J. Cornblatt, on the brief).
*364 The opinion of the court was delivered by DREIER, J.A.D.
Plaintiff has appealed from a divorce judgment incorporating the terms of an antenuptial agreement. The issue was severed and specially referred to a judge who rendered a decision finding the agreement legal and binding. A court order to that effect was entered over a year prior to the divorce hearing.
In this appeal plaintiff contends that the antenuptial agreement was void in that it was inequitable, grossly unfair and unconscionable. She also argues that even if the agreement is not void, it is subject to modification based upon changed circumstances. Plaintiff's remaining claims assert that the denial of an alimony award was error, as was the requirement that defendant need pay only $3,500 of her counsel fees.
Plaintiff and defendant lived together for several years prior to their marriage and their only child, Stephanie, was born to them in 1967. They were married on June 22, 1971 shortly after they signed a "Prenuptial Agreement" prepared by defendant's attorney who advised plaintiff that she should have independent legal representation; however, such representation was waived. The agreement by its terms barred plaintiff from claiming any right, including a dower right, to all real estate owned by defendant and any right to his personal property "in the event the marriage for any cause or in any manner during the lifetimes of the parties terminates or is annulled." Plaintiff also appointed defendant as her attorney-in-fact. The consideration for the agreement was both the marriage and the payment of $1,000 to plaintiff evidenced by defendant's note against which payments were to be made into a savings account to be opened in her name at a local bank. These payments were made. The agreement further represented that defendant "has a substantial estate consisting principally of realty, and [plaintiff] is without a substantial estate of either realty or personalty." The parties further acknowledged "that the monetary value to be received by [plaintiff] hereunder is or may be *365 out of all proportion to that to which as a wife she would be entitled."
The proofs further showed that plaintiff fully understood the effect of this agreement, and about the time it was signed even explained to one of her friends that she had to give up all rights to defendant's property if she wanted to marry him. Significantly, the agreement did not deal with an award of alimony.
On October 27, 1982 the specially-assigned judge entered an order finding that plaintiff received the $1,000 consideration, entered into the agreement with "full understanding of all relevant facts" and had been dealt with fairly after full disclosure of such facts prior to the execution of the agreement. Thus he found the agreement "to be a legal and valid agreement, binding upon the parties."
I
This appears to be the first New Jersey appellate case presenting for adjudication the enforceability of an antenuptial agreement in a divorce action under New Jersey law[1]. Cf. Kelso v. Kelso, 96 N.J. Eq. 354 (E. & A. 1924) (enforcing such agreement against a husband's claim that transfers made pursuant thereto constituted an improvident gift); Smith v. Executors *366 of Moore, 4 N.J. Eq. 485 (Ch. 1845), aff'd sub. nom. Moore v. Smith, 5 N.J. Eq. 649 (E. & A. 1847) (enforcing antenuptial agreement in estate proceedings); Chaudry v. Chaudry, 159 N.J. Super. 566 (App.Div. 1978) (involving interpretation of an agreement executed in accordance with the customs and usage of Pakistan and, thus, found effective in New Jersey); Fern v. Fern, 140 N.J. Super. 121 (App.Div. 1976) (prenuptial agreement found to terminate on death and not to be intended by the parties to apply in the event of a divorce). See also 1 Skoloff, New Jersey Family Law Practice (5 ed. 1984), § 7.4B at 7-10 to 7-15.
Although ordinarily we would render a more detailed analysis of the pros and cons of enforcing an antenuptial agreement in a divorce proceeding and would analyze out-of-state authority, such a comprehensive exposition and analysis has been published within the past year by Judge Lesemann in the Chancery Division, Family Part; our reexpression of the principles there stated is unwarranted. See Marschall v. Marschall, 195 N.J. Super. 16 (Ch.Div. 1984). We agree with the conclusion reached by Judge Lesemann and, for the reasons he stated, find that "antenuptial agreements fixing post-divorce rights and obligations should be held valid and enforceable." 195 N.J. Super. at 27. We further agree that rather than granting such agreements "only grudging acceptance," the courts should welcome and encourage such agreements at least "to the extent that the parties have developed comprehensive and particularized agreements responsive to their peculiar circumstances." Id. at 28-29 (quoting Petersen v. Petersen, 85 N.J. 638, 645-646 (1981)).
Citing Lepis v. Lepis, 83 N.J. 139 (1980), Judge Lesemann also noted that an antenuptial agreement should "be regarded as subject to modification by reason of `changed circumstances' in the same manner as property settlement agreements." 195 N.J. Super. at 28, n. 3. We need not decide this issue for three reasons. First, the subject is better analysed in the context of *367 a claim for alimony, a subject not treated in the agreement before us. Second, since it appears that virtually all of the parties' assets were owned by defendant prior to the marriage, N.J.S.A. 2A:34-23 (last paragraph) excludes the equitable distribution of such property. Although during the parties' 11 years of marriage there were sales and purchases of various parcels of real estate, assets "for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable shall similarly be considered the separate property of the particular spouse." Painter v. Painter, 65 N.J. 196, 214 (1974). Thus, solely the personal property acquired by defendant during the marriage would be the subject of the agreement. Lastly, plaintiff has not demonstrated sufficient changed circumstances to warrant consideration of this issue as to personal property.
Plaintiff has also asserted the unfairness of the agreement as a basis for our refusing to enforce it. In a court of equity the judge should inquire into such allegations, since claims of fraud, overreaching, duress or the like on the part of defendant might well bar the enforcement of the agreement. These matters, however, were inquired into by a separate judge who found against plaintiff on the facts. Our review of the record convinces us that his factual conclusions have a substantial foundation. Plaintiff knew of defendant's assets in detail prior to the marriage, since both prior to and during the marriage she acted as bookkeeper for her husband, noting the payment of rents and mortgages. Substantially the only asset of the parties was the real estate owned by defendant prior to the marriage. The value of the various properties owned by defendant was not significantly enhanced by plaintiff's efforts. Thus, there is no justification for a claim by her to participation in the increased value of the real estate. Painter, 65 N.J. at 214, n. 4; cf. Scherzer v. Scherzer, 136 N.J. Super. 397, 400-401 (App.Div. 1978), certif. den. 69 N.J. 391 (1976). We perceive no reason to upset the trial judge's finding that there was no factual basis to overturn the agreement.
*368 II
Although the trial judge justifiably started his financial analysis with the effectiveness of the antenuptial agreement (bolstered by the non-inclusion of the vast majority of the parties' property for equitable division purposes), this background should have had a profound effect upon the need to grant alimony and child support so that plaintiff could "share in the economic rewards occasioned by her husband's income level (as opposed merely to the assets accumulated), reached as a result of their combined labors inside and outside the home." Gugliotta v. Gugliotta, 160 N.J. Super. 160, 164 (Ch.Div.), aff'd, 164 N.J. Super. 139 (App.Div. 1978).
This issue was complicated by the underemployment of the parties. Defendant was content principally to manage his properties, and plaintiff was content to work for the Girl Scouts at a lower salary than she could have obtained in other employment, but which freed her for her duties as a wife and mother. The parties' combined income of approximately $30,000 was found by the trial judge to be less than they could have earned with full employment. The court found that plaintiff could have earned $12,000 and defendant $30,000, had they sought full-time employment. Plaintiff and their daughter were, however, entitled to be maintained at the level appropriate to a family income level of $30,000 as established during the marriage, and not merely to the "bare-bones" budget used by the court as its standard. Lepis v. Lepis, 83 N.J. at 153-161.
In the January 10, 1984 divorce judgment plaintiff's application for alimony was denied. However, plaintiff was permitted to occupy the marital home until the earlier of (1) Stephanie's becoming emancipated or living away from the premises, or (2) plaintiff remarrying, desiring to move from the premises or entering into some other agreement with defendant. There is no mortgage on this home and defendant was required to pay the real estate taxes. The balance of the expenses were to be defrayed by plaintiff. Child support payments were not *369 described in the judgment, but rather in a separate agreement between the parties requiring the application of certain trust payments to provide $120 per week for Stephanie's support, as well as an additional amount for the real estate taxes on the marital home and the child's tuition or other expenses for private schooling. These instructions to the trustee bank are to apply so long as the child is unemancipated.
The net effect of these provisions is to provide plaintiff with the marital home at minimal expense (insurance, maintenance repairs and utilities), as well as $120 a week plus Stephanie's tuition and other schooling expenses. This income coupled with plaintiff's earnings was found by the court to be sufficient to meet the minimal standard noted above, but fails to take into consideration certain factors. No provision, for instance, is made for the period after the child's emancipation. She was 15 as of the date of the divorce and will be 18 in April 1985. If, as is expected, she continues her education through college, plaintiff will be receiving supplemental family income for a few more years. But at the time of Stephanie's emancipation, either by graduation from college, marriage or some earlier event, the supplemental income for plaintiff's household will abruptly cease, as will her entitlement to live in the former marital home. She will be left with no assets and but a minimal income. The situation will in no way permit her to share in the standard of living enjoyed by her and her former husband during their marriage. We realize that the trial judge provided effectively for plaintiff's support for the years between the divorce and the daughter's emancipation in a manner that would have a minimum income tax effect upon her. Plaintiff will reside in a home which defendant is to provide for his daughter, and a portion of the household expenses will be defrayed from child support payments. This plan, however, fails to provide for any continuing support of plaintiff to the standard enjoyed during the marriage after crediting her with her earnings. This is not to say that alimony provisions must cover all eventualities, since upon changes in circumstances a *370 spouse may apply to the court for an appropriate modification, Lepis v. Lepis, 83 N.J. at 158. This order, however, provides for no alimony and fails to establish the standards for plaintiff's continued support.
In cases where there has been substantial equitable distribution of property and a dependent spouse's own income will be supplemented by unearned income from the investment of the distributed property, a court might determine that, upon the reduction of expenses with the emancipation of any dependent children, the total income of the dependent spouse might be sufficient to maintain her (or him) to the standard of living enjoyed during the marriage. In this case, however, the earnings history of plaintiff and the lack of any equitable distribution make it highly unlikely that plaintiff's total income after Stephanie's emancipation will even approach a sum necessary to maintain plaintiff in the standard of living established during the marriage. Upon remand, therefore, the court should establish such a standard and provide in an amended judgment for the current support to which plaintiff is entitled. If it does not appear that a change in support will be necessary until the emancipation of the child, the standard may be set now, but a suitable application should be withheld until such later time.
III
The trial judge should also reconsider on remand the allocation of medical expenses. The divorce judgment requires that plaintiff defray one-half of the unreimbursed medical expenses for the daughter. We assume that the court found that the child support payments from the trust were sufficient to warrant such equal division of unreimbursed medical expenses. However, considering the difference in the parties' incomes and assets, a significant medical expense might place an undue burden upon plaintiff because her income is minimal and she has no capital assets from which to defray a major expense. *371 Defendant on the other hand has both greater income and some $400,000 in capital assets.
IV
Lastly, plaintiff has complained that defendant was ordered to pay only $3,500 of her $12,290 counsel fees. The affidavit of services indicates that 83.3 hours were expended by a partner and 52.8 hours by an associate, and the trial judge made no findings as to the necessity for the services nor the basis upon which defendant was ordered to pay less than 30% of these charges. See Williams v. Williams, 59 N.J. 229, 233 (1971), and contrast the considerations when substantial equitable distribution is made to the wife in Pascarella v. Pascarella, 165 N.J. Super. 558, 565 (App.Div. 1979); Shaffer v. Shaffer, 154 N.J. Super. 491, 495 (App.Div. 1977). On remand, the trial court should consider the nature and effect of the services rendered, the reasonableness of the fees charged and the ability of each of the parties to defray such expenses from his or her income and resort to capital assets. If the award of alimony, child support and related expenses is to remain as originally ordered after the trial court has reconsidered the matters noted in this opinion, it would appear that an equitable division would be for defendant to pay 80% of those fees found reasonable and necessary for the prosecution of this litigation. We note that plaintiff has already paid her attorneys $3,700 and may be entitled to a refund upon defendant's satisfying his share. Of course if an amended award of alimony affects the ability of the parties to pay, the trial judge may deviate from this formula.
The judgment, insofar as it gives effect to the antenuptial agreement, is affirmed. The denial of alimony to plaintiff is reversed as are the allocations of medical expenses and counsel fees. This matter is remanded to the Chancery Division for reconsideration of these issues as provided in this opinion. We do not retain jurisdiction.
NOTES
[1] While N.J.S.A. 37:2-4, enacted in 1877, provides that "all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place," no appellate case has construed the statute with respect to post-divorce rights. One case, Chaudry v. Chaudry, 159 N.J. Super. 566 (App.Div. 1978) discusses the post-divorce effect of such an agreement under Pakistani law but does not address the validity of such agreements in the context of divorce proceedings and especially under the Divorce Act, N.J.S.A. 2A:34-23. See also N.J. Title Guar. & Trust Co. v. Parker, 85 N.J. Eq. 557 (E. & A. 1915), concerning application of an antenuptial agreement in a post-divorce setting and holding that such an agreement may not generally be enforced in divorce proceedings occasioned by a cause not recognized in the jurisdiction where the agreement was executed. (Given the liberal evolution of divorce law in New Jersey in the past 70 years, there must be a reassessment of the principles enunciated in Parker especially since the advent of the 1971 Divorce Act). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265434/ | 657 F.Supp. 111 (1987)
UNITED STATES of America
v.
C. Leon HARVEY.
CR. 3-86-83.
United States District Court, E.D. Tennessee N.D.
February 27, 1987.
*112 Laurens Fullock, Asst. U.S. Atty., for U.S.
Herbert S. Moncier, Knoxville, Tenn., for defendant.
ORDER
HULL, Chief Judge.
The above-styled criminal action was referred to United States Magistrate Robert P. Murrian pursuant to 28 U.S.C. § 636(b) and a standing order of this Court for a report and recommendation regarding disposition by the Court of the defendant's motion to dismiss the superseding indictment on the ground that the two declarations of Mr. Harvey which form the basis of this perjury prosecution are not material declarations. An evidentiary hearing was conducted before the magistrate on December 17 and 22, 1986, and oral arguments were heard on February 6, 1987. This matter is currently before the Court on the magistrate's report and recommendation which recommends that the superseding indictment be dismissed with prejudice.
It should first be noted that the government has not filed any objections to the magistrate's report and recommendation and has informed the Court that it does not intend to pursue the matter further.
After reviewing the record in this case, the Court finds that the magistrate's report and recommendation is well reasoned and fully supported by the record. Thus, the report and recommendation of the United States magistrate is hereby adopted and approved.
Accordingly, for the reasons set out in the magistrate's report and recommendation, it is ORDERED that the defendant's motion to dismiss the superseding indictment is hereby GRANTED and that the superseding indictment is hereby DISMISSED WITH PREJUDICE.
REPORT AND RECOMMENDATION
Feb. 17, 1987
ROBERT P. MURRIAN, United States Magistrate.
This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and a *113 Standing Order of this Court for a report and recommendation regarding disposition by the Court of the defendant's motion to dismiss the superseding indictment on the ground that the two declarations of Mr. Harvey which form the basis of this perjury prosecution are not material declarations. An evidentiary hearing was conducted on December 17 and 22, 1986, and oral arguments were heard on Friday, February 6, 1987.
The superseding indictment charges Mr. Harvey with giving certain testimony under oath during a discovery deposition which was taken on October 13, 1983, in the case of Harvey d/b/a Harvey Motor Co. v. Chrysler Credit Corporation, Civ. No. 3-83-452. The superseding indictment charges that he gave inconsistent testimony to that given in the deposition in other testimony given from the witness stand during a civil trial held before the Honorable James H. Jarvis on July 3, 1985. Chrysler Credit Corporation v. W.N. Harvey, Civ. No. 3-85-187.
It is the theory of the government's case that the answers given on these separate occasions are so totally inconsistent that one of them is necessarily false and, hence, Mr. Harvey is guilty of perjury. The statute in question provides in pertinent part as follows:
* * * * * *
(a) Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.
* * * * * *
(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if
(1) each declaration was material to the point in question, and
(2) each declaration was made within the period of the statute of limitations for the offense charged under this section.
In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.
* * * * * *
18 U.S.C. § 1623.
As can be seen from the words of the statute, each declaration must have been "material to the point in question." That frames the precise issue for determination of this motion, i.e., were both declarations set out in the superseding indictment "material to the point in question" when made? Since I am of the opinion that the declaration made in the 1983 civil deposition was not material to the point in question, I shall pretermit consideration of the declaration made during the 1985 civil trial.
Materiality is a question of law for the Court. See United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); United States v. Giacalone, 587 F.2d 5, 7 (6th Cir.1978), cert. denied, 442 U.S. 940, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Thus, it is rather a waste of time to be concerned with where the burden of proof lies with regard to proving materiality. After the appropriate underlying facts are developed, it is for the Court to answer "yes, the declaration was material" or "no, it was not." United States v. Watson, 623 F.2d 1198, 1202 (7th Cir.1980).
In a prosecution such as this one, the government is relieved of proving that a particular statement is false if it can show that two or more statements (1) were *114 made before or ancillary to a federal court or grand jury proceeding, (2) were made under oath, (3) were made knowingly, (4) are inconsistent to the degree that one statement is necessarily false, (5) were material to the point in question, and (6) are not time barred. A prosecution like this one could be analogized to the tort concept of res ipsa loquitur. "The thing speaks for itself" in that one of the statements necessarily is false.
The question of what "material to the point in question" means in Section 1623 is uncertain as the law stands now. But, even if I adopt the government's position of what that phrase means, the declarations made during the 1983 civil deposition were not material. The government took its test of materiality from United States v. Naddeo, 336 F.Supp. 238 (N.D.Ohio 1972) (a prosecution under 18 U.S.C. § 1621) and stated it as follows:
(1) What was the matter under inquiry?
(2) Was the matter under inquiry a proper matter (even if collateral)?
(3) Did the testimony have the tendency to impede, influence, or dissuade the examiner from his investigation?
Government's Reply Brief, p. 6.
In my opinion, the answer to the first two questions does not call for dismissal of the superseding indictment but the answer to the third is "no" and calls for such a dismissal.
The matter under inquiry during the 1983 civil deposition was whether or not Harvey Motor Company consisted of a partnership between W.N. Harvey (defendant's father) and the defendant. Ex. 3 and Ex. 4. It was a proper matter for inquiry because the questions dealt with the right of defendant to sue on behalf of Harvey Motor Company. It may have been a "collateral" matter, but the line of inquiry was nonetheless proper. There may well have been some confusion in the examiner's mind regarding whether Harvey Motor Company was a proprietorship or a partnership. Tr. 29.
Defendant answered the questions to the effect that he and his father operated Harvey Motor Company as a partnership and had done so since 1947.
The 1983 lawsuit had been filed July 22, 1983. Ex. 1. The plaintiff was "Leon Harvey, d/b/a Harvey Motor Company," and the defendant was Chrysler Credit Corporation (Chrysler Credit). Plaintiff described himself as a franchise dealer for the Chrysler Corporation since 1947. The complaint stated that plaintiff and defendant Chrysler Credit had a contract whereby a floor-plan line of credit was extended to plaintiff. The complaint claimed that defendant had made unfair representations about plaintiff which caused certain banks to cancel plaintiff's line of credit and that defendant had maliciously cancelled plaintiff's line of credit with defendant. The complaint alleged that defendant's conduct had forced plaintiff into bankruptcy. Finally, the complaint alleged that defendant had "breached a covenant of good faith inherent with the contract that [Mr. Harvey] had with [Chrysler Credit]," and that Mr. Harvey was entitled to $7.5 million in damages.
Chrysler Credit answered and counterclaimed against "Leon Harvey d/b/a Harvey Motor Company." Ex. 2. It admitted that it had extended a floor plan line of credit to "Leon Harvey d/b/a Harvey Motor Company" in its answer. The counterclaim was to enforce a note dated April 1, 1980, which was signed "C.L. Harvey and W.N. Harvey DBA Harvey Motor Company by /s/ C.L. Harvey." The answer and counterclaim raised no question whatsoever about plaintiff's right to bring the suit. In fact, since Chrysler Credit admitted that a floor-plan contract existed between "Leon Harvey d/b/a Harvey Motor Company" and Chrysler Credit, the defendant and his counsel, J.D. Lee, Esq., had no way of knowing that Leon Harvey's right to bring the suit was a "point in issue." In fact, by admitting that it had a floor plan contract with "Leon Harvey d/b/a Harvey Motor Company," Chrysler Credit had made the question of plaintiff's right to bring the lawsuit a "non-issue" at the time of the October 13, 1983, deposition.
*115 The lawyer who was examining the defendant at that time, R. Thomas Stinnett, Esq., explored the question of whether or not Harvey Motor Company was a partnership at the outset of the deposition. After being told that Harvey Motor Company was a partnership, he made the tactical decision not to raise any issue in the pleadings or otherwise about the right of "Leon Harvey d/b/a Harvey Motor Company" to sue his client. Tr. 113-114.[1] The lawsuit was dismissed without prejudice on November 30, 1983, at the request of the plaintiff. At no time from the lawsuit's inception until its dismissal was any question raised by Chrysler Credit in the pleadings or by other notice about "Leon Harvey d/b/a Harvey Motor Company's" right to prosecute that suit. Tr. 215-218.
Mr. Stinnett did not raise the question at the deposition. He simply asked some questions, got some answers, and went right on. He never questioned plaintiff's right to sue. As indicated earlier, he made the tactical decision (unknown to defendant of course) not to raise the issue.
Defendant was represented by Mr. Lee at the deposition. Mr. Lee testified at the hearing before me and said that he has known Mr. Harvey for more than 40 years. Lee said that he knew at the time of the deposition that Harvey Motor Company was a partnership until about 1978 when defendant became the sole owner after his father semi-retired. Tr. 207-208. He was present at the deposition and heard Mr. Harvey's testimony. Mr. Lee testified that defendant's statements that Harvey Motor Company was a partnership "probably rolled off me at the time as essentially talking about before 1978." Tr. 221. He said that if that issue had had anything to do with the lawsuit, he would have straightened the matter out. Tr. 221-223.
The government argues in its brief that Mr. Stinnett's questioning was influenced by defendant's answers since Stinnett asked follow-up questions about W.N. Harvey's role in the business. That may be true, but under the test urged on this Court by the government, influencing the examiner's questioning is not the criteria; rather, the question is "whether or not the false testimony had the material effect or tendency to impede, influence or dissuade the examiner from pursuing his investigation. Naddeo, 336 F.Supp. at 239 (emphasis added).
As set out previously, the question of whether Harvey Motor Company was a proprietorship owned by the defendant or a partnership owned by the defendant and his father was at all times, from beginning to end, a non-issue in the 1983 litigation. It may have been a potential issue stored somewhere in the mind of Mr. Stinnett when he was questioning the defendant, but that did not render the questions asked and the declarations made by defendant "material to the point in question" for purposes of Section 1623.
The answers Mr. Stinnett obtained in no way impeded, influenced or dissuaded his investigation of the case. When Mr. Harvey testified that Harvey Motor Company was a partnership, it just confirmed what Mr. Stinnett believed all along. Tr. 31, 37, 111. Mr. Stinnett treated the 1983 case as a partnership case. Tr. 36. For tactical reasons, Mr. Stinnett did not want to raise a question about Mr. Harvey's right to sue. Tr. 113-114. If Mr. Harvey had testified to the effect that Harvey Motor Company was something other than a partnership, it is entirely speculative what would have happened. In any event, the proof is uncontradicted that Mr. Stinnett did not want to raise any question about the defendant's right to sue in the 1983 litigation because he felt that strategy was in the best interest of his client.
The immateriality of the declarations is certainly borne out by the fact that the defendant's attorney heard the testimony and knew full well that the company was essentially a proprietorship since 1978 yet made no effort to correct any possible confusion or misunderstanding on his client's part.
It is not difficult to see why the matter was a "non-issue" in the 1983 litigation. *116 The floor plan contract between Chrysler Credit and Harvey Motor Company dated May 15, 1973, was signed as follows: "C.L. Harvey and W.N. Harvey ind. and as Co-Partners dba Harvey Motor Company, by /s/ Leon Harvey" (emphasis added). Obviously "ind." stands for "individually." Therefore, Chrysler Credit had a contract with defendant and his father individually, as well as with them as partners.
Although authority on the point is scant, it would appear to me that Congress put the words "material to the point in question" in Section 1623 to guard against criminal convictions under factual situations similar to the one present here. Mr. Harvey had caused the suit to be filed in his own name as a proprietorship. He swore under oath that it was a partnership. At that point in time nobody had raised any question in the pleadings or otherwise that defendant's right to sue in the 1983 litigation was in any way a "point in question" and nobody raised that question before the case was dismissed.
The legislative history of Section 1623 which is reprinted in 1970 United States Code Congressional and Administrative News, 4007, et seq., sheds some light on the problem. It makes clear the requirement that each declaration upon which the prosecution is based must have been "material to a point in question in the proceeding in which it was made...." Id., 4023. It also makes clear that subsection (c) relates solely to the establishment of falsity. Knowledge, falsity and materiality must all be proved whether the prosecution is based on a single false statement or two or more logically inconsistent statements. Id.
From this it would appear that subsection (c)(1) puts a materiality question within the question of whether a false statement was made at all. And so, "overall materiality" for purposes of any prosecution under Section 1623 is different than the materiality requirement set forth in subsection (c)(1).
It would seem reasonable to me to conclude that subsection (c)(1) has the "material-to-the-point-in-question" requirement in order to ensure that no one will be convicted for making logically inconsistent declarations unless those declarations had sufficient importance to the proceedings in which they were made to warrant holding the declarant accountable under the criminal laws of the United States. It would appear to be logical that Congress would add this "extra" materiality requirement within subsection (c) to offset somewhat the fact that the government need not allege and prove which of the inconsistent statements was false. With the addition of this "material-to-the-point-in-question" requirement, the statute ensures that no one is, in effect, "sandbagged" by virtue of a declaration which pertained to a matter of little significance in the context of a judicial proceeding.
Mr. Stinnett was certainly justified in using the declarations to attempt to impeach the defendant during the 1985 trial. But, use of a prior inconsistent statement to impeach whereby the declarant is given an opportunity to explain the inconsistency if he can is quite different from using a prior inconsistent statement as an element of a perjury prosecution. By adding this "extra" materiality requirement, Congress gave the federal courts the authority to decide in Section 1623(c) prosecutions whether, as a matter of law, the logically inconsistent declarations had sufficient importance to the proceeding in question to warrant prosecutions under the criminal laws of the United States.
In my judgment, this "material-to-the-point-in-question" requirement does not exist with respect to the 1983 declarations and therefore the superseding indictment should be DISMISSED WITH PREJUDICE.[2]
NOTES
[1] References are to the transcript of the evidentiary hearing.
[2] Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266470/ | 165 Cal.App.4th 1267 (2008)
DAVID MADDEN, Plaintiff and Appellant,
v.
SUMMIT VIEW, INC., Defendant and Respondent.
No. A117128.
Court of Appeals of California, First District Division One.
August 11, 2008.
*1270 Oreck & Oreck, Eugene R. Oreck; Paoli & Geerhart and Thomas Alan Paoli for Plaintiff and Appellant.
Archer Norris, William H. Staples, W. Eric Blumhardt and Kimberly M. Amick for Defendant and Respondent.
OPINION
MARGULIES, J.
Plaintiff David Madden was injured when he fell from a raised patio while working for a subcontractor at a home construction site. He sued the general contractor, Summit View, Inc. (Summit View), alleging that his injuries were caused by Summit View's negligence in failing to place a protective railing along the open side of the patio. Summit View moved successfully for summary judgment under the Privette-Toland doctrine. (Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721] (Privette); Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [74 Cal.Rptr.2d 878, 955 P.2d 504] (Toland).) Madden contends that the trial court erred in finding there were no triable issues of material fact. We affirm.
I. BACKGROUND
A. Pleadings
Madden, an electrician employed by a subcontractor at a home construction site, sued Summit View, the general contractor, for injuries he sustained on July 1, 2003, in a fall from a raised unguarded patio at the site. Madden's form complaint asserted a single cause of action for premises liability against Summit View, based on the allegation that his injuries were proximately caused by Summit View's negligence in maintaining, managing, and operating the subject premises. Summit View's answer included an affirmative defense based on Privette and Toland.
B. Summary Judgment Motion
By motion for summary judgment, Summit View asserted that it was entitled to judgment as a matter of law under the Privette-Toland line of cases, based in substance on the following undisputed facts:
Busch Electric was working as a subcontractor on the construction of a home for a Mr. and Mrs. Welsh, and Madden was employed as Busch's electrical foreman for the project. Summit View was the general contractor. *1271 Under a subcontract between Summit View and Gary Tschantz Construction, Gary Tschantz was the project supervisor. However, Madden sequenced and directed his own work at the Welsh project. Summit View did not control the methods Busch used for its work nor did it control the method or means or provide any materials for Madden's work.
Madden was injured when he fell from a raised patio while pulling some electrical wire for installation in the home. He had worked in the area where the fall occurred many times before. Madden left the area of the installation and was walking backwards in an effort to untangle a knot of wire when the fall occurred. There were no witnesses to the fall. Madden does not know how high off the ground he was at the time of the fall.
In opposition to Summit View's motion, Madden cited the following facts, among others, that he contended were undisputed and created triable issues of material fact regarding Summit View's Privette-Toland defense:
A Summit View officer, Tom Berry, was at the project site two or three times a week, while Tschantz was there just about every day. Tschantz did not consider jobsite safety to be part of his work as project supervisor and that subject was never discussed with him. Tschantz was unaware that anybody at the jobsite had been hired by the Summit View representative to be responsible for site safety. Tschantz was not familiar with California Occupational Safety and Health Act (Cal-OSHA) regulations relating to fall protection, which required railings to be provided on all unprotected and open sides of elevated platforms or other elevations of seven and one-half feet or more.
The elevated patio was about eight feet wide, 30 to 40 feet in length, and between two and eight feet high, depending on the slope of the land that ran adjacent to it. About a year before the accident, a subcontractor had built the retaining wall for the patio, but the patio floor remained covered with dirt until June 2003, when the patio was cemented over. Between the time the retaining wall was built and patio was cemented over, the patio was used as a walkway and platform for workers on the project, including Tschantz, Berry, and Madden. No railing was put in place along the unprotected retaining wall side of the patio until after Madden's accident. Tschantz would have required Summit View's approval to install a railing.
The trial court granted summary judgment to Summit View, and this timely appeal followed.
*1272 II. DISCUSSION
A. Standard of Review
On appeal after a trial court has granted summary judgment, we review the record de novo to determine whether the evidence submitted for and against the motion discloses material factual issues warranting a trial. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal.Rptr.2d 370, 28 P.3d 116]; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335 & fn. 7 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subds. (a), (o)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493], fn. omitted.)
B. The Privette-Toland Doctrine
Defendant brought its motion for summary judgment on the theory that Madden's suit is barred as a matter of law by Privette and its progeny, a series of cases that have defined and limited the circumstances in which an independent contractor's employee may recover in tort from the party hiring the contractor. In Privette, the Supreme Court examined whether a hired contractor's employees may seek recovery based on the theory of "peculiar risk" from a nonnegligent hiring party for injuries caused by the negligent contractor. (Privette, supra, 5 Cal.4th at p. 696.) The peculiar risk doctrine had developed as an exception to the general rule that a person who hired an independent contractor was not liable to third parties for injuries caused by the contractor's negligence in performing the work. (Id. at p. 693.) It had been applied by the courts when the contracted work was deemed to pose some inherent risk of injury to others. (Id. at pp. 693-694.) The theory underlying the exception was that a private landowner who engages in inherently dangerous activity on his land should not be able to insulate himself from liability for injuries to others simply by hiring an independent *1273 contractor to do the work. (Ibid.) In the event of the contractor's insolvency, the peculiar risk exception would allocate the loss to the person for whose benefit the job was undertaken. (Id. at p. 694.) By spreading the risk of loss to the person who primarily benefited from the hired work, the courts also sought to promote greater workplace safety. (Ibid.) The peculiar risk doctrine was gradually expanded to allow the hired contractor's employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor. (Id. at p. 696.)
The Privette court rejected the extension of the peculiar risk doctrine to the contractor's employees. The court reasoned that "when the person injured by negligently performed contracted work is one of the contractor's own employees, the injury is already compensable under the workers' compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor." (Privette, supra, 5 Cal.4th at p. 696.) Because the workers' compensation scheme shields an independent contractor from tort liability to its employees, "applying the peculiar risk doctrine to the independent contractor's employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee's injury." (Toland, supra, 18 Cal.4th at p. 256 [summarizing the holding of Privette].) The scope of the Privette doctrine has been held to include claims that the hirer failed to take special precautions (Toland, at p. 267) and that the hirer was negligent in hiring the contractor whose negligence caused the injury (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245 [108 Cal.Rptr.2d 617, 25 P.3d 1096]).
In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200-202 [115 Cal.Rptr.2d 853, 38 P.3d 1081] (Hooker), the court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor's employee resulting from the contractor's negligence under the theory that the hirer retained control of the work but negligently exercised that control.[1] The high court held in Hooker that "a hirer of an independent contractor was not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but was liable to such an employee insofar as its exercise of *1274 retained control affirmatively contributed to the employee's injuries." (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [68 Cal.Rptr.3d 177] (Millard) [summarizing Hooker].) In such cases, the liability of the hirer is not "vicarious" or "derivative" in the sense that it derives from the act or omission of the hired contractor, but is direct. (Hooker, at p. 212; see also McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, 225 [115 Cal.Rptr.2d 868, 38 P.3d 1094] [hirer is directly liable to an employee of an independent contractor when hirer's provision of unsafe equipment affirmatively contributes to the employee's injury].)
In Hooker, the widow of a deceased crane operator who had been employed by a general contractor hired by the California Department of Transportation (Caltrans) to construct an overpass, sued Caltrans for negligently exercising its retained control over jobsite safety. (Hooker, supra, 27 Cal.4th at p. 202.) The Caltrans construction manual provided that Caltrans was responsible for obtaining the contractor's compliance with all safety laws and regulations, and Caltrans's onsite engineer had the power to shut the project down because of safety conditions and to remove employees of the contractor for failing to comply with safety regulations. (Id. at pp. 202-203.) The plaintiff's husband died after the crane tipped over when he attempted to operate it without reextending the crane's outriggers. (Id. at p. 202.) He had retracted the outriggers in order to allow Caltrans and other vehicles to use the narrow overpass. (Id. at p. 214.) The plaintiff alleged that Caltrans was negligent in permitting traffic to use the overpass while the crane was being operated. (Id. at pp. 202, 214-215.)
Although the court found that the plaintiff in Hooker had raised triable issues of material fact as to whether Caltrans retained control over safety conditions at the worksite, she failed to raise triable issues of material fact as to whether Caltrans actually exercised the retained control so as to affirmatively contribute to the death of her husband. (Hooker, supra, 27 Cal.4th at p. 202.) The court stated: "`[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.'" (Id. at p. 209.) Under the standard approved in Hooker, a general contractor contributes to an unsafe procedure or practice by its affirmative conduct where the general contractor "`is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]' [Citation.]" (Id. at p. 215, italics omitted.)
*1275 Hooker also states that an omission may constitute an affirmative contribution in some circumstances: "[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
Applying these standards to the facts before it, the Hooker court held: "While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans's exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans's safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it." (Hooker, supra, 27 Cal.4th at p. 215, italics added.)
C. The Trial Court Decision
The trial court granted Summit View's motion in explicit reliance on the analysis in Hooker. The court stated: "Although there is a triable issue as to whether [Summit View] retained control over general safety conditions at the site, no evidence was presented that would establish that [Summit View] affirmatively contributed, by direction, induced reliance or other affirmative conduct, to [Madden's] injuries. No evidence was presented that [Summit View] directed that a railing not be installed around the raised patio, nor that the presence or absence of such a railing was an issue that [Summit View] even considered prior to the incident. The absence of the railing was open and obvious, so there was no induced reliance. Under the circumstances of this case, [Summit View's] conduct was nothing more than a `mere failure to exercise a power' to require the installation of a safety railing. As such, [Summit View] did not `affirmatively contribute' to [Madden's] injuries."
D. Analysis
In comparison to Caltrans's argument for summary judgment in Hooker, Summit View's claim here would seem to be at least as meritorious.
It was undisputed that Summit View was the general contractor and Madden was an employee of the subcontractor at the Welsh construction site. It was undisputed that Summit View had no control over the methods and supplied none of the materials that Madden's employer used for its electrical *1276 work at the site. Consistent with the Privette-Toland line of cases, these facts were sufficient to shift the burden to Madden to produce evidence that Summit View nonetheless retained control over safety conditions and practices at the site, and that it contributed by its affirmative conduct to an unsafe condition or practice that caused Madden's injury.
1. Retained Control
The evidence in Hooker showed that Caltrans retained significant control over safety conditions, as shown by the express reservation of control in its construction manual and by its placement of an engineer onsite with the power to punish subcontractors and their employees for noncompliance with safety requirements. (Hooker, supra, 27 Cal.4th at pp. 202-203.)[2] In contrast, Madden produced virtually no evidence here that Summit View retained control over general safety conditions at the Welsh site. Summit View entered into an oral contract for Tschantz to act as a "project supervisor." However, Tschantz did not understand his responsibilities to include jobsite safety, and that subject was not even discussed between him and Summit View. In addition, a Summit View representative was on the site every other day or so, but as far as Tschantz knew the representative did not have anyone present at the jobsite to do safety supervision. Thus, Madden's evidence showed only that Summit View "retained control" in the sense that, through Berry and Tschantz, it provided general supervision over the entire construction job. However, we will assume without deciding that a jury could reasonably infer from this general supervisory power that Summit View also retained control over safety conditions, whether it chose to exercise that control or not. (See Rest.2d Torts, § 414, com. b, pp. 387-388, quoted at fn. 1, ante.)
2. Affirmative Conduct
Madden's theory is that his injury was proximately caused by the absence of a guardrail along the open side of the patio. Under Hooker, the issue is whether there is any evidence in the record that Summit View contributed to that condition by its affirmative conduct. Like the trial court, we find no such evidence.
First, there is no evidence that Summit View or its agents directed that no guardrailing or other protection against falls be placed along the raised patio, *1277 or that it acted in any way to prevent such a railing from being installed. Madden asserted as an undisputed fact that no railing was in place during the entire project until after his accident. Thus, there was no evidence that Summit View, Berry, or Tschantz removed or caused the removal of a safety guardrail. Madden also had no evidence that before his accident Summit View, Berry, or Tschantz ever participated in any discussion about placing a safety railing along the patio, became aware of any safety concern due to the lack of such a railing, or intervened in any way to prevent such a railing from being erected. Tschantz testified in deposition that if he had perceived a fall danger due to the raised patio he would probably have had to talk to Berry before putting up a guardrail, but there was simply no evidence that this hypothetical scenario ever arose or that Summit View made any promise or voluntarily assumed any duty to provide a guardrail.
Second, as the trial court pointed out, the absence of a guardrail was open and obvious to all of the contractors who worked at the site. Madden's evidence showed that the patio was used as a walkway and platform by the workers on the project, including himself, from the time the retaining wall was first built until the accident, and that no railing was ever in place. It was undisputed that Madden had worked in the area where the fall occurred many times before. Thus, as Busch Electric's onsite foreman, Madden was in as good a position as Summit View, Berry, or Tschantz to perceive that there was no guardrail along the raised patio to prevent a fall. There is no evidence whatsoever that Madden or Busch Electric were in any fashion induced to rely on the mistaken belief that Summit View had removed that hazard from the worksite.[3]
Third, there was no evidence that Summit View, Berry, or Tschantz directed Madden to perform his work in a manner that was especially dangerous due to the absence of a railing. It was undisputed that Madden directed his own work at the Welsh project and that Summit View had no involvement in the manner in which he performed the work or chose to uncoil the electrical wire that he was working with when the fall occurred. While Madden came forward with evidence that Summit View (along with Pacific Gas & Electric) may have had some input regarding the location of the electrical box he was working on at the time of the fall, the causal relationship between that decision and Madden's accident is far too remote to support an inference that Summit View's affirmative conduct contributed to the fall danger that ultimately materialized.
*1278 The trial court aptly relied on Hooker as a benchmark for deciding the present case. Compared to Caltrans in the Hooker case, Summit View retained far less control over or responsibility for safety at the jobsite. Summit View also bore far less responsibility for the unsafe practice that led most immediately to Madden's injurywalking backward on a raised patio on a single occasion with no observersthan Caltrans bore for the crane operator's omission to extend the outriggers after he was made to repeatedly retract them in order to accommodate traffic Caltrans allowed on the overpass. Equally, the conduct for which Madden charges Summit View with liabilityfailing to install a guardrailis, if anything, more passive than the conduct for which Caltrans was faulted in Hookerforcing the crane operator to engage in the risky practice of retracting the outriggers to serve Caltrans's operational needs.
At oral argument, Madden's counsel stressed that this was a premises liability case governed by the principles of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561], not a Privette-Toland case. As counsel acknowledged, however, Privette-Toland would apply unless only the general contractor would have had the authority to take reasonable safety precautions to alleviate the hazard. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673-674 [36 Cal.Rptr.3d 495, 123 P.3d 931].) Madden's evidence on this point was based on the testimony of a subcontractor Summit View hired to provide supervision at the site that (1) if he noticed a fall safety hazard, he would have needed to discuss constructing a guardrail with Summit View because he had no means of paying for it; and (2) his contract with Summit View did not include any money to build a retaining wall or a guardrail around the raised patio. But this evidence fails to establish that Madden's employer was powerless to take other reasonable safety precautions such as putting up a temporary barrier or cordon between the electrical panel and the edge of the patio while Madden was working in that location. Madden's premises liability claim is based on no more than a convenient assumption that his employer lacked the authority to take reasonable precautions to protect him from the kind of accident that occurred.
The trial court properly analyzed the facts and the applicable law to determine that there was no triable issue of material fact with regard to whether any affirmative conduct on Summit View's part contributed to the creation or persistence of the hazard causing Madden's injuries. (Kinney, supra, 87 Cal.App.4th at p. 30.)
3. Effect of Cal-OSHA Regulations
Relying on Elsner v. Uveges (2004) 34 Cal.4th 915 [22 Cal.Rptr.3d 530, 102 P.3d 915] (Elsner) and Evard v. Southern California Edison (2007) 153 *1279 Cal.App.4th 137 [62 Cal.Rptr.3d 479] (Evard), Madden argues that the Cal-OSHA regulations requiring railings to be placed on elevated platforms may be used to show that Summit View "affirmatively contributed" to his injury or otherwise had a duty of care to guard the raised patio. We do not agree.
Elsner held that under Labor Code section 6304.5, as amended in 1999,[4] "Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions." (Elsner, supra, 34 Cal.4th at p. 928.) However, in the course of determining that the amended Labor Code section 6304.5 could not be applied retroactively to the case before it, Elsner also found that the admission of Cal-OSHA provisions would not expand the defendant general contractor's common law duty of care toward the plaintiff employee of a subcontractor. (34 Cal.4th at p. 937.)
We agree with the Court of Appeal in Millard, supra, 156 Cal.App.4th 1338, which held that Labor Code section 6304.5, as construed in Elsner, did not in any way abrogate the Privette-Toland doctrine, nor expand a general contractor's duty of care to an injured employee of a subcontractor. (Millard, at p. 1352.) Elsner involved a suit by a roofing subcontractor's employee who had been injured at a construction project when scaffolding constructed by the defendant general contractor collapsed. (Elsner, supra, 34 Cal.4th at p. 924.) Thus, as Millard observed, Privette was not at issue in Elsner because the plaintiff was attempting to impose direct liability on the general contractor for its own affirmative conduct in providing unsafe equipment, not vicarious liability based on its failure to act. (Millard, at pp. 1350-1351.) *1280 Millard held that a claimed Labor Code safety violation was insufficient to create a triable issue of material fact as to the general contractor's duty of care where there was no evidence the general contractor affirmatively contributed to the plaintiff's injuries. (Id. at pp. 1352, 1353.)
We note too that Elsner did not discuss or distinguish Privette, Toland, or Hooker. Further, we find no indication in Elsner or in the text of amended Labor Code section 6304.5 that the Legislature intended to bring about a sweeping enlargement of the tort liability of those hiring independent contractors by making them civilly liable for Cal-OSHA or other safety violations resulting in injuries to the contractors' employees.
Thus, notwithstanding Elsner, safety regulations are only admissible in actions by employees of subcontractors brought against general contractors where other evidence establishes that the general contractor affirmatively contributed to the employee's injuries. (Millard, supra, 156 Cal.App.4th at p. 1352; see also, Evard, supra, 153 Cal.App.4th at p. 147.) Since we have found no triable issue of material fact with respect to the latter issue, the Cal-OSHA regulations cited by Madden are not sufficient in themselves to create a triable issue of fact on the issue of Summit View's duty of care. As discussed below, we would be constrained to arrive at the same conclusion even if we adopted the analysis in Evard, a case that reaches a result at least arguably at odds with Millard.
In Evard, an employee of an independent contractor hired to work on a billboard sued the billboard's owners for injuries the employee suffered when he fell from the billboard. (Evard, supra, 153 Cal.App.3d at p. 141.) A general industry safety order required the owners to provide guardrails or other fall protection measures. (Id. at p. 146.) The Evard court construed the order as imposing a nondelegable duty on the billboard owners. While purporting to apply the affirmative contribution requirement set out in Hooker, Evard reversed a summary judgment in favor of the billboard owners and held that the owners' mere omission to comply with the order was sufficient in itself to create a triable issue of material fact as to whether the owners "breached their nondelegable duty in a manner that affirmatively contributed to Evard's injury." (Id. at pp. 147-149; cf. Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 64 [29 Cal.Rptr.3d 641] (Ruiz) [Lab. Code, § 6400 does not establish nondelegable safety duty by independent contractor to employees of subcontractor].)
However, even if we reject Millard and Ruiz and follow the approach taken in Evard, the Cal-OSHA regulation that Madden relies on hereCalifornia Code of Regulations, title 8, section 1621is insufficient to create a triable issue of material fact on the record before us. Section 1621 states in relevant *1281 part: "Unless otherwise protected, [protective] railings . . . shall be provided along all unprotected and open sides, edges and ends of all . . . elevated platforms, surfaces, . . . or other elevations 7 ½ feet or more above the ground, floor, or level underneath." The evidence shows that the height of the patio from the ground varied from two to eight feet along its 30-to-40-foot length, depending on the slope of the adjacent land. Madden did not know how high he was off the ground when he fell and no one else witnessed the accident. Madden is therefore unable to establish that a safety railing would have been required by section 1621 at the location where he fell. Since he cannot prove a causal relationship between his injuries and Summit View's asserted omission to perform a nondelegable duty, Madden cannot avoid summary judgment even under Evard.
For these reasons, we hold that summary judgment was properly granted to Summit View in this case.
III. DISPOSITION
The judgment is affirmed.
Stein, Acting P. J., and Swager, J., concurred.
NOTES
[1] This theory was based on section 414 of the Restatement Second of Torts, which provides in pertinent part: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others . . . caused by his failure to exercise his control with reasonable care." (See Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 32 [103 Cal.Rptr.2d 594] (Kinney).) According to the drafters, section 414 is typically applicable "`when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job.'" (Kinney, at p. 32, quoting Rest.2d Torts, § 414, com. b, pp. 387-388.)
[2] Kinney, a case cited with approval by the Supreme Court in Hooker, also upheld a summary judgment for a general contractor sued for on-the-job injuries suffered by a subcontractor's employee. In Kinney, the record also included extensive evidence that the general contractor had plenary authority over worksite safety under its contract with the site owner and that its site superintendent had a full right to intervene to correct any condition he deemed to be unsafe. (Kinney, supra, 87 Cal.App.4th at pp. 30-31.)
[3] The obviousness of the hazard does not in and of itself relieve Summit View of any duty it might have to eliminate it. (See Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122 [273 Cal.Rptr. 457].) It does, however, negate any claim by Madden that Summit View induced him to believe the hazard did not exist or that the hazard was otherwise concealed from him but known to Summit View.
[4] The relevant text of Labor Code section 6304.5, as amended in 1999, with deletions in strikethrough and additions in italics is as follows: "It is the intent of the Legislature that the provisions of this division, and the occupational safety and health standards and orders promulgated under this code, are shall only be applicable to proceedings against employers brought pursuant to the provisions of Chapter 3 (commencing with Section 6500) and 4 (commencing with Section 6600) of Part 1 of this division for the exclusive purpose of maintaining and enforcing employee safety. [¶] Neither this division nor any part of this the issuance of, or failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action arising after the operative date of this section, except as between an employee and his or her own employer. Sections 452 [permissive judicial notice] and 669 [negligence per se] of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute, ordinance, or regulation. . . ." (See Stats. 1999, ch. 615, § 2, deleted language included as strikethrough text; see also Amendments, Deering's Ann. Labor Code (2006 ed.) foll. § 6304.5, p. 424.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266502/ | 440 Pa. 598 (1970)
Commonwealth
v.
Rogers, Appellant.
Supreme Court of Pennsylvania.
Submitted March 16, 1970.
October 9, 1970.
*599 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Vedder J. White, Public Defender, for appellant.
William E. Pfadt, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE POMEROY, October 9, 1970:
In September, 1964, appellant, while represented by counsel, entered a plea of guilty to the charge of murder generally. At the subsequent hearing before the court en banc to determine his degree of guilt, appellant was adjudged guilty of murder in the second degree *600 and sentenced to imprisonment for a term of 8 to 20 years. No appeal was taken from that judgment of sentence. In 1966 appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. §§ 1180-1 et seq. From the denial of that petition, after an evidentiary hearing, the present appeal was taken.
In his petition appellant alleged that his conviction had resulted from the introduction into evidence of a coerced confession and of a statement obtained from him when he was without the assistance of counsel at a time when such assistance was constitutionally required. He did not allege, however, that his guilty plea had been unlawfully induced or that the existence of the allegedly coerced confession had been the primary motivation for his plea.
The law is well settled that a plea of guilty to a charge of murder generally is itself sufficient to sustain a conviction of murder in the second degree. Commonwealth v. Brown, 436 Pa. 423, 427, 260 A. 2d 742 (1970); Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 576, 227 A. 2d 662 (1967); Commonwealth v. Stokes, 426 Pa. 265, 267, 232 A. 2d 193 (1967). As a corollary to this rule we have held that the evidentiary use of a confession, improperly obtained, at the degree of guilt hearing after acceptance of a guilty plea is constitutionally harmless error if the defendant is convicted only of second degree murder. Commonwealth v. Robinson, 430 Pa. 188, 190, 242 A. 2d 266 (1968). Thus, even were we to assume that appellant's confession was improperly obtained, we could not conclude that his conviction had resulted from its evidentiary use.
After a guilty plea, the propriety of a confession may only be examined where the confession was the primary motivation for the plea and may, therefore, *601 have caused the plea to be unlawfully induced, Commonwealth v. Garrett, 425 Pa. 594, 229 A. 2d 922 (1967). In addition, as we have today held in Commonwealth v. Marsh, 440 Pa. 590, 271 A. 2d 481 (1970), relying on the recent decisions of the United States Supreme Court in McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970) and Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785 (1970), the defendant must also demonstrate that he was incompetently advised by counsel to plead guilty, under the circumstances, rather than stand trial. Neither in appellant's petition nor in his counsel's brief in the court below was any connection alleged between the confession and the plea. In appellant's brief before this Court, the contention is made that the confession motivated the plea. However, "[t]he well established doctrine that appellate courts will not entertain arguments raised for the first time on appeal applies with equal force to appeals from collateral hearings such as this. Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 216 A. 2d 57, cert. denied, 384 U.S. 966, 86 S. Ct. 1599 (1966)." Commonwealth v. Payton, 431 Pa. 105, 107, 244 A. 2d 644 (1968). At no point in these proceedings has there been any charge that appellant received poor advice from his counsel, let alone that counsel committed gross error in advising the plea of guilty. It follows that neither the contention that the confession motivated the plea nor the contention that the confession was illegally obtained can now be considered by this Court.[1]
*602 The court below correctly concluded that appellant presented no grounds upon which the relief he sought could be granted.
Order affirmed.
Mr. Justice ROBERTS concurs in the result for the same reasons noted in his concurring and dissenting opinion in Commonwealth v. Marsh, 440 Pa. 590, 596, 271 A. 2d 481 (1970).
NOTES
[1] The record reveals that careful consideration was given by the lower court to the circumstances surrounding the confession both at a pretrial suppression hearing and at the time of the introduction of the confession into evidence at the degree of guilt hearing conducted by a court en banc. The allegations of coercion and other constitutional infirmity were there held to be without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2217040/ | 256 Cal.App.2d 725 (1967)
OLGA ROTH, Plaintiff and Respondent,
v.
ROBERT L. KEENE, Defendant and Appellant.
Civ. No. 31262.
California Court of Appeals. Second Dist., Div. One.
Dec. 7, 1967.
Joseph W. Jarrett, Frank W. Woodhead and Henry F. Walker for Defendant and Appellant.
Brody & Grayson for Plaintiff and Respondent.
FOURT, J.
This is an appeal from a judgment in favor of plaintiff in an action for personal injuries.
Plaintiff instituted this action against several defendants. A motion by Keene doing business as Silverlake Termite Control for a directed verdict was denied. A 10-to-2 jury verdict was returned in favor of plaintiff against Keene and against Donald Gurwell, doing business as A-1 Fumigating Company, and against plaintiff in favor of defendant, Beller. Judgment on the verdict was entered March 31, 1966. Keene filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. A new trial motion was ordered granted unless plaintiff consented to a remission of all damages in excess of $4,500 and was ordered denied if such *726 consent be filed. Within the time prescribed plaintiff filed her consent to such remission and Keene's new trial motion was denied. Keene appealed from the judgment, the denial of his motion for judgment notwithstanding the verdict and the denial of this motion for a new trial. No appeal was taken by plaintiff from the judgment in favor of defendant Beller. No appeal was taken by defendant Gurwell from the judgment in favor of plaintiff.
The facts are set forth in appellant's brief in considerable detail and length. Under the circumstances we see no need to give more than a brief idea of the facts as recited in the brief. Mrs. Roth was injured on Saturday, June 30, 1962, while hanging some clothing in a closet of an apartment into which she was moving when she stepped into a trap-door hole in the closet floor. The lid or cover of the trap-door was leaning against the wall of the closet.
Keene had done some maintenance work on the premises; however the trap- door lid, or cover, was in place over the trap-door hole as of June 29, 1962, and Keene had completed his work on the premises. Apparently after Keene's work was finished the fumigator, Gurwell, came to the premises on June 29, 1966, to do his work. There was no agency relationship between appellant and any other defendant to the action. As stated in appellant's brief, "In short, there is no evidence of any negligence, personal or imputed, on the part of appellant Keene proximately causing respondent's injury" and "From the facts heretofore stated, it is seen that plaintiff's action is based upon the claim that the lid or cover of the closet trap-door negligently had been removed so as to leave the hole uncovered and that as a proximate result she received injury when she fell in the uncovered hole. Yet, there is no evidence upon which to impose legal responsibility upon appellant for the condition which thus existed." Further, the brief sets forth, "He [appellant] completed the portion of the work he was able to do by June 26, 1962, prior to the June 30th accident. There is no evidence that appellant thereafter engaged in any work on the premises either personally or through anyone for whom he could be vicariously liable. The burden rested on plaintiff to establish otherwise, if such be her claim."
The trial judge refused to refused to give an instruction [fn. 1]*727 submitted by appellant. Appellant now urges that the jury was confused as to the law with reference to appellant's responsibility and that the giving of the instruction would have settled the confusion under which the jury was laboring.
[1] Respondent has not seen fit to submit a brief in this case. The clerk of this court, pursuant to rule 17(b) of the Rules on Appeal, notified respondent, in effect, that the case would be submitted for decision on the record, and on the appellant's opening brief, unless respondent filed a brief. No brief has been forthcoming.
This court said in Mann v. Andrus, 169 Cal.App.2d 455, 458-459 [337 P.2d 473]: "Where the respondent does not file any brief we are under no duty to look up the law, nor are we required to make any search for evidence. [Citation.] We feel that we have no course open to us except to accept as true the statement of facts in the appellant's opening brief. [Citation.] Further, we may assume, as is apparently correct in this case, that the respondent has abandoned any attempt to support the judgment, and we may also assume that the points made by the appellant are meritorious. [Citations.]"
In Berry v. Ryan, 97 Cal.App.2d 492, 493 [217 P.2d 1015], it is set forth: "Since respondent has not filed a brief we assume that (1) the facts as stated in appellant's brief are true, (2) the evidence is insufficient to support material findings of fact of the trial court, and (3) respondent has abandoned any attempt to support the judgment, and that the ground urged by appellant for reversing the judgment is meritorious. [Citations.]"
"Applying the foregoing rule it is evident that if material findings of the trial court are not supported by the evidence the judgment should be reversed." (See also Duisenberg-Wichman & Co. v. Johnson, 120 Cal.App. 227, 228 [7 P.2d 1081]; Weinfeld v. Weinfeld, 159 Cal.App.2d 608, 612 [324 P.2d 342]; James v. James, 125 Cal.App.2d 417 [270 P.2d 538]; MacGregor v. Kawaoka, 132 Cal.App.2d 407, 409 [282 P.2d 130]; Grand v. Griesinger, 160 Cal.App.2d 397, 407 [325 P.2d 475]; Moreno v. Mihelis, 207 Cal.App.2d 449, 450 [24 Cal.Rptr. 582]; Perfection Paint Products v. Johnson, 164 Cal.App.2d 739, 740 [330 P.2d 829].)
In the case at hand, under the circumstances, we assume the facts as stated in appellant's brief are true, that the evidence is insufficient to support the verdict of the jury and the judgment and that respondent has abandoned any attempt to *728 support the judgment, and that the grounds urged by appellant for reversing the judgment are meritorious.
The judgment is reversed with directions to the trial court to grant appellant's motion for judgment notwithstanding the verdict.
Wood, P. J., and Lillie, J., concurred.
NOTES
[fn. 1] 1. "You are instructed that the general rule in the absence of certain exceptions not applicable here, is that one who employs an independent contractor is not liable to others for the negligence of the contractor in the performance of his work." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1366853/ | 160 Va. 587 (1933)
EDWARDS COMPANY, INCORPORATED
v.
ROBERT D. DEIHL.
Supreme Court of Virginia.
June 15, 1933.
C. S. Towles and R. O. Norris, Jr., for the plaintiff in error.
Raymond Sisson, for the defendant in error.
Present, Holt, Epes, Hudgins, Gregory, Browning and Chinn, JJ.
1. MASTER AND SERVANT -- Termination of Contract. -- A simple contract for hire is a contract at will and may be broken at election.
2. MASTER AND SERVANT -- Termination of Contract -- Burden of Proof. -- The rule that a contract for hire is a contract at will and may be broken at election is not inflexible, but the burden is on him who challenges it to show that it does not apply.
3. MASTER AND SERVANT -- Termination of Contract -- Employment of Captain of Fishing Vessel -- Case at Bar. -- In the instant case no express stipulation in a contract of employment of the captain of a fishing vessel fixed and time for the continuance of the employment. Plaintiff was told by an agent of the company operating the fishing vessel that he was not sure how long his company would continue to operate; that it rested upon conditions as they might develop. After operating the vessel for some time the crew of the vessel notified the company that they were going to leave, since they were not earning enough to live on, and did leave. The next day the company notified the plaintiff that his employment was terminated. There was nothing obscure about the contract. By no fair inference could it be said that the company intended to operate for any definite time, or to tie up the steamer and continue to pay the captain after a crew, which he himself hired, had deserted.
Held: That a judgment for plaintiff must be reversed.
Error to a judgment of the Circuit Court of Northumberland county, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error. The opinion states the case.
HOLT
HOLT, J., delivered the opinion of the court.
In this case Robert D. Deihl, master of a fishing steamer, has recovered a judgment against Edwards Company, Incorporated, in damages for breach of contract.
Menhaden is a fish not fit for food but valuable for its oil and for certain by-products, and is caught in vast quantities along the Atlantic littoral and in contiguous bays. Reedsville, in Northumberland county, is the major base of this industry. There are located eight factories which process this catch; all of them operate sea-going fishing steamers. Once prosperous, they in recent years, for sundry reasons, have become doubtful ventures. By statute the fishing season is from the third Tuesday in June to December 1st.
Captain Deihl was a master of twelve or thirteen years' experience and out of a job. On December 9, 1930, he wrote to the defendant company asking to be appointed captain of its steamer "Messick." That company in reply invited him to call. This he did in December. W. A. Edwards, who was president and general manager of the company, went over the situation with him. Nothing was done. He called again. On both of these occasions Edwards said that he was not sure that his company would operate at all in the coming year, and that if his factory did open up there was no certainty about how long it would continue to operate. On this basis Deihl was hired. He said: "I was willing and did take the risk of whether or not he would start fishing and the risk of how long he would fish after starting." The outlook was anything but promising, but both Deihl *589 and the company were willing to take chances and knew at the time that they were taking chances. Naturally nothing was said about duration of employment. It rested upon conditions as they might develop. Final terms appear in this letter of Mrach 17, 1931: "CAPTAIN ROBERT DEIHL,"
"Tibitha, Va. "DEAR SIR:
"If conditions are such that we can go fishing at or near the beginning of the season the following will be the scale of wages you will use in hiring men:"
"7 men at $30.00 per month and 1 1/2 cents per M."
"15 men at $25.00 per month and 1 1/2 cents per M."
"Mate $50.00 per month and 6 cents per M."
"Pilot $90.00 per month and 3 cents per M."
"Cook $45.00 per month and 2 cents per M."
"Drive boat $45.00 per month and 2 cents per M."
"Chief engineer $90.00 per month and 2 cents per M."
"Asst. engineer $70.00 per month and 2 cents per M."
"Captain 20 cents per M."
"3 firemen $30.00 per month and 1 1/2 cents per M."
"At the above scale the men are to board themselves, but we will sell all provisions at cost plus a reasonable handling charge. There is no certainty that we can even fish at the above scale of wages under existing conditions, but if things imrpove we want to fish and will try our best, but there is no obligation on our part that we will fish the Str. W. L. Mesick."
"We trust we will have your co-operation."
The captain employed the mate, pilot and crew; the company the engineers and firemen. All of them were paid by the company upon the basis of the letter of March 17th. Fishing began on July 7th, and continued until July 24th, when the ship tied up at Norfolk, at which time 364,000 fish had been caught. By then the company's steamer "Lennen" had caught 599,000 fish. The steamer "Edwards" caught 705,000 fish, and the steamer "E. Warren Edwards" *590 caught 288,000 fish. On Friday, July 24th, most of the crew notified the company that they were going to leave, since they were not earning enough to live on. At the request of the company and for additional promised compensation, they agreed to fish for another day. This they did and caught nothing. The next day the company notified Deihl that his employment was terminated. He on his part declined to accept this discharge, upon the ground that he had been hired for the season and was entitled to be paid on that basis. The company offered to let him and Captain Williams continue to operate the steamer "E. Warren Edwards" on the same base pay as that which he had theretofore received, they to divide their earnings between them. This Deihl refused.
The company afterwards secured another crew and captain, and operated the "Messick" until the end of the season.
We have seen that Deihl was employed for no definite time, and that there was no certainty that the company could fish even at the wage scale offered, and that "there is no obligation on our part that we will fish the steamer W. L. Messick." It may be readily conceded that Deihl's poor catch was fisherman's luck, yet the fact remains that it was so poor that his crew left him. Certainly, for this the company was in no wise responsible.
[1, 2] A simple contract for hire is a contract at will and may be broken at election. Title Ins. Co. Howell, 158 Va. 713, 164 S.E. 387; Hoffman Specialty Co. Pelouze, 158 Va. 586, 164 S.E. 397; Conrad Ellison-Harvey Co., 120 Va. 458, 91 S.E. 763, 766, Ann. Cas. 1918B, 1171; Coppage Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960; Resener Watts, Ritter & Co., 73 W.Va. 342, 80 S.E. 839, 52 L.R.A.(N.S.) 629; Labatt on Master & Serv., section 159; Lile's Notes on 1 Min. Inst., page 54; Williston on Contracts, section 39. This rule is not inflexible, but the burden is on him who challenges it to show that it does not apply. Resener Watts, Ritter & Co., supra. Circumstances themselves sometimes give us a *591 conclusive answer. Admiral Byrd could not have discharged one of his sailors when on the Antarctic continent. Often no express contract is necessary.
"'There was no express stipulation, either written or oral, which fixed the time for the continuance of the employment of the plaintiff by the defendant. That element of their contract depended upon the understanding and intent of the parties; which could be ascertained only by inference from their written and oral negotiations, the usages of the business, the situation of the parties, the nature of the employment, and all the circumstances of the case. It was an inference of fact, to be drawn only by the jury. The whole question, What was the contract existing between the parties, at the time the defendants undertook to terminate the employment?, was properly submitted to the jury.'" Tatterson Suffolk Mfg. Co., 106 Mass. 56, cited with approval in Conrad Ellison-Harvey Co., supra.
There is nothing obscure about the contract in judgment. Its setting shows that it was one of hazard. By no fair inference can it be said that the company intended to operate for any definite time, or to tie up a steamer and continue to pay the captain after a crew, which he himself hired, had deserted. Here, with the crew gone, the company had to make the best of a bad job. It got another captain who with his crew undertook to fish, and did fish, the steamer on the same terms under which Captain Deihl failed. The most that we can say is that he was unfortunate, but for that the company was not responsible.
The judgment complained of must be reversed and final judgment entered for the defendant.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2429297/ | 204 F. Supp. 2d 140 (2002)
LIBERTY MUTUAL INSURANCE COMPANY
v.
Alan S. ROSENTHAL, Caterina A. Rosenthal and Rosenthal Chiropractic and Rehabilitation, Inc.
No. CIV.A. 95-12363-RGS.
United States District Court, D. Massachusetts.
May 13, 2002.
*141 Paul F. Ware, David R. Zipps, Goodwin, Procter & Hoar, Boston, MA, for Plaintiff.
Mark A. Berthiaume, Goldstein & Manello, P.C., Boston, MA, Fred H. Bartlit, Jr., David P. Berten, Donald E. Scott, Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, for Defendants.
MEMORANDUM REGARDING ORDER PERMITTING LIBERTY MUTUAL TO REACH AND APPLY DISABILITY INCOME BENEFITS
STEARNS, District Judge.
On April 16, 2002, the First Circuit Court of Appeals, while retaining jurisdiction, authorized this court to proceed with a resolution of the issue identified in its March 21, 2002 interim order; specifically, the extent to which disability benefits owing to defendant Alan Rosenthal are exempted by M.G.L. c. 175, § 110A, from execution by plaintiff Liberty Mutual Life Insurance Co. (Liberty Mutual), a judgment creditor.[1] By way of background, on April 14, 2000, the court entered a judgment in excess of $6,000,000 against Alan Rosenthal and his estranged wife, Caterina Rosenthal, after a jury returned a verdict for Liberty Mutual in a civil RICO case. While Liberty Mutual came to a compromise settlement with Caterina Rosenthal, the bulk of the judgment remains unpaid. Liberty Mutual has waged a relentless and largely unsuccessful campaign to collect the outstanding balance from the real or imagined assets of Alan Rosenthal.
One such asset that Liberty Mutual has been able to identify is $11,000 in monthly disability benefits being paid to defendant Alan Rosenthal under four policies issued by three separate insurers.[2] On September 7, 2001, this court allowed a motion by Liberty Mutual to reach and apply these benefits subject to the exemption provided by M.G.L. 175, § 110A. The present dispute is over how that exemption is to be applied.
M.G.L. 175, § 110A, reads as follows:
So much of any benefit under a policy of insurance insuring against disability from injury or disease as does not exceed four hundred dollars for each week during any period of disability covered thereby shall not be liable to attachment, trustee process or other process, or to be seized, taken, appropriated or *142 applied by any legal or equitable process or by operation of law, either before or after payment of such benefit, to pay any debt or liabilities of the person insured under such policy, but this exemption shall not apply where an action or suit is brought to recover for necessaries contracted for during said period and the writ or bill of complaint contains a statement to that effect.
The parties agree that there is no relevant precedent interpreting the statute. They vehemently disagree, however, over the statute's proper interpretation. Rosenthal advocates a literal reading, focused on the statute's description of the affected policy in the singular, that is, "[s]o much of any benefit under a policy of insurance insuring against disability ... as does not exceed four hundred dollars for each week [shall be exempt]" (emphasis added). From this reading, Rosenthal claims an entitlement to an exemption of up to $1600 a month on each of his four active policies, or a combined monthly total of $5,900.
Nowhere in the statute is there a provision for carving up the weekly exemption among "multiple policies" of insurance on a "pro rata basis" as Liberty Mutual has requested this Court do. As such, the plain meaning of the statute mandates that the exemption apply separately to each "policy" of disability insurance.
Rosenthal Memorandum, at 3. Liberty Mutual, without conceding that Rosenthal reads the statute correctly, argues that the statute cannot mean what it literally seems to say.
Under Rosenthal's theory, a debtor holding multiple policies would be able to exempt more than a debtor who holds a single policy regardless of the value of the benefits provided under the policy or policies. The Legislature could never rationally intend to allow only an exemption of approximately $1,600 per month to person A with a single disability policy paying $11,000 per month in disability benefits, but to allow an exemption of over $6,400 per month to person B (e.g. Rosenthal) with four policies paying $11,000 per month in benefits, or to allow a $9,600 exemption to person C with six policies paying $11,000 per month in benefits.
Liberty Reply Memorandum, at 5.
Words in a statute are to be given their plain meaning unless a literal interpretation leads to an absurd result. Summit Inv. and Development Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir.1995). As the Supreme Judicial Court has observed, "[r]eason and common sense are not to be abandoned in the interpretive process, as it is to be supposed that the Legislature intended to act in accordance with them." Wild v. Constantini, 415 Mass. 663, 668, 615 N.E.2d 557 (1993). "We will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable." Attorney General v. School Committee of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 (1982) (a literal reading of a statute intended to provide private school students with equal access to school transportation would require that "a child living in Essex and attending private school in Boston, Worcester, Albany or New York, would be entitled to transportation to and from his school every day," a result that would be "absurd [and] unreasonable"). When such is the case, "[t]he legislative intention in enacting the statute must be ascertained, `not alone from the literal meaning of its words, but from a view of the whole system of which it is but a part ....'" Killam v. March, 316 Mass. 646, 650, 55 N.E.2d 945 (1944).
The "whole system" of which M.G.L. 175, § 110A, is a constituent part, is a complex of legislative dispensations and *143 limitations intended to prevent debtors from becoming public charges while protecting the right of creditors to obtain satisfaction of their rightful debts. See Shamban v. Masidlover, 429 Mass. 50, 53, 705 N.E.2d 1136 (1999). To accomplish the first goal, the Legislature has enacted laws exempting from execution the basic necessities of life, including shelter, food, clothing, public assistance money, and the essential tools of the debtor's trade or business. See M.G.L. c. 235, § 34 (property exempt from execution); M.G.L. c. 188, § 1 (the homestead exemption).[3] To accomplish the second goal, the Legislature has placed strict limits on the value of the property for which an exemption may be claimed. A debtor, for example, may only shield from execution $3,000 in household furniture, $500 in trade tools, $300 in provisions, and so on. That M.G.L. c. 175 § 110A, fits neatly into this system is illustrated by the exception to the $400 weekly exemption contained in the statute, permitting a creditor to levy for any sums owing for necessaries extended on credit, the exemption notwithstanding.
The point of the limitations is to ensure that exemptions intended to sustain a debtor in the necessities of life do not become a means of sheltering a debtor's assets. Thus, an exemption can only be claimed once. An estate of homestead, for example, "may be acquired on only one principal residence for the benefit of a family." M.G.L. c. 188, § 1. Monthly rent may be retained for only one apartment, and so it continues. A reading of M.G.L. c. 175, 110A, that is harmonious with the Legislature's overall purpose counsels strongly against Rosenthal's literal reading of the statute. Permitting a debtor to infinitely maximize the disability exemption by the deliberate or fortuitous splitting of his policies produces a result that is neither equitable nor consistent with the Legislature scheme.
This conclusion is reinforced by analogous interpretations by the federal courts of the scope of the exemptions contained in the federal Bankruptcy Code. In Re Christo, 192 F.3d 36 (1st Cir.1999), is a good example. There, the debtor argued that under 11 U.S.C. § 522(d)(11)(D), which provides for an exemption of up to $15,000 of "a payment ... on account of personal bodily injury," she was entitled to take three such exemptions on each of three personal injury claims. The First Circuit said no.
First, the language of the exemption in 11 U.S.C. § 522(d)(11)(D) refers to "a payment." While there is some ambiguity, the more natural reading is that there is a single exemption. Second, the overall scheme of exemptions in § 522(d)(11) displays a pattern of allowing one exemption per category. Third, the purpose of exemptions is to provide support for the debtors at a reasonably necessary level. The reasonably necessary level should not, logically, vary to provide more in total exemption amount to someone who is in three minor accidents than one who is in a single catastrophic accident. That is particularly so given that there are the exemptions in §§ 522(d)(10)(A) and (C) for social security and disability benefits. That is, the exemption for "a payment in account of personal bodily injury" is not a proxy for degree of disability. Fourth, the reading of the exemption as limited to one $15,000 exemption more equitably treats similarly situated debtors.
In re Christo, 192 F.3d at 38.
While it is true that the Legislature in M.G.L. c. 175, § 110A spoke of "a policy" *144 rather than "a payment," it is clear from the structure of the sentence that the Legislature's focus was on the "benefit" to which the exemption was intended to apply, and not the number of policies that a debtor might own. Thus, I conclude that the statutory exemption applies to the aggregate payment to which Rosenthal is entitled and not separately to each of the policies under which the payments are made.
ORDER
For the foregoing reasons, it is ADJUDGED and DECLARED that defendant Alan Rosenthal is entitled to a weekly desirability insurance exemption pursuant to M.G.L. c. 175, § 110A, of $400 and no more. The exemption is to be applied to his policies in the order of their purchase until the exemption is exhausted.[4]
SO ORDERED.
NOTES
[1] Liberty Mutual's suggestion that the court determined this issue in an earlier January 30, 2002 Memorandum and Order is not correct.
[2] Rosenthal presently receives benefits under policies issued by Hartford Insurance Company ($1,100 per month), National Life of Vermont ($3,500 per month) and Massachusetts Mutual (two separate policies totaling $6,757.50 per month). Benefits under a fifth policy issued by Allianz ($1,000 per month) expired in 2001.
[3] The Homestead Act, M.G.L. c. 188, §§ 1-1A allows a homeowner to exempt from attachment or levy on his principal residence up to $300,000 by filing a Declaration of Homestead. M.G.L. c. 235, § 34, exempts two hundred dollars a month necessary to pay rent.
[4] Since the entry of this court's March 21, 2002 Order, a similar dispute has arisen as to whether Rosenthal's retirement and investment annuities are exempt from execution under M.G.L. c. 235, § 34A, and M.G.L. c. 175, § 119A. The Court of Appeals may wish to consider authorizing this court to proceed with a decision on this issue as well, notwithstanding the pending appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2197459/ | 770 N.W.2d 852 (2009)
IN RE V.S.
No. 09-0101.
Court of Appeals of Iowa.
April 22, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265391/ | 619 A.2d 515 (1993)
UNITED STATES, Appellant,
v.
Byron D. BELLAMY, Tor L. Wallace, Dion L. Anderson, Tommy M. Murray, Appellees.
Nos. 92-CO-833 to 92-CO-836.
District of Columbia Court of Appeals.
Argued December 4, 1992.
Decided January 26, 1993.
*516 Stephen P. Anthony, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fischer, Thomas C. Black and Martin Dee Carpenter, Asst. U.S. Attys., Washington, DC, were on the brief, for appellant.
Richard E. Holliday, Jr., Washington, DC, appointed by this court, for appellee Tommy M. Murray.
Stanley K. Foshee, Alexandria, VA, appointed by this court, for appellees Byron D. Bellamy, Tor L. Wallace, and Dion L. Anderson. Mark A. Bradley, Washington, DC, appointed by this court, was on the brief for Byron D. Bellamy. Gary A. Oshinsky, Washington, DC, appointed by this court, was on the brief for Dion Anderson.
Before ROGERS, Chief Judge, FARRELL, Associate Judge, and KERN, Senior Judge.
ROGERS, Chief Judge:
The government appeals[1] the order suppressing physical evidence and a statement of appellee Anderson on the ground that the police unlawfully stopped a car in which appellees were riding and from which the police seized a pistol and ammunition. We affirm.
I
On December 11, 1991, about 11:30 p.m. two undercover police officers driving an unmarked dark blue 1977 Pontiac Firebird stopped at a red light at 13th and I streets, N.W. A brown Maverick with four young African-American males pulled up along the right side of the officers' car at the red light.[2] Officer Andre Minzak, a nineteen year veteran of the Metropolitan Police Department who was assigned to the second district, was driving the officers' car. He looked around his partner at the occupants of the Maverick.[3] According to Officer Minzak,
The driver of the vehicle looked over to his left at Officer Caine and myself, stuck his finger up in the air as a child might do with attempt playing that he had a gun in his hand, pointed a finger at us and mouth the word Pow as if a round was being fired from that gun and then snickered, looked forward, the light turned and they drove off.[4]
*517 Officer Sean O'Hara Caine, on the police force for two and one half years, who was Officer Minzak's partner, did not mention the gesture during his testimony, and Officer Minzak testified that to his knowledge Officer Caine did not see the gesture. No furtive gestures by the youngsters in the car were observed.
Officer Minzak thought that the gesture was done "in a threatening manner" and that the driver, appellee Murray, "possibly had a weapon in that vehicle or on his person" and might intend to use it, indeed, that Officer Minzak's own life "could possibly be in danger." He suspected the presence of a gun because of the gesture, the late hour (11:30 p.m.), the high-crime area (known for prostitution), and "several recently highly publicized incidents of traffic altercations involving gunfire."[5] The officer explained that his suspicions were aroused "knowing what the climate of behavior on the streets is in the last few years." However, the officer admitted that he did not recall any drive-by shootings in the area in which appellees were stopped. Officer Minzak also admitted that he had not seen a gesture like that before, much less found a gun in a car after seeing a car occupant make such a gesture.[6] He denied that his training had told him to be on the lookout for certain kinds of individuals.[7]
Appellees' car drove off when the light changed. Officer Minzak told his partner that he thought that the situation "bears further checking out," and he and Officer Caine followed appellees for at least five blocks and three turns, from 13th and I past 9th and Pennsylvania and onto 9th street. As they followed the car, they called for a marked police car, which stopped appellees' car on the 200 block of 9th street. At no time had appellees committed any traffic violations. Appellees' car stopped as soon as the marked police car put on its emergency lights.
The officers exited their cars and ordered appellees out of their vehicle. When appellees' car was stopped, there were at least four police cars and seven police officers present. Some of the officers had their guns drawn. The officers forced two appellees to lie down on the street, and the other two appellees to place their hands against a car. When appellees got out of their vehicle, the left rear door was left open, and an officer saw a gun in plain view on the floor board in front of the rear passenger seat behind the driver. The police asked appellees who owned the gun, but no one responded. The officers found ammunition in a white pill bottle on the rear seat. After appellee Anderson had been read his Miranda[8] rights, Officer Caine asked who owned the gun, and appellee Anderson said the gun was his. Appellee Murray owned the car.
Appellees were each charged with carrying a pistol without a license, possessing an unregistered firearm, and unlawfully possessing ammunition. D.C.Code §§ 22-3204(a) (Supp.1992), 6-2311(a) (1989 Repl.), 6-2361 (1989 Repl.). They filed motions to suppress, and following an evidentiary hearing the trial judge found:
*518 I think the operative facts are very straight forward. On a day in the District of Columbia a police officer with a partner in an unmarked car stopped at a traffic light. The defendants occupy another car which pulls to the light. The driver of the car occupied by the defendants leans over and with hand in the symbol of a pistol points it at the officers and mouths a word the officer understands to be pow. There's nothing in the record to suggest that the defendants knew that the individuals in the car, who were objects of that crude and unfortunate gesture, were police officers. I suggest that if they were, that there might be probable cause to find that the offense of assault of a police officer had been committed under the theory of intimidation as that action is prohibited under the assault statute.
The Government argues that there is reasonable basis for the officer to stop the car because of threats. It is significant that when the light changed the cars pulled off without further incident....
I don't find the threat. I think under other circumstances to make such a rude, crude and inappropriate gesture could, as is it was relatively roundly agreed, have resulted in these four gentlemen being shot had the person in the car had a weapon or if the incident had escalated and Mr. Anderson had taken his weapon and there had been an exchange of shots as all too frequently occurs in the District of Columbia.
If the incident had, as there was some discussion, racial animosity between the four young African American men and two White officers, I'm very sorry. It's another sad day for race relations.
I grant the motions to suppress.[9]
II
The government contends that the trial judge erred in granting the suppression motions because the police had grounds to make a Terry[10] stop, that stop was not impermissibly intrusive, and the physical evidence, as well as appellee Anderson's statement, were lawfully obtained. More particularly, the government argues that the police had grounds for a brief investigative detention of appellees' car as a result of "the combination of two factors: (1) the threatening and intimidating conduct of appellee Murray came very close to being a crime in itself, and (2) Murray's conduct gave the officers an objective basis to suspect that there was a gun in the car." The government argues, taking no issue with the trial judge's factual findings, that the trial judge's legal conclusion regarding the stop "placed an undue limit on the officers' ability to investigate suspected criminal activity."[11] Appellees respond that the police did not have *519 reasonable articulable suspicion of wrong-doing sufficient to stop them, and further, that even if stopping the car were a permissible Terry stop, it became an arrest without probable cause when seven officers, some with guns drawn, surrounded the car, ordered appellees out of the vehicle, and placed two appellees on the ground and the two other appellees against the car.[12]
As recently recapitulated, this court independently reviews the trial court's conclusion of whether articulable suspicion existed, but defers to the trial court's "underlying factual findings." (Marvin) Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991) (citations omitted). The government concedes, for purposes of these consolidated appeals, the standing of appellees to raise Fourth Amendment suppression arguments. See generally Lewis v. United States, 594 A.2d 542, 544-45 (D.C.1991) (requirements for standing to protest search), cert. denied, ___ U.S. ___, 112 S.Ct. 1225, 117 L.Ed.2d 460 (1992).
The Supreme Court made clear many years ago that:
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man [or woman] of reasonable caution in the belief" that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.
Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880 (footnotes and citations omitted). Accordingly, the Court concluded that to justify a particular official intrusion, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. The Supreme Court instructs that "in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his [or her] inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience." Id. at 27, 88 S.Ct. at 1883 (citation omitted). See also Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (vehicles cannot be stopped in officers' unrestricted discretion; there must be at least reasonable suspicion that suspects have violated the law, or neutral, non-discretionary checkpoints).[13] This court evaluates the lawfulness of Terry stops in light of the particular activity of the person stopped; the officer's knowledge about the activity, the person, and the area; and the immediate reaction of the person approached by the officer. Dockery v. United States, 385 A.2d 767, 770 (D.C.1978) (citation omitted).
This is not a case in which the police had any prior knowledge of the people inside of the car; nor did the police have any subsequent *520 knowledge of those persons as a result of information obtained from a police computer check before the car was stopped. There was no violation of the traffic laws by appellees, no evasive action by appellees when the marked police car put on its overhead lights and ordered the car to stop, nor any gesture by an occupant of the car other than Murray's hand gesture. There also was nothing to suggest that appellees knew that the undercover officers were policemen. Thus, the only elements available to support Officer Minzak's suspicion that appellees had a gun were the driver's gesture and mouthed word "pow," the time of night, the "high-crime" area, and the officer's experience and knowledge of past drive-by shootings under different circumstances.
The trial judge could properly conclude that appellee Murray's gesture did not give Officer Minzak reasonable articulable suspicion that appellees had a gun or intended to use one. The gesture was, as the trial judge found, rude, crude and inappropriate, but it did not constitute a threat. See page 18, infra. There was no context or motive on which the police officer could rely to infer that appellee Murray or the other appellees might have a gun in the car or that he (or they) might actually intend to act on any insult or gesture made "as a child might do."[14] This circumstance is in sharp contrast to cases on which the government relies.[15] The gesture was not only an isolated incident, but it occurred in circumstances totally unlike those in which a police officer has articulable suspicion that a person has a weapon as a result of seeing either a bulge in an already-stopped suspect's clothes or a furtive gesture as if to hide a weapon.[16] Murray's gesture was *521 not even furtive; he did not act as if he were trying to hide anything from the officer's view, but instead directed his gesture towards the officer. Furthermore, upon making the gesture, appellee Murray turned away, waited for the traffic light to change, and drove off when the light turned green, hardly circumstances suggesting that he intended to act on his insult to the undercover officers. There is not even the aspect of flight present in the instant case.[17] Moreover, how others might react if appellee Murray were to repeat his rude gesture in the future could not provide the police with articulable suspicion that Murray had a gun.[18] Nor did Officer Minzak testify that he suspected appellees of criminal activity but was unsure of exactly which crime was involved; rather he testified that he had a single, clear suspicion that appellees had a gun and might use it.[19] However, in the absence of a threat, which the trial judge found was nonexistent, the officer's suspicion that appellees had a gun lacked a reasonable and articulable basis.[20]
The other factorsthe time of night, the area of the city, and the officer's experience with the area or type of crimeare neither individually dispositive nor, in combination, sufficient to support a reasonable suspicion that there was a gun in the car.[21]*522 The "late hour" was only 11:30 p.m., but in any event, this factor appears usually to focus on the officer's potential vulnerability rather than the intent of the suspect.[22] The "high crime area" was known for prostitution, not drugs or violence.[23] While Officer Minzak was aware of drive-by shootings in the past several years in the District, ["all over the city"] he knew of none in the relevant area nor any that had arisen under like circumstances.
Officer Minzak's experience is not a significant factor here.[24] Although the officer was knowledgeable of the particular area of the city, that particular area was known for prostitution, an offense unrelated to appellees' conduct and the officer's suspicions. Indeed, the officer's testimony was tantamount to a concession that nothing in his prior experience provided a reason for him to conclude that appellees had a gun in their car. He admitted that he had never known such a gesture to lead to a gun. He denied that as a result of his training he was relying on a profile for certain kinds of individuals. His reliance on the character of the streets and what has been happening recently is not the same as the particularized, individualized suspicion that is required under Terry, supra, 392 U.S. at 21, 22, 88 S.Ct. at 1879, 1880. Cf. Matter of A.S., 614 A.2d 534, 537-38 (D.C.1992); Galberth v. United States, 590 A.2d 990, 997-98 (D.C.1991) (general law enforcement concerns do not provide sufficient grounds for the police to stop a car) (citing Delaware v. Prouse, supra, 440 U.S. at 659 n. 18, 99 S.Ct. at 1399 n. 18). Nor were there objective circumstances, based on information about appellees' other activity, that would permit the officer to stop the car because a gun was likely to be involved.[25] Other cases cited by the parties concern searches of passengers in lawfully stopped cars, and are not helpful here.[26] The factors present here are individually and collectively less *523 probative than those in cases where there was reasonable articulable suspicion.[27]
The government's contention that the police could stop appellees' car to investigate because "the threatening and intimidating conduct of appellee Murray came very close to being a crime in itself" fails on this record and thus cannot explain how the officers had reasonable articulable suspicion. Officer Minzak testified that he stopped appellees' car because he thought they might have a gun, and not because he thought that appellee Murray's gesture was itself a crime. In fact, the officer distinguished as "entirely different" appellee Murray's gesture from an obscene gesture, which, the officer claimed, in and of itself would have violated a statute. In addition, the trial judge found that there was no evidence that appellees knew that officers Minzak and Caine were police officers, and therefore no probable cause to suspect them of assaulting a police officer under a theory of intimidation.[28]
The government concedes that it did not argue in the trial court and now "do[es] not press it as a reason to reverse" that appellee Murray's gesture and the mouthed word "Pow" may have violated D.C.Code § 22-507 (1989 Repl.), which forbids threats to do bodily harm. The government admits that appellee Murray's gesture "fell just shy of" threat-type assault prohibited by D.C.Code § 22-504 (1989 Repl.). The government suggests that Murray's gesture and mouthed word "arguably" violated the disorderly conduct statute, D.C.Code § 22-1121 (1989 Repl.). But the trial judge's findings regarding the nature of the gesture make clear that the judge did not find facts which would bring the gesture within the threats, assault, or disorderly conduct statutes. While the judge concluded that appellee Murray's gesture was foolish thing to do, the judge suggested that police officers were trained to take such insults without reacting so as to cause a disturbance. See notes 9 & 11, supra. In its reply brief the government argues that "[p]lenty of ordinary citizens would feel very threatened by appellee Murray's gesture and the mouthed word `Pow' in that location at that time of night." (citing United States v. Baish, 460 A.2d 38, 42 (D.C.1983) (threat evaluated in terms of how it would affect ordinary recipient)). The fact that Officer Minzak may have interpreted the gesture, in the government's words, "as genuinely threatening and suggestive of the possibility of a gun's presence in appellees' vehicle," does not withstand the objective scrutiny that the Fourth Amendment requires, Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1879-80, and the trial judge applied in evaluating the officer's credibility. See (Marvin) *524 Brown, supra, 590 A.2d at 1020 (citation omitted); Matter of B.E.W., 537 A.2d 206, 207 (D.C.1988) (citation omitted).
The trial judge's findings regarding the nature of the gesture make clear that appellee Murray's gesture was insufficient to objectively cause a reasonable person to believe that appellees had a gun in the car.[29] The gesture was not so linked to gun possession as to lead to that inference.[30] It was not a "furtive gesture" of hiding or holding a weapon. Nor did the officers see any physical sign of a concealed weapon, such a bulge in one of the appellees' clothing. The other factors, such as time of night, the area, and the officers' experience, are insufficient to bolster the observation of appellee Murray's gesture to provide reasonable articulable suspicion that he had a gun. The government's argument that Officer Minzak "testified that his judgment was that Murray would not have made [the gesture] without having immediate access to a real gun" is a judgment that was simply unsupported by the objective evidence or reasonable inferences based on facts known by the officer.
Accordingly, we affirm the order granting the motions to suppress.
NOTES
[1] See D.C.Code § 23-104(a)(1) (1989 Repl.).
[2] The occupants were the appellees: Murray was driving, Anderson was the front seat passenger, and Bellamy and Wallace were in the back seat.
[3] Officer Minzak testified that he had been trained to always examine the cars around him, searching for "threats," and that he habitually did this whether in uniform or plain clothes.
[4] Officer Minzak later said that "sneer" was a better description than "snicker" because he observed a facial gesture but did not hear any sound.
[5] The officer explained that he was referring to random drive-by shootings in the city and to "[t]raffic altercations that resulted in violence with the use of a handgun or firearm."
[6] The officer stated that he had previously stopped a car whose occupant "flipped the bird" at him, for violating a statute which prohibits obscene gestures, but conceded that that situation was "entirely different" from the instant case. In the "bird" case, moreover, the officer had only given the gesturer a stern verbal warning.
[7] Appellee Anderson's written motion to suppress argued that the police had stopped the car "because its occupants fit an unconstitutional profile, namely four African-American youths traveling in ... a predominantly white area, at night." The prosecutor argued that because the officer had denied he was trained to follow a profile, there was no evidence of racial bias in the case. The prosecutor maintained that an interaction involving "four African American young men in a car, one of whom makes a sign of a gun and says `pow' to a white man in a car alongside is wholly without the bounds of consideration of race." Rather, the prosecutor argued, it was "the threatening furtive gesture ... along with the temperament of the city.... that would raise apprehension even as a reasonable person."
[8] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[9] During discussion with counsel, the trial judge observed that appellees were fortunate that Murphy's gesture had been made to two people who turned out to be police officers:
to make a gesture in a high crime neighborhood in a major urban center in the country today could have resulted in another result. And instead of the enjoyment of Fourth Amendment litigation, each of these four gentlemen might be dead. And that I'm prepared to rule.
But on the question of law, there's a body of law that says a police officer has to have a considerably thicker skin than others because police officers are subjected to all manner of rude treatment.
[10] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[11] The government's argument continues to the effect that the gesture "was surely a threatening and intimidating gesture to an ordinary person," and that the officer's perception of the gesture was
completely reasonable, since an ordinary person would instantly fear that the man gesturing in that way might well have a real gun within reach. One would surely wonder and suspect that that would be the case. That suspicion is what gave the police grounds to further investigate to determine if Murray actually had a gun and whether he was about to use it against the officers or others.
Moreover, the government argues, the trial judge "appreciated the menacing and provocative nature of such a gesture" in his finding that it might have constituted an assault on a police officer had the officers been in uniform, and in his observation that "under the circumstances," but for the fact that Minzak and Caine were trained police officers, the gesture could have resulted in an exchange of gunfire "as all too frequently occurs in the District of Columbia."
[12] Because of our holding, we do not reach the issue of whether the amount of force used by the police would have transformed a Terry stop into an arrest.
[13] See also Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) ("Reasonableness, of course, depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers'") (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975)); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) ("The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... Terry recognizes that it may be the essence of good police work to adopt an intermediate response," and thus, the officer could remove gun from the defendant's pants based on an informant's tip that the suspect was armed) (citation omitted).
[14] While Officer Minzak's conduct in staring at appellees might give them a motive to insult or even assault him, the context in which appellee Murray's gesture occurred, unlike the cases relied on by the government, see note 15, infra, did not provide the missing objective basis for an inference that appellees had a gun.
[15] See United States v. Walker, 835 F.2d 983, 985, 987-88 (2d Cir.1987) (defendant's handgun-mimicking gesture and many other verbally and physically intimidating and abusive behaviors, viewed in the light most favorable to the government, provided sufficient evidence to allow a jury to convict defendant of intimidating his probation officer); United States v. (Maurice) Smith, 973 F.2d 1374, 1375, 1377-78 (8th Cir. 1992) (express death threat where, in response to question whether his hold-up was a joke, defendant put his hand under his coat, making it appear that he was holding a gun, and stated "you don't want to find out;" also, threats inherent in demand for money); United States v. Balzano, 916 F.2d 1273, 1291-92 (7th Cir.1990) (intimidation of witness about to give damaging testimony where defendant's "hand gestures mimick[ed] the slashing of a throat and the threat of a gun"); United States v. Rocha, 916 F.2d 219, 229-31 (5th Cir.1990) (characterizing as a "death threat" the defendant's moving a finger across his throat and mouthing the words "you are dead" to a witness while in a court-room; issue considered only in connection with motions to sever on grounds of prejudice), cert. denied, ___ U.S. ___, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); cf. United States v. Mickens, 926 F.2d 1323, 1328-29 (2nd Cir.1991) (defendant made a handgun gesture in court; issue was whether a witness could testify to having observed this behavior, which showed attempt to threaten witness and therefore consciousness of guilt), cert. denied, ___ U.S. ___, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992); United States Sentencing Guidelines, § 2B3.1(b)(2)(d) comment 8 (1990) (death threat can be in form of gesture).
[16] See In re D.E.W., 612 A.2d 194, 196 (D.C. 1992) (defendant's attempt to shove something into front of his pants was "not simply a `gesture,'" but occurred as police "were about to conduct an investigation" of a stopped car); Byrd v. United States, 579 A.2d 725, 729 (D.C. 1990) (bulge in jacket led officer to believe passenger was armed); United States v. Bennett, 514 A.2d 414, 416 (D.C.1986); Jeffreys v. United States, 312 A.2d 308, 309-10 (D.C.1973); cf. Mimms, supra note 13, 434 U.S. at 111-12, 98 S.Ct. at 334 (bulge in driver's jacket "permitted the officer to conclude that [driver] was armed and thus posed a serious and present danger to the safety of the officer," officer could search defendant already lawfully stopped); Terry, supra note 10, 392 U.S. at 27, 88 S.Ct. at 1883 (defendants' conduct consistent with persons contemplating daylight robbery, and hence, prudent person warranted in thinking petitioner was armed). Compare Jones v. United States, 391 A.2d 1188, 1189, 1191 (D.C.1978) (held unlawful stop where police only saw two men sitting in a car late at night in a high-crime area and one man moved as if to hide something as the police approached); Tyler v. United States, 302 A.2d 748, 749 (D.C.1973) (defendant's furtive gestures insufficient to show that criminal activity was afoot, or to allow search of car of already-stopped suspect, although combined with a late hour (3:30 a.m.) and facts that defendant was passenger in a parked car in an alley, he became nervous when speaking with an officer, and car may have been in violation of parking regulations).
[17] See (John) Smith v. United States, 558 A.2d 312, 316-17 (D.C.1989) (en banc) (citations omitted); In re D.J., 532 A.2d 138, 142 (D.C. 1987).
[18] This also is not a case in which the officers had reasonable articulable suspicion that appellees were going to commit a crime in the future. See Terry, supra, 392 U.S. at 6, 22-23, 88 S.Ct. at 1872, 1880-81 (officer saw defendants repeatedly look in store window, thought they were planning hold-up); cf. United States v. Abokhai, 829 F.2d 666, 670 (8th Cir.1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1082, 99 L.Ed.2d 241 (1988); United States v. Martinez, 808 F.2d 1050, 1054 (5th Cir.1987), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987).
[19] The government cites Florida cases as holding that officers could stop suspects engaged in suspicious conduct even if the police were not sure exactly which crime the offenders were committing, but these cases do not directly support that proposition. See Hooper v. Florida, 440 So.2d 525, 526-27 (Fla.App.1983) ("the possibility of attempted burglary or trespass was mentioned as the subject of the founded suspicion," and officer was acting on a citizen's report of activity, not just officer's own "hunch"); Horton v. Florida, 375 So.2d 1112, 1113 (Fla. App.1979) (officer suspected that beer delivery truck traveling at midnight had been stolen or was transporting marijuana), cert. denied, 386 So.2d 638 (1980).
[20] See Dubart v. United States, 589 A.2d 895, 899 (D.C.1991) (Terry stop cannot be justified if defendant's behavior has "too many innocent explanations") (quoting United States v. Barnes, 496 A.2d 1040, 1043 (D.C.1985)); cf. In re D.J., supra note 17, 532 A.2d at 142 (defendant's evasive action did not provide reasonable suspicion for a Terry stop because "it may be inspired by any number of innocent reasons. Such ambiguous conduct may not serve, of itself, as a basis for seizure") (citations and footnote omitted). But see In re D.E.W., supra note 16, 612 A.2d at 197 (where passenger in lawfully-stopped car attempted to shove something down his pants, "[t]he issue is whether the officer had an articulable suspicion, not whether [defendant's] actions could be construed as innocent behavior") (citation omitted).
[21] The time of day: (William) Brown v. United States, 546 A.2d 390, 393 (D.C.1988) (late hour); Curtis v. United States, 349 A.2d 469, 471-72 (D.C.1975) (night hour, about 7:30 p.m., not determinative, not unusual for people to be walking around at that time); United States v. Laing, 281 U.S.App.D.C. 266, 271, 889 F.2d 281, 286 (1989), cert. denied, 494 U.S. 1008, 110 S.Ct. 1306, 108 L.Ed.2d 482 (1990) (late hour).
The area: Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (high drug crime area not determinative); Dubart, supra note 20, 589 A.2d at 900 (high crime nature of area not determinative); Matter of T.T.C., 583 A.2d 986, 990 (D.C.1990) (high crime area) (citations omitted); In re D.J., supra note 17, 532 A.2d at 143 (high drug crime area considered, but not enough alone for reasonable suspicion) (citation omitted); Curtis, supra, 349 A.2d at 472 (high crime area, night hour, "[t]his familiar talismanic litany, without a great deal more, cannot support an inference that appellant was engaged in criminal conduct") (citations omitted).
The officer's experience: Brown v. Texas, supra, 443 U.S. at 52 n. 2, 99 S.Ct. at 2641 n. 2 (citations omitted); Dockery, supra, 385 A.2d at 770 (officers were experienced and familiar with the area, area known for "automobile larcenies"); Jeffreys, supra note 16, 312 A.2d at 311 ("officer's knowledge" about the location) (citation omitted).
The totality of circumstances: United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989) (several facts were very unusual but "[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent [activity]. But we think taken together they amount to reasonable suspicion") (citations omitted); Terry, supra note 10, 392 U.S. at 22, 29-30, 88 S.Ct. at 1880, 1884; Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (citations omitted); Dubart, supra note 20, 589 A.2d at 897.
[22] See Jones v. United States, 391 A.2d 1188, 1191 (D.C.1978) (fact that officer encountered two men sitting in car at approximately one a.m. in a high crime area did not justify Terry stop); cf. Tyler, supra note 16, 302 A.2d at 750 (warrantless search of lawfully-stopped defendant's car, 3:30 a.m. hour and other factors not enough to justify search or show that criminal activity was afoot).
[23] Compare United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987) ("combat zone," known for prostitution and violent crime and drugs, still not sufficient alone to justify Terry stop), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987).
[24] See Dubart, supra note 20, 589 A.2d at 899 (noting that "there are limits to the inference that an experienced reasonable police officer can rationally draw") (citing (John) Smith, supra note 17, 558 A.2d at 315; Sibron v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968)).
[25] See United States v. Clipper, 297 U.S.App.D.C. 372, 973 F.2d 944, 951 (1992) (where police have anonymous tip, suspected gun crimes may be treated differently from suspected drug offenses because the former are more likely to involve immediate danger to others); see also United States v. (Morris) Johnson, 540 A.2d 1090, 1091-92 (D.C.1988) (informer's tip); cf. Tyler, supra, 302 A.2d at 750 (search of stopped defendant, distinguishing situation where police have been told that suspect has gun); United States v. Mason, 450 A.2d 464, 465, 466 (D.C.1982) (officer's right to stop suspect not disputed, tip that suspect's bag contained gun, officer could search bag). But see Peay, supra note 21, 597 A.2d at 1321 ("as has often been observed, drugs and weapons go together") (citing, inter alia, Irick v. United States, 565 A.2d 26, 31 (D.C. 1989)); cf. Matter of T.T.C., supra, 583 A.2d at 988 & n. 2. United States v. (Orson) White, 208 U.S.App.D.C. 289, 295-96 & n. 29, n. 30, 648 F.2d 29, 35-36 & n. 29, n. 33 (1981) (drawn guns did not transform stop into arrest, officer concerned that defendant, like many other drug offenders the officer had arrested, was armed, citing statistics), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 235 (1981).
[26] See United States v. Mitchell, 293 U.S.App. D.C. 24, 28-29, 951 F.2d 1291, 1295-96 (1991) (after car stopped for traffic violations, actions of passenger led officer to believe passenger was hiding a weapon), cert. denied, ___ U.S. ___, 112 S.Ct. 1976, 118 L.Ed.2d 576 (1992); Byrd v. United States, 579 A.2d 725, 729 & n. 9 (D.C. 1990) (same, officers saw bulge in passenger's pocket).
[27] See (William) Brown v. United States, 546 A.2d 390, 391-393 (D.C.1988) (stop of defendant in an area known for street robberies, at 1:00 a.m., where defendant and two companions walked hurriedly from a dimly-lit street, dressed in casual clothing which would not have been allowed at the only public establishment on the block, entered a car, and exceeded the speed limit, and one person crouched in the back seat periodically peering backwards at the police); Stephenson v. United States, 296 A.2d 606, 610 (D.C.1972) (police saw men running at 4:30 a.m. in commercial area where rooftop burglaries had occurred); Laing, supra note 21, 281 U.S.App.D.C. at 268, 271, 889 F.2d at 283, 286 (police had tip that a specific apartment's occupants were armed, officers saw defendant flee when he saw police and attempt to enter that apartment, shoving his right hand into the front of his pants, at 12:30 a.m. in a high-crime area); see also Little v. United States, 393 A.2d 94, 95-96 (D.C.1978) (dictum) (where defendant and two others in his car were observed driving slowly, watching people on the sidewalks, occasionally stopping to "watch[ ] other people park cars, get out, and go into houses," "[h]ad [police officers] stopped the car to make inquiry of the occupants and to ascertain their identifications, they would have been justified;" car had, in fact, stopped when police approached). Compare (John) Smith, supra note 17, 558 A.2d at 313-14 (insufficient basis for a Terry stop where officers saw defendant speaking with two suspected drug dealers in a high drug-trafficking area, officers knew that dealers often have a third partner to hold the money, and defendant walked away as a police car arrived).
[28] Cf. (John) Smith, supra note 17, 558 A.2d at 317 (officer could not reasonably have assumed that defendant knew he was a policeman, since officer was in plain clothes and unmarked car). But see Bennett, supra note 16, 514 A.2d at 416 & n. 3 (officer could reasonably believe that suspect feared or thought undercover officers were police officers because their actions were consistent with those of police officers).
[29] Of course, had there been an objective basis for the officers to think that appellees had a gun, the fact that appellees' car drove away once the traffic light changed to green would not have negated the officers' articulable suspicion. See Peay, supra note 21, 597 A.2d at 1322 (rejecting argument that a defendant's walking away after initial contact with officer indicated that the defendant would not attack officer with any weapon that might have been concealed in his closed hand) (citation omitted); Jeffreys, supra note 16, 312 A.2d at 310 (officers' right to stop defendants "did not evaporate merely because they deferred such action until the [defendants'] car started to go") (citations omitted).
[30] Cf. In re D.J., supra note 17, 532 A.2d at 142-43 (suspect's putting his hands in his pockets when he saw officers was "a universal action which could hardly be called suspicious"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265406/ | 491 A.2d 328 (1985)
JONI AUTO RENTALS, INC.
v.
WEIR AUTO SALES, INC.
No. 82-508-Appeal
Supreme Court of Rhode Island.
April 16, 1985.
Dennis H. Esposito (Vrana Cunha & Esposito), Providence, For Plaintiff.
Joseph A. Keough, (Keough Parker Gearon & Viner), Pawtucket, For Defendant.
OPINION
WEISBERGER, Justice.
This is a contract action in which the trial justice awarded damages for breach of contract to Joni Auto Rentals, Inc. (Joni). Weir Auto Sales, Inc. (Weir), appeals from the judgment entered in Superior Court. We affirm. The pertinent facts as found by the trial justice are as follows.
Joni was engaged in the business of leasing cars for hire. Weir was primarily engaged in the business of selling new cars for which it had a dealership.
Joni and Weir entered into contracts on February 18, 1977, March 30, 1977, and October 1, 1977, which gave rise to certain obligations on the part of both. Under the February contract, Joni agreed to purchase from Weir one hundred fifty new automobiles to be delivered in accordance with a schedule contained in the contract: sixty vehicles in March, fifty vehicles in April, and forty vehicles in May 1977. Weir in turn promised that it would (1) repurchase all one hundred fifty of the vehicles sold to Joni at the end of a minimum period of six months in service as provided by the contract under a specific formula agreed to by the parties in respect to value; and (2) purchase eighty 1976 Dodge Dart automobiles *329 from Joni. These last vehicles at the time of the contract constituted a part of Joni's fleet of cars used in its rental business. The contract further provided that as the new vehicles were delivered, the 1976 model Dodge Darts would be taken out of service and sold to Weir at a specified price, less normal wear and tear plus a damage factor.
The contract of March 30, 1977, was similar in its terms and provided for the purchase by Joni and the repurchase by Weir of forty 1977 Plymouth Fury automobiles. Weir promised to repurchase these automobiles after a minimum of six months' in-service use by Joni. It was further agreed in the March 30 contract that the forty Fury vehicles to be purchased would replace forty-two 1976 model Chevrolets and that Weir would purchase those vehicles as replaced by the new Plymouths at an agreed price, normal wear and tear and damages to be deducted.
The third and final contract, which was dated October 1, 1977, provided for the purchase by Joni of sixty new 1978 model Plymouth Volare automobiles. In this contract Weir did not agree to purchase outright upon the delivery of the 1978 Plymouth Volare automobiles any vehicles that were part of Joni's rental fleet. Weir did, however, obligate itself to repurchase after a minimum of six months' in-service use by Joni the sixty 1978 Plymouth Volares.
The trial justice further found that the arrangements provided by these contracts were designed to retire from service after a minimum period of six months the rental vehicles Joni used in its business. The longer the period of service during which the rental vehicle was used, the lower the value of the automobile to be repurchased under the formula and the depreciation allowance contained in the contract. The trial justice found that in each of the contracts, time was made to be of the essence.
The trial justice found that the relationship between the parties was generally good up until the deliveries of new cars made by Weir pursuant to the terms of the contract dated October 1, 1977. Fifty-nine out of the sixty Plymouth Volares were delivered by the third week in October 1977. One automobile was diverted to a third person by agreement of the parties. Following this last delivery, the trial justice found, the business relationship between the parties deteriorated. No vehicle was purchased or repurchased by Weir subsequent to the third week in April 1978. The trial justice found that a representative of Weir with its full authority and approval notified Joni early in April 1978 that it had no further need for 1976 Dodge Darts and Chevrolets. He further found that the same representative acting with Weir's full knowledge and authority refused to make repurchases of vehicles furnished to Joni under the contracts of February 18 and March 30, 1977. The trial justice found that these refusals constituted a breach of these two contracts and further provided an appropriate reason for a communication by Joni to Weir on or about May 1, 1978, that Joni would offer no further vehicles to Weir and would place such vehicles on the market in order to mitigate damages since the conduct of Weir's representative constituted an anticipatory breach of the contract of October 1, 1977, in respect to its repurchase provisions.
Thereafter the trial justice found that Joni proceeded to sell its Dodge Darts and Chevrolets in order to mitigate damages and, as the relevant six-month periods ended, sold its other vehicles at the best price obtainable from third parties. We shall not go into the details of the trial justice's meticulous computations, save to state that he determined as a result of the breach of contract, that Joni received $46,007.75 less than it would have received had Weir observed the provisions of its contract. This sum included consequential damages and interest arising out of tardy payments made by Weir on automobiles that it did purchase. To this amount the trial justice added interest in accordance with G.L. 1956 (1969 Reenactment) § 9-21-10, as amended by P.L. 1981, ch. 54, § 1.
In support of its appeal, Weir raises five issues. These issues may be grouped under *330 two general headings that will be dealt with in the order of their significance to this opinion.
I
WAS THE CONTRACT UNENFORCEABLE BY REASON OF ITS BEING ILLUSORY IN THAT THERE WAS NO CORRESPONDING OBLIGATION UPON JONI?
Generally Weir argues that there was no obligation on its part to purchase vehicles mentioned in the contract and that [** 6] if such an obligation is set forth, it is unenforceable by reason of the fact that Joni had no obligation to offer such vehicles for purchase. This argument overlooks the plain language of the contracts that clearly provide for the repurchase provisions. In respect to the contention that there is no corresponding obligation on Joni's part, Weir overlooks an important element of all three contracts. Weir's obligation is only triggered by the promise on Joni's part to purchase from Weir under an agreed formula approximately 250 new automobiles pursuant to the terms of the three contracts (February 18, 1977, March 30, 1977, and October 1, 1977). It is undisputed that Joni did make said purchase with the exception of some vehicles that were diverted by agreement of the parties. Consequently, the contention that the contracts in this case were illusory and gave unlimited freedom of choice to Joni is untenable. The interpretation of the three contracts by the trial justice was virtually compelled by the plain and unambiguous language of said contracts. See Judd Realty, Inc. v. Tedesco, R.I , 400 A.2d 952 (1979).
II
WAS THE TRIAL JUSTICE CLEARLY WRONG IN FINDING AS A FACT [**7] THAT WEIR HAD BREACHED THE THREE CONTRACTS AND THAT TIME WAS OF THE ESSENCE IN PERFORMANCE?
We have often stated that findings of fact made by a trial justice sitting without a jury are entitled to great weight and will not be set aside on review unless the trial justice has overlooked or misconceived relevant evidence on a material issue or is otherwise clearly wrong. Proffitt v. Ricci, R.I., 463 A.2d 514 (1983); Berube v. Montgomery, R.I., 463 A.2d 158 (1983); Altieri v. Dolan, R.I., 423 A.2d 482 (1980). An examination of the contract provisions as well as the evidence in the case leads us to the conclusion that the trial justice in his carefully prepared rescript applied the facts in the case with precision to arrive at a correct interpretation of the legal obligations of the parties. We find no fault with the factual determinations made by the trial justice. Weir has totally failed to demonstrate that the trial justice overlooked or misconceived relevant evidence or that he was otherwise clearly wrong. Therefore, we see no basis for disturbing either his findings about the breach of contract, including the anticipatory breach of the October 1, 1977, contract, or [**8] his computation of damages.
For the reasons stated, Weir's appeal is denied and dismissed, and the judgment of the Superior Court is affirmed. The papers in the case may be remanded to the Superior Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265410/ | 491 A.2d 511 (1985)
David I. GARRIS, a/k/a Ronnie Garris, Appellant,
v.
UNITED STATES, Appellee.
No. 83-1549.
District of Columbia Court of Appeals.
Argued December 7, 1984.
Decided April 24, 1985.
As Amended June 13, 1985.
*512 Franklin D. Kramer, Washington, D.C., with whom R. James Woolsey, Washington, D.C., was on brief, for appellant.
Daniel S. Seikaly, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, *513 U.S. Atty., Michael W. Farrell, Judith Hetherton, and Steven D. Gordon, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before PRYOR, Chief Judge, and NEBEKER and BELSON, Associate Judges.
NEBEKER, Associate Judge:
This appeal after remand for resentencing presents issues respecting double jeopardy arising from multiple convictions, merger, and consecutive sentencing. We affirm in all but one respect and there we remand to vacate the unauthorized use of a vehicle count. Appellant was convicted of first-degree premeditated murder, D.C. Code § 22-2401 (1981); felony murder committed during the course of a robbery, id.; robbery, id. § 22-2901; felony murder committed during the course of a grand larceny, id. § 22-2401; unauthorized use of a vehicle, id. § 22-2204; and two counts of grand larceny, id. § 22-2201.[1] These convictions were affirmed in Garris v. United States, 465 A.2d 817 (D.C.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1013, 79 L.Ed.2d 243 (1984). However, this court remanded the case for resentencing after finding the trial court's imposition of concurrent sentences for felony murder (robbery), felony murder (grand larceny), and the underlying felonies of robbery and grand larceny to be improper.
The original and second set of sentences are set out in the following chart:
Charge Sentencing #1 Sentencing #2
first-degree pre-
meditated murder 20 years to life 20 years to life
felony murder 20 years to life
(robbery) concurrent conviction vacated
felony murder 20 years to life
(grand larceny) concurrent conviction vacated
grand larceny 3 to 9 years
concurrent conviction vacated[2]
unauthorized use 15 to 45 months 15 to 45 months
of a vehicle concurrent concurrent
robbery 5 to 15 years 5 to 15 years
consecutive consecutive
grand larceny 2 to 6 years 2 to 6 years
consecutive consecutive
Appellant now argues that the court erred in imposing sentence for both unauthorized use of a vehicle and grand larceny of the same vehicle. The government concedes that under this court's decision in Arnold v. United States, 467 A.2d 136 (D.C.1983), appellant's convictions for both of these charges violate the Double Jeopardy Clause. Because the unauthorized use of a vehicle conviction merges into the grand larceny conviction, Jones v. United States, 479 A.2d 332 (D.C.1984), the unauthorized use of a vehicle conviction must be vacated.
Appellant further argues that, on remand, the trial court improperly vacated the felony murder (robbery) conviction in order to sentence him consecutively for the robbery. He advances the following reasoning in support of his position: under Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), appellant's initial sentences for both felony murder (robbery) and robbery violated the Double Jeopardy Clause. Thus, when Judge Ugast resentenced appellant, he had to vacate one of the convictions. However, because D.C.Code § 22-2404 (1981) establishes a mandatory sentence of twenty years to life for all first-degree murder convictions, the trial court was required to sentence Garris for both the premeditated and felony murder counts. Further, Doepel v. United States, 434 A.2d 449 (D.C.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981), would prohibit, on double *514 jeopardy grounds, consecutive sentencing on these counts. Id. at 459. Appellant argues, in effect, that this court should preempt the sentencing function and limit appellant's punishment to twenty years to life, regardless of the additional crimes committed during the course of the murder. Surely Congress never intended that such an anomalous result should flow from the application of D.C.Code § 22-2404 (1981).
The trial court's sentence was fully consistent with Congress' intent that a mandatory minimum sentence be imposed for first-degree murder convictions. We note at the outset that appellant was sentenced to life imprisonment for the first-degree premeditated murder, satisfying the mandate of D.C.Code § 22-2404 (1981). Subsection (a) provides that "[t]he punishment of murder in the first degree shall be life imprisonment." Subsection (b) goes on to state that "a person convicted of first-degree murder and upon whom a sentence of life imprisonment is imposed shall be eligible for parole [after 20 years]." The import of these two provisions is that a trial judge has no discretion when passing sentence on a first-degree murder conviction. No language in the statute even intimates that the trial court is restrained from vacating such a conviction in order to correct a double jeopardy or other constitutional violation. Appellant's reading of D.C.Code § 22-2404 (1981) runs counter to the well-established statutory preference in this jurisdiction that consecutive sentences be imposed when an individual is convicted of two or more offenses, even if the convictions arise out of the same act or transaction. D.C.Code § 23-112 (1981); Jones v. United States, 401 A.2d 473, 475 (D.C. 1979).
Appellant's argument contravenes not only Congressional intent but also controlling case authority in this jurisdiction. In Harling v. United States, 460 A.2d 571 (D.C.1983), defendant was convicted of first-degree premeditated murder, felony murder, three underlying felonies (burglary and two counts of armed robbery), and four assaults. The armed robbery sentences were to run concurrently to one another but consecutively to the murder sentences, and the burglary sentence was to run consecutively to all of these. In remanding the case, this court directed the trial court to vacate either the conviction for felony murder or the convictions for the underlying felonies. At the same time, we emphasized that
If the trial court on remand should vacate the felony murder conviction (as opposed to vacating the conviction for the underlying felonies), our ruling will not affect the trial court's earlier order that appellant's sentence for premeditated murder be consecutive to the sentences for armed robbery, armed burglary and the several assaults with a dangerous weapon.
Id. at 574.
Both in Harling and the instant case, this court's instructions for remand allowed the trial court to effectuate its original sentencing plan without violating the Double Jeopardy Clause. We have consistently approved this practice of permitting trial judges to implement their original sentencing schemes. See, e.g., Thorne v. United States, 471 A.2d 247, 249 (D.C.1983).
Appellant offers a final argument in support of his position that the robbery conviction should have been vacated. He correctly contends that the felony murder and robbery convictions merged but then concludes that there was no robbery conviction on which he could be sentenced, as a result. We disagree. Merger is a legal fiction. It is not a finite occurrence at a point in time. In this case, for example, appellant did both rob and murder the victim, factually two separate and distinct acts. The jury returned guilty verdicts for both offenses, and we see no reason for a rule which would require the trial judge to then enter an acquittal on the robbery charge. Initially permitting convictions on both counts serves the useful purpose of allowing this court to determine whether *515 there is error concerning one of the counts that does not affect the other. Cf. Fuller v. United States, 132 U.S.App.D.C. 264, 289, 407 F.2d 1199, 1224 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). If so, then no merger problem even arises as only one conviction stands. If not, a remand to the trial court with instructions to vacate one conviction cures the double jeopardy problem without risk to society that an error free count was dismissed.
We note in Ball v. United States, ___ U.S. ___, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the Court states that where a multi-count indictment for receipt and possession of a firearm results in convictions for both, "the District Judge should enter judgment on only one of the statutory offenses." At 1673-1674. But there the Court of Appeals and the Supreme Court were dealing with a single issueviz whether a defendant could be convicted of and concurrently sentenced for both offenses. We do not read that decision as requiring an election before appeal by the trial court on which conviction to base its judgment when the appeal is likely to raise asserted error independent of one count. The policy sought to be vindicated by Ball and its predicate decisions is better served, in cases of appeal on issues other than validity of the sentence alone, by waiting for completion of the appeal process before vacating judgment on one of multiple counts. No legitimate interest of the defendant is served by requiring a trial court to guess which of multiple convictions will survive on appeal. Indeed, if the count chosen is reversed on grounds independent of the validity of the one vacated, a substitution would have to be made (cf. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)) and a new appeal thereunder must be permitted if error independent of the reversed conviction is to be raised.
Accordingly, we affirm but remand the case for vacation of the unauthorized use of a vehicle conviction.
So ordered.
NOTES
[1] The portions of the 1981 D.C.Code covering grand larceny and unauthorized use of a vehicle have been repealed and recodified in D.C.Code §§ 22-3812 and -3815 (Supp.1984), respectively.
[2] Appellant contended that since the same property was the subject of both the robbery and the grand larceny which underlay the felony murder counts, both felony murder counts and the larceny count had to be vacated if the court were to impose sentence on the robbery. The government did not appeal vacation of the grand larceny count. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265412/ | 99 N.J. 78 (1985)
491 A.2d 625
IN THE MATTER OF EUGENE J. McDONALD, AN ATTORNEY AT LAW.
The Supreme Court of New Jersey.
April 30, 1985.
ORDER
The Disciplinary Review Board having filed a report recommending that EUGENE J. McDONALD of MATAWAN be publicly reprimanded for his violation of DR 7-102(A)(5), knowingly making a false statement of fact, and DR 1-102(A)(1), engaging in conduct involving misrepresentation and engaging *79 in conduct that adversely reflected on his fitness to practice law, and good cause appearing;
It is ORDERED that the report of the Disciplinary Review Board is hereby adopted and that EUGENE J. McDONALD be and hereby is publicly reprimanded for his violation of DR 7-102(A)(5) and DR 1-102(A)(1); and it is further
ORDERED that the Decision and Recommendation of the Disciplinary Review Board, together with this order and the full record of the matter, be added as a permanent part of the file of said EUGENE J. McDONALD as an attorney at law of the State of New Jersey; and it is further
ORDERED that EUGENE J. McDONALD reimburse the Ethics Financial Committee for appropriate administrative costs.
APPENDIX
Decision and Recommendation of the Disciplinary Review Board
This matter is before the Board based upon a panel report of the District IX (Monmouth County) Ethics Committee recommending a private reprimand. After initial review the Board determined to consider it as a presentment.
Respondent is charged with violating DR 1-102(A)(4), DR 7-102(A)(5) and DR 7-106 by concealing or knowingly failing to disclose to a municipal court that the criminal defendant he was prosecuting had made partial restitution on some checks which were returned for insufficient funds. The facts underlying this matter are as follows:
Respondent was asked by his uncle, Arnold Lauer, owner of Garber Plumbing Supply, to represent the company in its attempt to collect on five checks totalling $9,800. The checks were issued between September 23 and October 23, 1980 by John Burke, trading as J & S Heating Inc., and were returned for insufficient funds. Mr. Lauer had signed two complaints *80 against Mr. Burke on December 11, 1980, after discussing the transactions with Old Bridge police. One charged theft by deception, N.J.S.A. 2C:20-4; the other issuance of bad checks, N.J.S.A. 2C:21-5. The charges were forwarded to the county prosecutor for grand jury action on February 13, 1981. The theft by deception charges were later administratively dismissed and the bad check charges were remanded for municipal court disposition.
While the charges were pending, Respondent wrote a letter dated February 2, 1981, to Mr. Burke's attorney advising him that his client had passed bad checks, and also owed money on his regular account. That attorney replied by letter dated February 4, 1981, which stated;
Enclosed please find the checks in partial restitution in connection with the above matter.
I hope to send you several thousand dollars additional on February 15th thereafter.
I appreciate your attitude and cooperation in this matter !1T28-9 to 101.[*]
Respondent forwarded the checks to his uncle. On the same date, the attorney for Mr. Burke wrote the following letter to Mr. Lauer:
At your nephew's request, I sent him two cashier's checks totalling $3,500.00 payable to Garber's Supply Co. I enclosed a copy of that letter of transmittal. I will be in touch with you as soon as I have some more money on account. In the meantime, I would appreciate it if you would send me copies of the invoices reflecting the other monies owed to you by Mr. Burke's business.
After we get the check problem straightened out, I would like to make an agreement with you for Mr. Burke to repay the other monies owed on some steady basis.
I appreciate your attitude and cooperation in this matter !1T29-14 to 191.
In addition to the $9,800 which Mr. Burke owed because of the returned checks, he owed Garber Plumbing about $6,000 for earlier transactions.
The case was heard by the Old Bridge Municipal Court on May 13, 1982. Respondent was called to present the State's *81 case before the trial began when it was learned that the municipal prosecutor would not prosecute this case. Arnold Lauer Jr. testified that Mr. Burke had not paid Garber $2,000 against these checks. He could not recall if Mr. Burke had sent him a check for $3,500. During legal argument concerning a question asked Mr. Lauer, Respondent stated he had never received checks from Mr. Burke's former attorney for the book account. He referred to a February 12, 1981 letter from that attorney asking Respondent to send him copies of outstanding invoices for other than the bad checks. Respondent claimed that Mr. Burke's attorney led him to believe Mr. Burke would make payments on the outstanding account and not on the bad checks. Respondent initially denied receiving $3,500 from Mr. Burke's former attorney. He later conceded that he received this amount when an adjournment was requested to produce evidence of this payment.
Mr. Burke explained that he was handling his own book-keeping records at the time the checks bounced. He then went to Garber Plumbing and paid $2,000 in cash as restitution. He later, through his attorney, sent Garber $3,500. Neither Arnold Lauer, company owner, nor Arnold Lauer Jr., company vice-president, recalled these two payments. The municipal court judge found Mr. Burke guilty of all five and gave him a 30-day county jail sentence on each count, consecutive to each other. He also placed Mr. Burke on probation for two years and ordered restitution for $9,800, the total amount of the five checks. On appeal, the Superior Court reversed the convictions, finding that the State did not prove intent or that Mr. Burke knew there were no funds or insufficient funds in the account. The judge believed Respondent and Mr. Lauer were annoyed because Mr. Burke had gone into bankruptcy thus causing Garber a loss of money and that this prosecution was "a way of extracting some measure of vengeance." Concerning Respondent's conduct, the judge concluded:
that there was a deliberate attempt to obtain a conviction in the court below by if not outright misrepresentation of the facts, by an outright deception in not *82 telling the whole truth and nothing but the truth . .. but by devious skirting of the issues and the facts !3T22-19 to 3T23-11.[**]
By letter dated July 15, 1982 the attorney representing Mr. Burke at the municipal court hearing acted on the Superior Court judge's suggestion and notified the District Ethics Committee of what had transpired at the municipal court hearing. A formal complaint was filed against Respondent on March 18, 1983 charging that his conduct before the municipal court violated DR 1-102(A)(4), DR 7-102(A)(5) and DR 7-106. Respondent filed an answer on April 22, 1983, denying the allegations. The matter was heard by the District Ethics Committee on May 9 and June 27, 1983. During that hearing, Respondent testified that he had not intentionally made a misstatement of facts with the intent to obstruct justice. He maintained that when he represented in municipal court about not receiving the $3,500 he meant he had not received a lump sum payment. The payment was to have been applied against the outstanding book account and not the bad checks. The District Ethics Committee held that Respondent knew of the $3,500 payment and "did not accurately and straightforwardly represent this knowledge to the Municipal Court Judge." It further concluded that Respondent had not conducted himself in a proper manner at the municipal court hearing and recommended that he receive a private reprimand.
After considering the recommendation of the District Ethics Committee, the Board determined to bring the matter on before it for hearing.
CONCLUSION AND RECOMMENDATION
Upon a review of the full record, the Board is satisfied that the conclusions of the District Ethics Committee in finding unethical conduct on the part of Respondent are fully supported by clear and convincing evidence.
*83 The Board agrees with the Ethics Committee finding that Respondent knew of the $3,500 payment and had not candidly informed the municipal court of this. The two February 4, 1981 letters are uncontroverted proof that the money was sent. The Ethics Committee further found:
In mitigation, Mr. McDonald was representing a relative and admittedly may have acted in an overzealous manner and it is apparent from a reading of the transcript, as well as Mr. McDonald's testimony, that he was clearly frustrated by the lack of business sense of his client as well as the fact that his client lost a substantial amount of money due to the ultimate bankruptcy of complainant, John Burke. It is evident that Mr. McDonald found himself in a difficult position but this does not excuse Mr. McDonald's unprofessional conduct. [District Ethics Committee report at 41]
Whatever Respondent's motives were, they cannot be accepted to excuse his conduct before the municipal court. "The conduct and the motive of attorneys must be such as to merit the approval of all just men. They should strive at all times to uphold the honor and to maintain the dignity of the profession." In re Genser, 15 N.J. 600, 606 (1954).
An attorney's obligation to the court was succinctly stated in In re Turner, 83 N.J. 536, 537 (1980), where the court said:
A lawyer has an obligation of being candid and fair with the court. As an officer of the court, his duty can be no less. In People v. Beattie, 137 Ill. 553, 574, 27 N.E. 1096, 1104 (Sup.Ct. 1891), the Court commenting on this duty, wrote:
The lawyer's duty is of a double character. He owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court a minister in the temple of justice. His high vocation is to correctly inform the court upon the law and the facts of the case, and to aid it in doing justice and arriving at correct conclusions. [Id. at 539, 416 A.2d 894]
The Board finds that Respondent violated DR 7-102(A)(5) by knowingly making a false statement of fact to the municipal court judge. The Board further finds that he violated DR 1-102(A)(1), (4) and (6) by engaging in conduct involving misrepresentation and engaging in conduct that adversely reflected on his fitness to practice law.
*84 The primary purpose of discipline is not to punish the offender but to protect the public from the members of the bar who fail to meet their professional responsibilities. In re Goldstaub, 90 N.J. 1, 5 (1982); In re Stout, 75 N.J. 321, 325 (1978), "The severity of discipline to be imposed must comport with the seriousness of the ethical infractions in light of all the relevant circumstances." In re Nigohosian, 88 N.J. 308, 315 (1982).
In determining the appropriate discipline in this matter, the Board, as did the Committee, has considered Respondent's lack of years of experience before the courts. He was admitted to the bar in 1978. Respondent has no prior disciplinary record and there are no complaints pending against him. Nevertheless, his misrepresentation to the court was deliberate and greatly prejudiced the defendant. The bar must be cautioned that such behavior is wholly unacceptable in an attorney. Therefore, a requisite majority of the Board has concluded that public discipline is warranted and recommends that he be publicly reprimanded for his conduct.
The Board further recommends that Respondent be required to reimburse the Ethics Financial Committee for appropriate administrative costs.
NOTES
[*] 1T refers to the District Ethics Committee hearing of May 9, 1983.
[**] 3T refers to the transcript of the municipal court appeal on June 25, 1982. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265415/ | 341 Pa. Superior Ct. 420 (1985)
491 A.2d 888
Thomas BAILEY, Administrator of the Estate of Lincoln Bailey, Appellant,
v.
HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellee.
Supreme Court of Pennsylvania.
Argued October 17, 1984.
Filed April 12, 1985.
*423 Daniel J. Barrett, Towanda, for appellant.
James A. Pruyne, Towanda, for appellee.
Before WIEAND, DEL SOLE and POPOVICH, JJ.
WIEAND, Judge:
Thomas Bailey, Administrator of the Estate of Lincoln Bailey, deceased, commenced an action on behalf of his decedent, who had been killed in an automobile accident, to recover work loss benefits from Harleysville Mutual Insurance Company pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.101 et seq. The action was terminated during trial when a judgment in the amount of $1,000.00 was entered by agreement in favor of Bailey and against Harleysville. The judgment was paid and marked "Satisfied." Thereafter, Bailey filed a second action against Harleysville to recover an additional $14,000.00 in work loss benefits. Bailey moved for judgment on the pleadings, which consisted of a complaint, an answer containing new matter, and a reply. *424 The trial court denied Bailey's motion and, instead, entered summary judgment in favor of Harleysville. The trial court did so because it concluded that a second action between the same parties was barred by principles of res judicata. Bailey appealed. We affirm.
A trial court may properly enter judgment against the party filing a motion for judgment on the pleadings if a review of the pleadings clearly supports the judgment. Boron v. Smith, 380 Pa. 98, 102, 110 A.2d 169, 171 (1955); Volkert v. Swan, 197 Pa.Super. 576, 582-583, 179 A.2d 274, 277 (1962); Knecht v. Medical Service Association of Pennsylvania, 186 Pa.Super. 456, 459, 143 A.2d 820, 822 (1958); Pa.R.C.P. 1034(b). However, a judgment on the pleadings may be entered only in cases which are clear and free from doubt." Engel v. Parkway Co., 439 Pa. 559, 561, 266 A.2d 685, 686 (1970).
"[A] final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties . . . on the same cause of action." Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76. Accord: Schultz v. City of Philadelphia, 314 Pa.Super. 194, 199, 460 A.2d 833, 835 (1983). A future suit is barred because the cause of action has been merged into the judgment. Lance v. Mann, 360 Pa. 26, 28, 60 A.2d 35, 36 (1948). The public policy underlying the doctrine of res judicata is "to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and protect the party relying on the prior adjudication from vexatious litigation." Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 482 (1978). The doctrine is to receive a liberal interpretation and should be applied without technical restriction. Haines Industries, Inc. v. City of Allentown, 237 Pa.Super. 188, 191, 355 A.2d 588, 589 (1975). It is applicable where the prior judgment was entered by default. Zimmer v. Zimmer, 457 Pa. 488, 326 A.2d 318 (1974); Devlin v. Piechoski, 374 Pa. 639, 99 A.2d 346 (1953). It is also applicable where the judgment was entered by agreement. "Although a consent decree is not a *425 legal determination by the court . . . it binds the parties with the same force and effect as if a final decree has been rendered after a full hearing upon the merits. . . . The fact that without the consent of the parties the court might not have rendered the judgment does not affect its effect as res judicata. . . ." Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 500, 327 A.2d 72, 75 (1974) quoting Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962). The doctrine is applicable even though there has been a change or new development in the law following the entry of a final judgment in the first action. Haines Industries, Inc. v. City of Allentown, supra.
Appellant's present action is barred by the judgment entered in the prior action between the same parties on the same cause of action. His argument that the second action asserted a new and different cause of action must fail. The decedent was killed on June 29, 1980. By the time the first action was brought, appellant's claim for work loss benefits had fully accrued; the complaint asserted a right to recover the maximum amount payable, viz. $15,000.00. If appellant had recovered the amount claimed, Harleysville's liability for work loss benefits would have been extinguished. A settlement and judgment in the amount of $1,000.00 was also effective to extinguish appellant's claim for work loss benefits and appellee's liability therefor. The maximum work loss benefit can be recovered only once; and after a cause of action therefor has been extinguished by the entry of judgment, a new cause of action cannot be asserted for wages lost because of the inability of the decedent to work thereafter. A defendant has a right to rely on the stability of judgments and have an end to litigation instituted against him. We hold, therefore, that after an estate's claim for the maximum work loss benefit has been terminated by a judgment on the merits, no further action can be brought for wages lost thereafter.
The decision of the Supreme Court in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983) does not command a different result. It was there held that work losses accrue as a decedent is unable to *426 work and that the statute of limitations begins to run when each loss is actually sustained. After the maximum compensable loss has occurred, however, a cause of action therefor has fully accrued, and an action must be commenced within two years thereafter. New causes of action for work loss benefits do not arise periodically thereafter ad infinitum. So also, when a fully accrued cause of action for the maximum benefit is the subject of a legal action which proceeds to judgment, new causes of action for additional work losses do not arise periodically thereafter.
Appellant argues that the agreed judgment is not a bar to further proceedings because the trial court did not make a separate finding that the settlement was in the best interests of the claimant. In support of this argument he cites Section 106(b)(1) of the No-fault Act, 40 P.S. § 1009.106(b)(1) which provides as follows:
(b) Release or settlement of claim.
(1) Except as otherwise provided in this subsection, no-fault benefits shall not be denied or terminated because the victim executed a release or other settlement agreement. A claim for no-fault benefits may be discharged by a settlement agreement for an agreed amount payable in installments or in a lump sum, if the reasonably anticipated net loss does not exceed two thousand five hundred dollars ($2,500). In all other cases, a claim may be discharged by a settlement to the extent authorized by law and upon a finding, by a court of competent jurisdiction, that the settlement is in the best interest of the claimant and any beneficiaries of the settlement, and that the claimant understands and consents to such settlement.. . .
This section of the statute, however, is not applicable to the instant case. It does not purport to affect either the validity or finality of a judgment on the merits in a prior action. We are not here concerned merely with a "release or other settlement agreement." Appellant's claim for maximum work benefits went to trial and was concluded during trial by the entry of a judgment. "So long as [that] judgment stands unreversed . . . it may not be questioned in *427 any other case." Devlin v. Piechoski, supra, 374 Pa. at 643, 99 A.2d at 348. Moreover, the judgment was entered by and with the express approval of the trial court. The finality of that judgment is not impaired by the court's failure to go further and make an express finding that it was in the best interests of the claimant that the judgment be entered.
When the first action was tried, there was considerable uncertainty about the right of the estate of a decedent to recover work loss benefits without proof of dependency. Bailey and Harleysville determined to resolve this uncertainty and terminate their litigation by entering an agreed judgment. That judgment is res judicata and bars a second action on the same cause. The uncertainty in the law was thereafter resolved judicially by the decision in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), which held that dependency was not determinative of the right of a decedent's estate to recover work loss benefits. This development in the law did not prevent application of the doctrine of res judicata to bar a second action. Cf. Haines Industries, Inc. v. City of Allentown, supra.
The order entering judgment on the pleadings is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265423/ | 99 N.J. 123 (1985)
491 A.2d 650
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DENNIS PRIESTER, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued December 11, 1984.
Decided May 7, 1985.
*128 Anne C. Paskow, Deputy Attorney General, argued the cause for appellant (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Jane A. Grall, Deputy Attorney General, of counsel and on the brief).
Philip De Vencentes, argued the cause for respondent (Galantucci & Patuto, attorneys).
The opinion of the Court was delivered by GARIBALDI, J.
New Jersey Court Rule 3:21-10(b)(2) provides for the amendment of a "custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant." The issues presented in this appeal are (1) what factors should a court consider when exercising its discretion in determining whether a prisoner should be released from prison under Rule 3:21-10(b)(2), and (2) may a court apply this Rule not to release a prisoner, but to reduce his sentence.
The trial court denied the defendant, Dennis Priester's motion for release from his custodial sentence. The Appellate Division reversed the trial court and amended Priester's sentence by "excising his parole ineligibility term." We granted the State's petition for certification. 97 N.J. 637 (1984).
I
In the early morning hours of December 22, 1979, two fourteen-year-old girls were babysitting at the apartment of a neighbor. Priester and a friend arrived at the apartment and asked for the neighbor. When the girls informed the two men that she was not at home, they asked if they could enter the apartment to use the telephone. Shortly thereafter, Priester, armed with a beer bottle, raped one of the young girls while his friend raped the other. The girls reported the incident to the police later that day.
*129 On March 6, 1980, Priester was arrested under a Bergen County indictment for a different offense and was incarcerated at the Bergen County Jail. On May 12, 1980, based upon his acts in this case, Priester was charged in Passaic County with aggravated sexual assault, in contravention of N.J.S.A. 2C:14-2(a)(4) and (6), and with possession of a weapon with purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4(d). Priester has an extensive criminal record. His juvenile record extends back to 1961 and his adult record is comprised of a series of burglary and robbery arrests. At the time Priester committed the acts with which he was charged in Bergen County and in this case, he was in violation of parole for a conviction of armed robbery in Florida.
On August 24, 1980, during the pendency of the charges in this case, Priester escaped from the Bergen County Jail. In the course of that escape, he suffered serious spinal injuries with severe and permanent sequelae, including weakness in the lower extremities, diminished use of his legs, and impairment of bladder, bowel and sexual functions. He underwent surgery and was hospitalized for an extended period.
On April 9, 1981, Priester entered a retraxit plea of guilty to the aggravated sexual assault charge. In exchange for this plea, the State agreed to dismiss one count of the indictment and to recommend that his custodial sentence not exceed a term of ten years. The State indicated that Priester's "physical condition" was a factor considered in formulating the plea. At the time of his sentencing, defendant submitted a medical report prepared by Dr. J. Ladenheim, dated June 12, 1981, which described defendant's condition. The report was based upon a consultation with Priester conducted on September 4, 1980.
On examination the patient had weakness in both lower extremities with anesthesia in scattered portions of the legs and in the private area. The patient has impairment of bladder and bowel function. * * * The patient also received injuries impairing sexual function.
*130 The doctor further noted that as a result of therapy, Priester was ambulatory with the aid of a cane and had learned to catheterize himself. He concluded that the patient required continued rehabilitation, preferably at a center with rehabilitation facilities and access to urological care.
The trial court sentenced Priester on July 8, 1981, to the custody of the Department of Corrections for a term of ten years with a five-year period of parole ineligibility. It found the plea agreement to be overly lenient, given the seriousness of the crime, but accepted it because of defendant's physical condition. The court stated:
As to mitigating circumstances, the Court can find absolutely none. I might say, parenthetically, that the Court wrestled for some time with whether or not I would accept this plea bargain. Frankly, I think you deserve the full measure of the law, the full 20 years. However, a higher authority has intervened in this matter and, for that reason, I am going to go along with the plea negotiations.
Priester appealed, seeking credits for time served prior to conviction. R. 3:21-8. On July 28, 1982, the Appellate Division modified his sentence, approving those credits requested. Priester was incarcerated at Trenton State Prison where he was initially placed in the prison hospital and later transferred to the prison's "medical clemency" wing.
On August 12, 1982, approximately a year after he was sentenced, Priester moved for reconsideration of his sentence pursuant to Rule 3:21-10(b)(2). Neither defendant nor the State introduced new testimony. Priester submitted his own certification and the certification of his attorney. He also produced letters from chaplains at Trenton State Prison and from physicians.
Dr. Ladenheim's letter dated June 12, 1981, was resubmitted along with a supplemental letter, dated October 14, 1981, in which the physician requested "medical clemency" for the patient. A letter from another doctor, who had evaluated defendant's condition in November 1981, stated that Priester "would greatly benefit by the availability of rehabilitative services, *131 both physical rehabilitation or medical treatment, outside of the prison environment." A letter from a third doctor, dated November 27, 1981, described defendant as "in need of an intensive rehabilitative program to help him walk better and for urological reasons." This third physician concluded that medical clemency should be allowed "if the State of New Jersey's prison system does not have the opportunity for a rehabilitation program in the form of physical therapy." None of the doctors who submitted letters had examined the defendant recently; their observations were based on visits that had occurred at least 11 months prior to the defendant's motion.
The trial court, in denying Priester's motion, stated:
Taking the totality of the circumstances, all of the circumstances involved, I cannot, under any circumstances, see my way clear to making any kind of amelioration of the sentence that was imposed. * * *
The trial court added, however, that it would contact the proper authorities in an attempt to obtain the appropriate help needed by Priester.
The Appellate Division reversed the trial court's order and amended the defendant's sentence "by excising the parole ineligibility term, to the end that the Parole Board may freely exercise the discretion entrusted to it by statute to determine when and under what circumstances an inmate may be paroled." In reaching its decision, the court relied upon the fact that the State presented no proofs to meet or contradict the allegations made by defendant. The court held that the State is required to rebut allegations of illness and infirmity based solely on a prisoner's own certifications and letters written by doctors who had not examined the defendant in many months. In response to this ruling, the State sought to supplement the appellate record pursuant to Rule 2:5-5 by submitting the affidavit of the hospital administrator for Trenton State Prison. The Appellate Division refused the State's motion to enlarge the record. The State petitioned for a rehearing, which was denied, and thereafter petitioned for certification.
*132 II
In 1975, the New Jersey Supreme Court Committee on Criminal Practice recommended substantial revisions of Court Rule 3:21-10. Note, Survey of Criminal Procedure Modification of Sentences, 30 Rutgers L.Rev. 657, 668 (1977) [hereinafter cited as Note]. Rule 3:21-10 provides that a motion to reduce or change sentence must be made within a specific time after judgment by the trial or appellate court, subject to certain exceptions under which the motion may be made at any time.[1]
Paragraph (a) establishes time periods within which a motion for reduction or change of sentence must be filed. Effective September 8, 1975, paragraph (b), subsections (1), (2) and (3), were adopted to enlarge the exceptions to the strict and otherwise unenlargeable time limitations of paragraph (a). Paragraph (b) was amended effective September 1979 by the addition of exception (4) and amended again effective September 1983 by the addition of exception (5). Pressler, Current N.J. Court Rules, Comment R. 3:21-10(b)(2) (1985).
Prior to the amendment of this Rule, only the Governor, by exercise of his pardon power, could at any time release an ill or infirm inmate. Historically, this clemency power had been exercised under subjective standards, unbound by precedent, *133 and given little time and attention. Note, supra, at 669. In proposing the new paragraph (b), the Committee on Criminal Practice determined that "`while the judiciary has not exercised the power in the past, the courts have the inherent power, subject to any specific limitations set down by the Supreme Court to reduce or change a sentence at any time.'" State v. Robinson, 148 N.J. Super. 278, 283 (App.Div. 1977).
There are few New Jersey cases interpreting Rule 3:21-10(b)(2). State v. Tumminello, 70 N.J. 187 (1976), was the seminal case interpreting this section. In that case, defendant had been convicted of conspiracy to take and make book. He had no prior criminal record. He was sentenced to a prison term of one to two years. After his indictment but before his sentencing, defendant was afflicted with diabetes mellitus, which required recurring hospitalization and the amputation of several toes due to infection.
As a result of his condition, defendant had lost one toe by the time of sentencing. Following his sentencing, Tumminello was readmitted to the hospital and one toe on his left foot was amputated. The following year a third toe was removed. While his case was pending before this Court, yet another toe was removed. Affidavits were submitted by Tumminello's doctors, who opined that the aggravating circumstance of imprisonment "might well result in the loss of one or both of his legs due to infection." Id. at 190.
We held that defendant should be released from prison pursuant to Rule 3:21-10(b)(2). Among the circumstances that influenced our determination were the following: the serious nature of the defendant's illness, the devastating effect of incarceration on defendant's health, the sentencing court's lack of knowledge of the nature of the defendant's illness since he had no medical evidence before him whatsoever, that court's resultant inability to envision the rapid progress and devastating effects of the disease on the defendant, the venial nature of the crime involved, and the absence of a prior criminal record. However, *134 we expressly reserved judgment in those situations in which the underlying crime was of a more serious nature. "The scale might very well tip in favor of incarceration despite the possibility of adverse physical effects were we faced with an experienced criminal or with a more shocking crime." Id. at 194.
Progeny of Tumminello have moved to occupy that gap. State v. Sanducci, 167 N.J. Super. 503 (App.Div.), certif. denied, 82 N.J. 263 (1979), is similar to the case before us today. There, a defendant convicted of threatening to kill for the purpose of extortion moved to have his custodial sentence suspended due to his health. Defendant Sanducci suffered from a long-standing chronic pulmonary condition and diabetes. He suffered a heart attack after imposition of his sentence and while his appeal was pending. He claimed that "in view of his poor state of health, particularly his severe heart condition and long standing diabetic condition, both of which require continued treatment and medication, the trial judge erred in failing to amend his custodial sentence to permit his immediate release from State Prison pursuant to R. 3:21-10(b)(2)." Id. at 510. In Sanducci, it was evident that the trial court was aware of defendant's alleged infirmities at the time of imposing the original sentence. In affirming, the Appellate Division found that the seriousness of the crime and the availability of medical care and treatment in the prison setting militated against any interest that might be served by suspending the sentence. The Appellate Division, in applying the balancing test espoused in Tumminello, stated:
Moreover, consideration of all of the factors, especially the serious nature of the crime and the circumstances attendant upon its commission, compels the conclusion that the trial judge properly denied his motion. The purposes underlying the continuation of defendant's custodial sentence outweigh any interest which might be served by suspending it. Cf. State v. Tumminello, 70 N.J. 187, 195 (1976).
[Id. 167 N.J. Super. at 510.]
In State v. Meighan, 173 N.J. Super. 440, 456 (App.Div.), certif. denied, 85 N.J. 122 (1980), the Appellate Division affirmed the trial court's refusal to release from prison a defendant *135 convicted of manslaughter who was suffering from sicklecell anemia. Here, the key considerations were the seriousness of the crime and, unlike Tumminello, but like Sanducci, the fact that the trial court knew of the defendant's medical condition at the time of sentencing. In fact, the trial court specifically sentenced defendant to the Youth Complex because of his condition.
III
Court Rule 3:21-10(b)(2) offers extraordinary relief to a prisoner. There is no greater benefit one can bestow on a prisoner than release from prison. Accordingly, the Rule must be applied prudently, sparingly, and cautiously.
A motion made pursuant to Rule 3:21-10(b)(2) is committed to the sound discretion of the court. Tumminello, supra, 70 N.J. at 193. It is an extension of the sentencing power of the court, involving the same complexity as the sentencing decision and the same delicate balancing of various factors.
The predicate for relief under the Rule is proof of the serious nature of the defendant's illness and the deleterious effect of incarceration on the prisoner's health. As proof of the devastating effect of prison life on a defendant's health, the court should consider the availability of medical services in prison, including rehabilitative therapy. However, this factor is important only insofar as it tends to establish that without such medical services the defendant's condition will seriously worsen or deteriorate in prison. It is the existence of this serious threat to defendant's physical condition, rather than the prison system's ability to provide beneficial and desirable medical services, including rehabilitative health care, that is determinative of a Rule 3:21-10(b)(2) motion. Therefore, in order to prevail, the prisoner must show that the medical services unavailable at the prison would be not only beneficial and, in the case of therapy, rehabilitative, but are essential to prevent further deterioration in his health. See Tumminello, supra, 70 *136 N.J. at 193 (medical evidence clearly established that defendant's condition was rapidly deteriorating and his health would be placed in greater danger by incarceration).
Moreover, a prisoner also must show that changed circumstances in his health have occurred since the time of the original sentence. Support for that position is found in logic and federal law. Court Rule 3:21-10 was patterned after Federal Rule of Criminal Procedure 35.[2]State v. Tumminello, supra, 70 N.J. at 194. In ruling on motions for reduction of sentence pursuant to Federal Rule of Criminal Procedure 35, federal courts have held that "the Court does not grant ordinarily a motion for a reduced-sentence when the ground advanced therefor was considered when the sentence was fixed." United States v. Bundy, 587 F. Supp. 95, 97 (M.D.Tenn. 1983) (citing United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.1968)); see 8A J. Moore, Moore's Federal Practice ¶ 35.02[1] (2d ed. 1984). Moreover, if Rule 3:21-10(b)(2) were held to provide for review of a sentence in the face of no new circumstances, it would effectively vitiate the time requirements imposed by Rule 3:21-10(a).
Thus, an essential predicate to the review of a custodial sentence pursuant to Rule 3:21-10(b)(2) is that a change of circumstances must have occurred. The change of circumstances most likely to have occurred between the sentencing and the hearing is the severe deterioration of the prisoner's health. However, the change may also represent a court's *137 securing information about the defendant's health previously unknown to the sentencing court. See, e.g., Tumminello, supra, 70 N.J. at 193 (where the sentencing judge "had before him no medical evidence whatsoever.")
In addition to the requirement of a change of circumstances, among other factors we deem relevant to the determination of a Rule 3:21-10(b)(2) motion are the nature and severity of the crime, the severity of the sentence, the criminal record of the defendant, the risk to the public if the defendant is released, and the defendant's role in bringing about his current state of health.
IV
As with sentencing, the scope of appellate review of a trial court's decision to grant or deny a Rule 3:21-10(b)(2) motion is whether the trial court abused its discretion. See State v. Roth, 95 N.J. 334, 364 (1984). We hold that the trial court properly balanced the relevant factors in this case and did not abuse its discretion in denying defendant's release from prison under Rule 3:21-10(b)(2).
Here, there is no dispute about the severity of the defendant's injuries or the daily hardships that he now faces as a result of those injuries. Nor is there any dispute that no change in circumstances contemplated by the Rule has occurred since the original sentencing. The condition of the defendant's health was a critical factor in the State's formulation of its plea bargain and in the trial court's acceptance of that plea.
Moreover, the trial court balanced the defendant's medical condition against a heinous crime, the rape of a fourteen-year-old-girl, the leniency of the sentence imposed in view of the maximum time permissible, and the extensive criminal record of the defendant. The sentencing court, unlike the court in Tumminello, was fully cognizant of the defendant's condition. We also find it relevant that defendant's serious injury and resulting illness are the direct result of his own criminal *138 behavior. Escape from prison is a second-degree crime if the defendant employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape. Otherwise it is a crime of the third degree. N.J.S.A. 2C:29-5(d). Moreover, the seriousness of this crime is evidenced by the fact that deadly force may be employed to prevent the escape. N.J.S.A. 2C:3-7.
We agree with the trial court that the evidence presented by the defendant namely, his own certification and physicians' and chaplains' letters failed to show that his medical condition had seriously deteriorated in prison or that rehabilitation services in prison were unavailable to him. There is sparse evidence on the record that there has been a deterioration in defendant's health since his initial date of sentencing. The defendant submitted into evidence three physicians' letters and two chaplains' letters. None of the physicians' letters was based upon observations made within less than eleven months of defendant's application for reconsideration of sentence. Moreover, those letters merely suggested that defendant was "in need of an intensive rehabilitation program" and "would greatly benefit" from rehabilitative services and that such services would help him "to walk better." It was also suggested that "medical clemency should be allowed if the State of New Jersey's prison system does not have the opportunity for a rehabilitation program in the form of physical therapy." The doctors' letters merely restate defendant's condition and indicate nothing as to the progress of his disability. The only indications that defendant's condition has worsened were supplied through his own certification, the certification of his attorney, and two letters from prison chaplains.
Such evidence clearly does not demonstrate that the defendant's condition had so deteriorated since the date of the original sentence as to warrant clemency under the standards of Tumminello. While these letters implicitly suggested that better rehabilitative services were available outside prison, the trial court correctly held that they did not show the devastating *139 impact on his health resulting from incarceration that is necessary to obtain relief.
The trial court relied on State v. Stanley, 149 N.J. Super. 326, 329 (App.Div.), certif. den., 75 N.J. 21 (1977), in holding that a prisoner's certification and doctors' letters were not sufficient to establish the prisoner's medical condition or the availability of proper medical services at the prison. In Stanley, the Appellate Division stated that "where there is any reasonable area of dispute as to the gravity of defendant's physical condition and the unlikelihood of its medical treatment in the prison setting," id. at 329, merely introducing letters from physicians is inadequate to support an application for modification of sentence. "The physicians themselves should testify as to the matters within their expertise, thus providing both the prosecutor who resists the application and the judge with the opportunity of fully exploring the pertinent medical facts." Id.
In this case, the State also relied on the Stanley decision in not introducing evidence to rebut defendant's claims of illness and infirmity warranting release from prison and of insufficient medical services available at the prison.[3] While we recognize that a physician's testimony in many Rule 3:21-10(b)(2) hearings is preferable to letters, it is not necessary in each case. Rather, we leave it to the court's discretion to determine whether such testimony is necessary under the circumstances of the case.
Moreover, we hold that when there exists reasonable dispute as to the availability of proper medical services in prison, the State should submit evidence to the court that medical services are available, for it is the prison officials who are in the best position to introduce that evidence. We recognize *140 as we did with the physician's evidence, supra, that while a prison official's testimony would be preferable to a written statement, we hold that it is not necessary in each instance. Rather, we leave it to the court's discretion to determine whether such testimony is necessary or whether an affidavit from such officials would be sufficient to enable the court to make its determination.
We reverse the Appellate Division judgment that there is sufficient evidence in this record to reduce the defendant's sentence pursuant to Rule 3:21-10(b)(2). Neither the defendant nor the State presented any evidence as to the current state of the defendant's health, the medical services available in the prison, or the effect of such services or lack thereof on the prisoner's health. In such a case, we might remand the case to the trial court and request that the defendant and the State produce such additional evidence. We need not decide that question here. Because Priester will be paroled from prison this month, a remand would be moot.
V
We now turn to the other issue in this appeal whether a trial court may apply Rule 3:21-10(b)(2) to reduce a prisoner's sentence rather than to suspend it. Here, the Appellate Division reduced Priester's sentence by excising his parole ineligibility term.
The language of Rule 3:21-10(b)(2) speaks only of the release of a prisoner. In Sanducci, supra, 167 N.J. Super. at 511, the Appellate Division interpreted the Rule to permit only the release of the defendant, and not a reduction or change of sentence. Such a reduction or change of sentence and the relevant time provisions are governed by Rule 3:21-10(a).
The trial court is empowered by R. 3:21-10(b)(2) to amend a custodial sentence to permit the release of a defendant because of illness or infirmity. It does not, however, authorize a reduction of a defendant's sentence for these reasons without the concurrence of the prosecutor. An application for a reduction or change of sentence by a defendant is governed by and must be *141 made within the time periods set forth in R. 3:21-10(a). The time limitations set forth in this subsection of the rule are to be strictly construed and cannot be relaxed or enlarged. R. 1:3-4(c); State v. Tumminello, supra, 70 N.J. at 191-192, n. 1; State v. Tully, 148 N.J. Super. 558, 563 (App.Div. 1977), certif. den. 75 N.J. 9 (1977). See also, Pressler, Current N.J. Court Rules, Comment to R. 3:21-10. [Id. 167 N.J. Super. at 511.]
Therefore, Sanducci held that it is error to reduce a defendant's custodial sentence once a determination is made that the defendant's state of health does not warrant his immediate release from prison. Id. at 511-12; see also State v. Giorgianni, 189 N.J. Super. 220, 229 (App.Div.), certif. den., 94 N.J. 569 (1983).
This holding is supported by the Report of the New Jersey Supreme Court's Committee on Criminal Practice, 98 N.J.L.J. 321 (1975). In its discussion of proposed paragraph (b), the Committee noted that:
Rule 3:21-10(b)(2), as proposed, would permit a custodial sentence to be amended to allow the release of a defendant because of illness or infirmity of the defendant * * *. Presently only the Governor, by exercise of the pardon power, can at any time release an ill or infirm inmate. [Id. at 344 (emphasis added).]
This conclusion is further buttressed by the reasoning espoused in the case law that it is only the devastating impact of incarceration on a prisoner's health that permits the application of the Rule. Unless a prisoner's health is so threatened, the Rule should not be applied. It follows that if a court finds that a prisoner may remain in prison, albeit for a reduced term, that prisoner has not been found to be in a situation threatening to his health and the Rule should not be invoked.
Accordingly, we hold that Rule 3:21-10(b)(2) may be applied only to release a prisoner from prison but not to reduce or change his sentence. Therefore, we reverse the Appellate Division's judgment to excise Priester's parole ineligibility term pursuant to Rule 3:21-10(b)(2).
For reversal Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN and GARIBALDI 6.
For affirmance None.
NOTES
[1] The Rule provides in pertinent part:
3:21-10. Reduction or Change of Sentence
(a) Time. Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction and not thereafter.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or noncustodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) changing a custodial sentence to permit entry into the Intensive Supervision Program.
[2] The pertinent provision of Federal Rule 35 states:
(b) REDUCTION OF SENTENCE. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision [Fed.R.Crim.P. 35(b).].
[3] The Appellate Division denied the State permission to supplement the appellate record pursuant to R. 2:5-5 by submitting an affidavit of the Hospital Administrator of Trenton State Prison outlining Priester's condition, the rehabilitation efforts on his behalf and the conditions of his confinement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265427/ | 491 A.2d 523 (1985)
Edward H. FORGOTSON, Appellant,
v.
William H. SHEA, et al., Appellees.
Nos. 84-714, 84-785.
District of Columbia Court of Appeals.
Argued January 24, 1985.
Decided April 30, 1985.
*524 Thomas A. Guidoboni, Washington, D.C., with whom Walter J. Bonner, Washington, D.C., was on brief, for appellant.
*525 Jacob A. Stein, Washington, D.C., with whom Curtis E. von Kann, Washington, D.C., was on brief, for appellees.
Before PRYOR, Chief Judge, and NEBEKER and ROGERS, Associate Judges.
ROGERS, Associate Judge:
Appellant Forgotson appeals the granting of a motion to dismiss his complaint on the ground of forum non conveniens and the denial of his motion for reconsideration.[1] He contends that, because he became a resident of the District of Columbia prior to the trial court's decision on appellees' motion to dismiss, and so advised the court in his motion for reconsideration, the trial court abused its discretion in dismissing his claim. We affirm.
I
In July 1981, Edward H. Forgotson, Esquire, became a general partner at the law firm of Shea & Gould. The firm's principal office is located in New York City, although Mr. Forgotson conducted his practice exclusively from its District of Columbia office.[2] He alleges that in his first year with the partnership he generated income in excess of nine hundred thousand dollars ($900,000), the partnership realized substantial profits, and his share of the profits was approximately three hundred and fifty thousand dollars ($350,000); in the following year the partnership's profits grew substantially, and he contributed over one million dollars in revenue to its income, but his share of the partnership profits decreased by ninety thousand dollars ($90,000). Attributing the decrease to his announced intention to resign on June 30, 1983, Mr. Forgotson objected to this allocation of profits. After informal attempts to resolve this dispute failed, he wrote the partnership on October 13, 1983, indicating his desire to settle the dispute through arbitration pursuant to paragraph 22 of their partnership agreement.[3]
The partnership responded by filing an application on October 26, 1983 for a stay of arbitration in the Supreme Court for the State of New York. Mr. Forgotson did not contest the New York action. Instead, he filed the instant action against the partnership in the Superior Court of the District of Columbia on November 14, 1983, for an accounting "of all the partnership dealings and transactions from July 1, 1981, and of all monies received and paid out," and for damages in the amount of $200,000. On November 21, 1983, the New York court granted the partnership's petition for a stay of arbitration, holding that, under paragraph 5(c) of the partnership agreement,[4] disputes involving determinations about compensation do not fall under the *526 arbitration provision of the partnership agreement, and, as such, are not subject to judicial review. Shea & Gould v. Forgotson, No. 266993/83 (N.Y. Nov. 21, 1983).
In the District of Columbia action, the partnership moved to dismiss the complaint on three grounds: (1) res judicata and collateral estoppel, on the basis of the New York court judgment; (2) failure to state a claim upon which relief can be granted, on the basis of paragraph 22 of the partnership agreement; and (3) forum non conveniens. Attached to the motion to dismiss was the affidavit of Milton S. Gould, a partner in the firm. He averred that the partnership's principal office as well as its administrative records, books and accounts are in New York; all decisions relating to the distribution of net income among the partners were made in New York; of the 66 general partners named as defendants in the complaint, 62 work in the New York office; William A. Shea and Milton S. Gould, in whose "sole joint unreviewable discretion is vested the decision" of distribution of net income among the partners, live and work in New York; and paragraph 22 fixes New York as the forum for the resolution of all disputes. Mr. Forgotson filed an opposition, the partnership replied, and then the trial court heard oral arguments on March 27, 1984. In its order dismissing the complaint, the trial court stated that Mr. Forgotson was not a District of Columbia resident and that the court had applied appropriate factors in making its forum non conveniens determination. Mr. Forgotson filed a motion to reconsider and to vacate judgment on April 2, 1984, which was supported by an affidavit in which he stated that, for reasons unrelated to the suit, he had become a resident of the District on the weekend prior to the decision on the motion to dismiss. The motion to reconsider was denied on April 23, 1984.
II
"`The decision to grant or deny a motion to dismiss on the ground of forum non conveniens is committed to the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion.'"[5]Demontmorin v. DuPont, 484 A.2d 582, 584 (D.C.1984) (quoting Asch v. Taveres, 467 A.2d 976, 978 (D.C.1983)). The defendant bears a heavy burden in seeking dismissal on the ground of forum non conveniens, and unless the balance is strongly in favor of the defendant, the plaintiff's choice of a forum should be given deference. Demontmorin v. DuPont, supra, 484 A.2d at 584; Asch v. Taveres, supra, 467 A.2d at 978 and cases cited therein. In ruling on a motion to dismiss for forum non conveniens, a trial court must consider both the private interests of the litigant and the public interest. Demontmorin v. DuPont, supra, 484 A.2d at 584; Asch v. Taveres, supra, 467 A.2d at 978 and cases cited therein.[6]
During oral argument on the motion to dismiss, the trial court found the partnership's analysis of the Asch v. Taveres factors, supra note 6, to be persuasive. With *527 regard to the private interests, the trial court viewed New York as a better forum.[7] At the hearing, the court stated:
Why shouldn't this all be done in New York? That's where most of those people who are sued are; that's where, I assume, the records, the accounting ..., the money that the firm has in the bank that would be attached. Everything is in New York except the Plaintiff who happened to work here. Now, why shouldn't the New York courts decide all the issues in this case?
Mr. Forgotson contends the trial court abused its discretion because: the partnership had an office in the District of Columbia; he worked exclusively out of its District of Columbia office; all the partners working out of the District of Columbia office are members of the District of Columbia Bar; one member of the partnership is a District of Columbia resident; the partnership was a party to an unrelated litigation on one prior occasion in the District of Columbia;[8] he has conducted his law practice in the District of Columbia for many years; and he planned to take discovery on a maximum of six partners, including two from the District of Columbia office. All of these factors were presented to the trial court before it ruled. Regarding the public interests, the trial court acknowledged that trial dockets in this jurisdiction are overloaded, indicated that it thought the law of New York would apply, and stated the present case looked like forum shopping.
This court has affirmed the grant of a motion to dismiss for forum non conveniens where the only District of Columbia contact was the plaintiff's employment in the District of Columbia. Haynes v. Carr, 379 A.2d 1178, 1180-81 (D.C.1977). Also, in Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089 (D.C. 1976), the court affirmed a dismissal where the plaintiff was a District of Columbia resident, but all else concerning the litigation involved non-District of Columbia entities and events which occurred outside of the District of Columbia. Id. at 1091-92. The record in the instant case does not suggest that the partnership had a significant presence in the District of Columbia insofar as the issues in the underlying litigation are concerned. Mr. Forgotson does not dispute any of the factual averments in Mr. Gould's affidavit. Nor does he allege the partnership agreement was signed in the District of Columbia, but only that it was signed either here or in New York. Notwithstanding his assertion that the partnership agreement did not obligate him to use New York as a forum for resolution of his dispute, another forum was available since he clearly had the choice of entering an appearance, moving to reconsider or appealing the New York court judgment.
We find no merit to Mr. Forgotson's contention that because the partnership bears the burden of proof in showing the public interest weighs against his choice of forum, Consumer Federation of America v. Upjohn Co., 346 A.2d 725, 730 (D.C. 1975), and in showing the District's trial dockets are overloaded, it must also show the New York court dockets are heavier than those in the District of Columbia. Further, even were Mr. Forgotson correct that New York law does not apply and that this action is governed by the Uniform Partnership Act, which has been adopted by both jurisdictions, we would not conclude the trial court abused its discretion in weighing the appropriate factors; the facts presented to the trial court and the uncontroverted averments in Mr. Gould's affidavit support the trial court's weighing of the appropriate factors. Accordingly, we hold the trial court did not abuse its discretion *528 in granting the motion to dismiss on the grounds of forum non conveniens.
III
Turning to appellant's claim that the trial court abused its discretion in denying his motion for reconsideration, we also find no abuse of discretion by the trial court. Mr. Forgotson asserts that his change of residency to the District of Columbia, for reasons unrelated to this suit, prior to the granting of the motion to dismiss, constituted "changed circumstances" requiring the court to reapply the balancing test in his favor. He relies on Washington v. May Department Stores, 388 A.2d 484, 486 (D.C.1978) (District of Columbia residency important factor in balancing equation), and claims it makes no difference that he became a resident after the action was filed. This follows, he argues, from the fact that since the partnership had not yet filed an answer and the trial court had not treated its motion to dismiss as a motion for summary judgment, Super.Ct.Civ.R. 12(b), he was free to dismiss his complaint as a matter of right under Super.Ct.Civ.R. 41(a)(1)(i), and thereafter file a new action asserting his District of Columbia residency. He relies on Bernay v. Sales, 435 A.2d 398, 401 (D.C.1981) (summary judgment motion denies plaintiff right of voluntary dismissal).
In the trial court, Mr. Forgotson did not designate the rule under which he was filing his motion to reconsider and vacate judgment. On appeal, he asserts his motion is in the nature of a motion to amend the complaint, a step he may take as a matter of right before responsive pleadings are filed under Super.Ct.Civ.R. 15(a). Sonneville v. Stedef, Inc., 449 A.2d 1087, 1089 (D.C.1982). But the trial court has already issued an order; therefore, we find no merit to this contention. Because Mr. Forgotson is requesting reconsideration based on additional circumstances, the motion to reconsider is properly considered under Super.Ct.Civ.R. 60(b). Wallace v. Warehouse Employees Union #730, 482 A.2d 801, 804 (D.C.1984) (Rule 60(b) proper where movant requesting consideration of additional circumstances for first time); Coleman v. Lee Washington Hauling Co., supra, 388 A.2d at 46 n. 5 (Rule 60(b) addresses matters not of record); Graves v. Nationwide Mutual Insurance Co., 151 A.2d 258, 260 (D.C.1959) (nature of motion determined by relief it seeks). Therefore, our standard of review is whether the trial court abused its discretion in denying the motion. Wallace v. Warehouse Employees, supra, 482 A.2d at 803 & n. 5.
Any reconsideration under Rule 60(b) on the basis of "changed circumstances" is subject to the limitation that the changed circumstances could not have been discovered through the exercise of due diligence before the lower court rendered its original decision. Duran v. Elrod, 713 F.2d 292, 296 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984); United States v. 329.73 Acres of Land, 695 F.2d 922, 926 (5th Cir.1983); Benjamin v. Malcolm, 528 F.Supp. 925, 928 (S.D.N.Y.1981). Similarly, where reconsideration is sought on the basis of "newly discovered evidence," the movant must demonstrate it could not reasonably have been discovered in advance of trial and would likely produce a different result at a new trial. See Frost v. Hays, 146 A.2d 907, 909 (D.C.1958); Bradley v. Prince, 105 A.2d 253, 254-55 (D.C.1954); Potts v. Catterton, 82 A.2d 133, 134 (D.C.1951); cf. R. Mars Wholesalers, Inc. v. Baumritter Corp., 223 A.2d 332 (D.C.1966) (time of discovery of evidence is critical).[9]
Mr. Forgotson's change of residence did not constitute "changed circumstances" within the meaning of Rule 60(b). He avers he had moved into the District prior to the March 27, 1984 hearing. However, *529 he apparently failed to inform his counsel about this change in residency as his counsel told the trial court three times during the March 27 hearing that Mr. Forgotson was not a District of Columbia resident; nor did he amend the original complaint which stated he was a Maryland resident. Failure to keep one's attorney informed and the subsequent ignorance of counsel do not constitute "changed circumstances" or "newly discovered evidence" within the meaning of Rule 60(b). See, e.g., Western Transportation Co. v. E.I. DuPont de Nemours & Co., 682 F.2d 1233, 1236 (7th Cir.1982); Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir.1972). Moreover, the effect of a change of residency into the forum state has not been litigated in this jurisdiction, and apparently rarely elsewhere. The one case cited by the parties holds that moving into a state, by itself, will not convert that state into an appropriate and convenient forum. St. Louis-San Francisco Railway Co. v. Superior Court, 290 P.2d 118, 121 (Okla. 1955).[10]See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 26, comment g (1971) ("change in domicile of the parties or other change in circumstances does not destroy jurisdiction, but may lead the court in a reasonable exercise of discretion to refuse to exercise jurisdiction"). Given the circumstances underlying the trial court's balancing of the Asch v. Taveres factors, supra note 6, we are unable to say the trial court abused its discretion in denying Forgotson's motion to reconsider.[11]
Accordingly, the judgment is therefore
Affirmed.
NOTES
[1] A dismissal on the ground of forum non conveniens is appealable. Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 811-13 (D.C.1974); Arthur v. Arthur, 452 A.2d 160, 162 (D.C.1982).
Although the civil rules of the D.C. Superior Court do not expressly provide for motions to reconsider, this court has reviewed the trial court's action on such motions on appeal where the motion has sought relief under an appropriate rule. American Ins. Co. v. Smith, 472 A.2d 872, 874 (D.C.1984); Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 46 (D.C.1978) (D.C. App.R. 4 II(a)(2) recognizes motions to reconsider).
[2] We view the evidence most favorably to appellant. Patrick v. Hardisty, 483 A.2d 692, 696 (D.C.1984); Nader v. de Toledano, 408 A.2d 31, 42 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). The facts in this opinion are uncontested.
[3] Paragraph 22 of the partnership agreement states in relevant part:
Any controversy, dispute or claim arising out of or relating to this Agreement, or the breach thereof, or affecting this Agreement in any way, shall be settled by arbitration in New York, New York, except on those instances whereby under the provisions hereof the decision of William A. Shea and Milton S. Gould is stated to be binding upon all of the Partners.
[4] Paragraph 5(c) of the partnership agreement states in relevant part:
The Net Income of the Firm shall be distributed among the Partners in such amounts as may be determined by the decision of William A. Shea and Milton S. Gould, reach [sic] by them in the exercise of their sole joint unreviewable discretion.
[5] The doctrine of forum non conveniens has been codified in the District of Columbia:
When any District of Columbia court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.
D.C.Code § 13-425 (1981).
[6] The court in Asch v. Taveres, supra, 467 A.2d at 978 (quotation omitted), defined the competing interests which must be balanced as follows:
Factors relevant to the private interest concern the ease, expedition, and expense of the trial, and include the relative ease of access to proof; availability and cost of compulsory process; the enforceability of a judgment once obtained; [and] evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum, while public interest considerations include administrative difficulties caused by local court dockets congested with foreign litigation; the imposition of jury duty on a community having no relationship to the litigation; and the inappropriateness of requiring local courts to interpret the laws of another jurisdiction.
These criteria were first announced in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).
[7] See Cockrell v. Cumberland Corp., 458 A.2d 716, 718 (D.C.1983) (parties reside outside the District); Mobley v. Southern Ry. Co., 418 A.2d 1044, 1048-49 (D.C.1980) (necessary evidence and witnesses located outside the District).
[8] Bridge v. Shea, No. 11809-83 (D.C. filed 1983) (pretrial scheduled Sept. 1985).
[9] Although these cases involved motions for a new trial, rather than motions for reconsideration or for rehearing, "[a] motion for rehearing is in all respects the same as a motion for a new trial." Graves v. Nationwide Mutual Ins. Co., supra, 151 A.2d at 261.
[10] In Reagor v. Travelers Ins. Co., 92 Ill.App.3d 99, 103-06, 415 N.E.2d 512, 515-16 (1980), plaintiffs changed residence after the accident; the court held this was not a factor in suits on insurance contracts.
[11] Mr. Forgotson also contends the trial court initially applied the balancing test incorrectly by not considering the fact that he was employed in the District. Although employment in the District is a factor to be considered, it is rarely considered to be of overriding significance. Haynes v. Carr, supra, 379 A.2d at 1180; cf. Allstate Ins. Co. v. Hague, 449 U.S. 302, 314-15, 101 S.Ct. 633, 640-41, 66 L.Ed.2d 521 (1981) (employment is an important state concern in work related tort injury). We do not find employment of such significance here as to hold that the trial court abused its discretion in ruling that private interests favored the New York forum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265444/ | 491 A.2d 496 (1985)
Sedessa RUSTIN and Felicia Shade Tate, Appellants,
v.
DISTRICT OF COLUMBIA and Washington Patrol Services, Inc., Appellees.
Nos. 84-138, 84-261.
District of Columbia Court of Appeals.
Argued January 24, 1985.
Decided April 18, 1985.
*498 John W. Perry, Bethesda, Md., with whom Rotraud M. Perry, Bethesda, Md., was on briefs, for appellants.
Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for the District of Columbia.
Ronald G. Guziak, Washington, D.C., for Washington Patrol Services, Inc.
Before PRYOR, Chief Judge, and NEBEKER and FERREN, Associate Judges.
PRYOR, Chief Judge:
This is an appeal from an order of the trial court granting the motions of appellees, the District of Columbia and the Washington Patrol Services, Inc. (hereinafter WPS), for summary judgment, and dismissing the claims of appellants, Sedessa Rustin and Felicia Shade Tate. We affirm.
Factual Background
On October 7, 1980, James Kenneth Tate was shot and killed by Barthaniel L. Robinson.[1] At the time of the shooting, both men were employed as security guards by WPS, a private firm, licensed by the District of Columbia,[2] engaged in the business of providing security services. The shooting occurred while Tate and Robinson were on duty at Waterside Mall in Southwest, Washington, D.C., in a building which was leased by the Government Services Administration (hereinafter GSA), a federal agency, and which was entirely occupied by the United States Environmental Protection Agency (hereinafter EPA). WPS was under contract with GSA to provide security services for the EPA building.
Robinson stated in his deposition that on the day of the shooting, he had been drinking alcohol and smoking marijuana prior to coming to work. Robinson was issued a gun when he arrived on duty at 2:30 p.m. He continued to consume alcohol and smoke marijuana while on duty. At approximately 5:30 p.m., Robinson left his duty station, walked to Tate's post in a different part of the building, and, apparently unprovoked, shot and killed Tate in front of several witnesses.
Robinson's deposition and his Army records reveal that prior to beginning his employment with WPS in April 1980, and while he was enlisted in the Army between January 1977 and December 1979, he had received treatment for drug and alcohol abuse. Robinson's records also indicate that he was disciplined while in the Army, released before his enlistment ended, and prohibited from reenlisting.
Following Mr. Tate's death, appellant, Ms. Sedessa Rustin, as administratrix of Mr. Tate's estate, filed a worker's compensation claim under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1982) (as incorporated by D.C.Code §§ 36-301 et seq. (1981)) (hereinafter LHWCA or the Act), for any and all benefits the estate was entitled to as a result of Mr. Tate's death. The estate subsequently received a compensation award.
Thereafter, Ms. Rustin and Felicia Shade Tate, the decedent's widow, brought suit under the D.C. Wrongful Death Act and the D.C. Survival Act[3] against the District of Columbia and WPS.
Appellants' action against the District of Columbia alleged that the District government's negligent failure to apply District of Columbia laws regulating the certification and employment of private security officers proximately caused the death of Mr. *499 Tate. Appellants argue that had WPS security officers, and in particular Mr. Robinson, been subject to these regulations, Robinson, because of his personal history, could not have been hired as a security guard permitted to carry a gun. They reason that if Robinson had not been hired as an armed security guard, Tate would not have been killed.
In their action against WPS, appellants acknowledge that they secured an award under the LHWCA but contend that the "exclusive remedy" provision of the Act does not bar a tort action against the employer where the latter has committed an intentional tort. They allege that WPS intentionally conspired to bring about the shooting death of Mr. Tate.
The trial court, finding no disputed issues of material fact with respect to either defendant, granted both of appellees' motions for summary judgment and this appeal followed.
I. DISTRICT OF COLUMBIA
A. The Regulations
The focus of appellants' claims against the District of Columbia government is the District of Columbia Regulations for the Certification and Employment of Security Officers, 5JJ DCRR §§ 1.1 et seq. (1979) (hereinafter the Regulations).
The Regulations were adopted by the Council of the District of Columbia in 1974. They require that every private security agency seeking to operate in the District of Columbia must first be certified by the Mayor. Id. §§ 1.1, 2.1. The Regulations establish a number of qualifications for certification. For example, a person must be at least 18 years old, of good moral character and in reasonably good health. Id. §§ 3.3, 3.5, 3.6. In determining whether a person is of good moral character, the Mayor is instructed to consider, "information received from the applicant's employers of the past five years, character references, convictions for misdemeanors, military record, and other relevant information...." Id. § 3.5. An applicant cannot be addicted to drugs or alcohol, and must pass a written test. Id. §§ 3.5, 3.7.
All security guards certified under the Regulations are required to carry identification cards issued by the Mayor. Id. § 4.1. Security guards must wear uniforms which are approved by the Mayor. The uniforms must be "distinctly different" from the uniform of Metropolitan Police Department officers. Id. § 4.2(a). The only weapon a security officer may carry in the course of employment is a "night stick constructed solely of wood"; the carrying of "a deadly weapon, handcuffs, or aerosol chemical dispenser in the course of employment" is prohibited and grounds for revocation of certification. Id. § 5.1(f).
Shortly after the adoption of these Regulations, officials of the GSA met with the District of Columbia Corporation Counsel to determine the impact of the Regulations on the GSA's ability to protect federal buildings in the District of Columbia.[4] GSA had contracted with a number of private security firms[5] to guard certain federal buildings. GSA was concerned about the possible applicability of the District regulations prohibiting the carrying of firearms because, according to the GSA Administrator, regulations of a number of federal agencies require the use of armed security officers in those agencies' buildings.
On January 25, 1975, the Acting Regional Administrator of GSA wrote D.C. Mayor Washington a letter formally requesting a legal opinion concerning the applicability of the new Regulations to contract security *500 officers who guard federal buildings. Mayor Washington referred the matter to the Corporation Counsel with a request for an opinion.
On May 28, 1975, the Corporation Counsel issued a formal opinion in which he concluded that the Regulations were not intended to cover security matters of the federal government or security officers while they are on duty on federally-owned or leased premises in the District of Columbia pursuant to a contract with the GSA. As a result of the Corporation Counsel's opinion, the District government does not subject security officers under contract with GSA to the requirements of the Regulations nor does the District purport to certify such officers.[6]
B. Sovereign Immunity
The trial court granted the District of Columbia's motion for summary judgment on the ground that the District's actions in question were discretionary in nature and, accordingly, the claim against it is barred by the principle of sovereign immunity.[7]
The doctrine of sovereign immunity is well-settled in the District of Columbia. Chandler v. District of Columbia, 404 A.2d 964, 966 (D.C.1979). Under this doctrine, the District government is immune from suit in tort where the act complained of was committed in the exercise of a discretionary function. However, if the act was committed in the exercise of a ministerial function, the government is not immune. Wade v. District of Columbia, 310 A.2d 857, 860 (D.C.1973) (en banc); Wagshal v. District of Columbia, 216 A.2d 172, 173 (D.C.1966).
Ministerial acts are those which require "the execution of a policy as distinct from its formulation." Biscoe v. Arlington County, 238 U.S.App.D.C. 206, 216, 738 F.2d 1352, 1362 (1984). In contrast, discretionary functions are described as those involving "policy considerations" where "no statutory or regulatory requirements [limit] the exercise of policy discretion." Chandler v. District of Columbia, supra, 404 A.2d at 966; see Biscoe v. Arlington County, supra, 238 U.S.App.D.C. at 216, 738 F.2d at 1362. An action is considered discretionary "if the prospect of liability for the decisions [an] officer must make in the course of his performance would unduly inhibit the officer's ability to perform his function." Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 388, 563 F.2d 462, 475 (1975). They are decisions "for which there is no reason to believe a jury would render a sounder decision than those officials chosen, qualified, and prepared to make them." Chandler v. District of Columbia, supra, 404 A.2d at 966.
The activities at issue herethe Mayor's request for a legal opinion on the proper construction and application of District regulations, the issuance of the Corporation Counsel's opinion, and the District government's subsequent reliance on that opinionall involve policy formulation and judgment-making processes. See Biscoe v. Arlington County, supra, 238 U.S.App. D.C. at 217, 738 F.2d at 1363 (quoting *501 Thomas v. Johnson, 295 F.Supp. 1025, 1031 (D.D.C.1968)); see also D.C.Code § 1-361 (1981) (Corporation Counsel shall furnish opinions to Mayor whenever requested to do so). Thus, it is clear that these actions are discretionary in nature and not ministerial. Accordingly, we conclude that the District government is immune from liability for damages that allegedly resulted from the government's actions with respect to the Regulations, and that the trial court's grant of summary judgment was therefore not erroneous.[8]See Urow v. District of Columbia, 114 U.S.App.D.C. 350, 351, 316 F.2d 351, 352, cert. denied, 375 U.S. 826 (1963) (immunity attaches where action complained of involved discretionary, quasi-legislative determination); Cooper v. O'Connor, 69 U.S. App.D.C. 100, 103, 99 F.2d 135, 138 (1938) (immunity attaches where challenge is to alleged erroneous construction and application of the law).[9]
II. WPS
Appellant's remaining claim concerns the liability of WPS, the employer of Robinson and Tate, for damages in connection with Tate's death. The trial court granted WPS' motion for summary judgment on the ground that the exclusive liability provision of the LHWCA limits appellants to their recovery under the Act and precludes them from recovering damages in a tort action.
The LHWCA requires employers to provide compensation to employees who are disabled or killed in the course of their employment irrespective of fault. 33 U.S.C. §§ 901 et seq. (1976). The exclusive liability section of the Act states, in pertinent part:
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, ... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....
LHWCA § 905(a). Thus, the Act "deprives employees and their representatives of the right to pursue common law tort suits, such as wrongful death actions, against their employers or co-workers if the injuries are covered by the Act." Harrington v. Moss, 407 A.2d 658, 660-61 (D.C.1979).
Appellants emphasize that the restriction in § 905(a) does not reach actions where the employer specifically intended to injure the employee.[10]Houston v. Bechtel Associates Professional Corp., supra, 522 F.Supp. at 1096; 2A A. LARSON, supra, § 68.13, at 13-5, and cases cited at n. 11. "Employer," in the context of a corporation, is "a person who is realistically the alter ego of the corporation" and not "merely a foreman, supervisor or manager." 2A A. LARSON, supra, § 68.20, at 13-10. Appellants' theory in the trial court, and their contention on appeal is that while Robinson committed the actual shooting, it was the corporate officials of WPS who with actual, specific, and deliberate intent *502 conspired to have Mr. Tate killed. According to appellants, the corporate hierarchy of WPS was involved in a narcotics ring operating out of the EPA building, and these officers conspired to kill Mr. Tate because Tate had discovered the existence of this operation.
We have examined the pleadings, the record, and in particular the trial court's detailed memorandum and we concur with the trial court's conclusion that these allegations are totally lacking in merit. We agree with the trial court that
upon the basis of the evidence proffered by plaintiffs in support of said allegation, no jury could reasonably conclude that WPS participated in any manner in the killing of Tate.
In sum, appellants have failed to present any proof, other than conclusory allegations and innuendo, which would support a finding that WPS specifically intended to kill appellants' decedent. They have not offered any deposition testimony, affidavits, or other documents which substantiate any of their claims. Thus, we conclude that there are no remaining material facts in dispute with regard to appellants' claims against WPS. In light of appellants' recovery under the LHWCA, they are now precluded from maintaining a suit in tort against WPS, and accordingly, summary judgment was properly entered.
Finding no disputed material issues with respect to appellants' claims against either appellee, and concluding that appellees are entitled to judgment as a matter of law, we affirm the trial court's orders granting summary judgment.
Affirmed.
NOTES
[1] Robinson later was convicted of manslaughter while armed.
[2] The license was issued by the District of Columbia Department of Licenses, Investigations and Inspections following a background investigation of WPS corporate officers and upon certification that the employees of WPS did not have criminal records.
[3] D.C.Code §§ 16-2701, 12-101 (1981).
[4] The Administrator of GSA is responsible for protecting public federal buildings. 40 U.S.C. §§ 318, 318a, 490(a)(4), 490(b) (1982); 41 C.F.R. §§ 101-20.5 et seq. (1984). Moreover, the Administrator is given specific authority to establish a security force for the protection of federal buildings and property. 40 U.S.C. §§ 318b, 318d, 490(a)(4), 490(b) (1982).
[5] As distinguished from federal employees who guard federal buildings. Such employees are clearly not subject to the Regulations. See Regulations, supra, § 1.1(3)(B).
[6] Accordingly, neither Robinson nor Tate underwent a certification check by the District government. We observe that the GSA has its own regulations, which are similar to the District's, for certifying private security officers. Presumably, Robinson and Tate were required to meet the GSA qualifications.
[7] In reviewing a trial court's order granting summary judgment, this court conducts an independent review of the record. Phenix-Georgetown, Inc. v. Chas. H. Tompkins Co., 477 A.2d 215, 221 (D.C.1984); Holland v. Hannan, 456 A.2d 807, 814 (D.C.1983). Our standard of review is the same as the trial court's standard for initially considering a motion for summary judgment. Holland v. Hannan, supra, 456 A.2d at 814. Pursuant to Super.Ct.Civ.R. 56(c) summary judgment is only appropriate when, viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Nader v. de Toledano, 408 A.2d 31, 41 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Willis v. Cheek, 387 A.2d 716, 719 (D.C.1978).
[8] Appellants urge us to examine the merits of the Corporation Counsel's 1975 opinion interpreting the scope of the Regulations. We decline to do so. Our approach is consistent with the reasons underlying the principles of sovereign immunity. The very purpose of the doctrine of sovereign immunity is to protect the government from having to spend significant amounts of time litigating the merits of its policy decisions. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 819-20, 102 S.Ct. 2727, 2739-40, 73 L.Ed.2d 396 (1982); McSurely v. McClellan, 225 U.S.App. D.C. 67, 73-74, 697 F.2d 309, 315-16 (1982).
[9] Appellants also contend that the District government is subject to liability in tort because the government owed a "special duty of care" to appellants' decedent. Because we have resolved, as a threshold matter, that appellants' action against the District is barred by sovereign immunity, we need not address the issue of substantive liability. See Rieser v. District of Columbia, supra, 183 U.S.App.D.C. at 387-90, 563 F.2d at 475.
[10] Appellants acknowledge, as they must, that § 905(a) bars an action alleging mere negligence or even willful, wanton, reckless and unlawful misconduct. Houston v. Bechtel Assoc. Professional Corp., 522 F.Supp. 1094, 1096 (D.D. C.1981); 2A A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 68.13, at 13-5 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265458/ | 200 N.J. Super. 343 (1985)
491 A.2d 742
NEW JERSEY STATE PAROLE BOARD, PLAINTIFF-RESPONDENT,
v.
WINFRED GRAY, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted January 22, 1985.
Decided February 19, 1985.
*345 Before Judges MICHELS, PETRELLA and BAIME.
Joseph Rodriguz, Public Defender, attorney for appellant (Paul Gauer, Designated Counsel, on the letter brief).
Irwin I. Kimmelman, Attorney General of New Jersey, attorney for respondent (James J. Ciancia, Assistant Attorney General, of counsel; Catherine M. Brown, Deputy Attorney General, on the brief).
The opinion of the court was delivered by PETRELLA, J.A.D.
Appellant Winfred Gray had been serving sentences at the Youth Correctional Institution Complex for a 1973 conviction of robbery while armed and for a 1974 conviction of possession of a stolen motor vehicle. His maximum sentence would have expired March 29, 1980.
Gray had been paroled on November 26, 1974, and while still on parole committed another robbery. He was convicted on July 3, 1978 of entering a motor vehicle while armed with the intent to commit a robbery and robbery while armed. He was sentenced to an aggregate of 9 to 13 years at State Prison.
The Youth Correctional Institution Complex Board of Trustees by notice dated November 8, 1978 advised Gray that his parole was being revoked. He was required to serve the balance of his original sentence as required by the Parole Act of 1948. As a result of amendments to the Parole statutes, Gray's parole violation penalty was subsequently reduced to 16 months. Gray was notified by the Board on January 22, 1981 that for setting his parole eligibility date his 16 month term would be aggregated with and made consecutive with the 9 to 13 year sentence he received for his 1978 convictions. See N.J.S.A. 30:4-123.64d. At a September 16, 1981 parole hearing the Board set October 6, 1981 as the date for Gray's parole release. However, when he returned to the Rahway State Prison camp from a work-release furlough on September 26, 1981, Gray's urine sample revealed the presence of morphine. *346 On October 2, 1981 Gray received an institutional infraction for the use of nonprescription drugs. An institutional "courtline" hearing was held on October 5, 1981. The drug use charge was sustained and Gray's penalty was "ten days lock up, 30 days loss of commutation time (suspended 60 days) and 60 days urine monitoring." As a result the Board placed an administrative hold against Gray's October 6, 1981 release date. Gray appealed his infraction to the prison superintendent who modified the penalty to "ten days lock up suspended, loss of 30 days commutation time suspended and 60 days urine monitoring."
A final parole rescission hearing was conducted on November 10, 1981. The hearing officer stated that the purpose of the hearing was not to determine guilt or innocence of the drug use charge because that was considered res judicata. Rather, he was inquiring into whether there were any aggravating or mitigating circumstances which would warrant suspending or rescinding Gray's parole date or setting another parole date. At this hearing Gray's attorney did try to challenge the evidence used to establish the drug-use charge. She contended that the urine sample test was insufficient to establish drug use; that such unreliable data should not jeopardize his release date, and that the maintenance procedure used to protect urine samples from tampering was inadequate.
After the hearing the Board discovered that Gray's original parole eligibility date had been miscalculated because the 16 month penalty for parole violation had not been included in his aggregate sentence. The Board notified Gray that it was rescinding his October 6, 1981 parole date because he had not been eligible for parole consideration at that time. The Board also postponed Gray's parole eligibility term by six months because of the institutional infraction for drug use. Thus, his parole eligibility date was extended 16 months for the parole violation and six months for the institutional infraction. Gray's administrative appeal to the Board was denied. He then appealed out of time to this court, and we granted leave to file nunc pro tunc.
*347 Gray was subsequently released on parole on February 15, 1983. The Public Defender then moved to be relieved as counsel, contending that appellant's release on parole had rendered the parole rescission appeal moot. Although that application was denied, the mootness issue was preserved.
On this appeal the following issues are projected: (1) whether appellant's appeal is moot because he has been released on parole; (2) whether the Board erroneously rescinded appellant's parole by miscalculating his eligibility term, and (3) whether the Board's rescission hearing denied appellant due process.
With respect to the mootness issue, we observe initially that what is involved here is a rescission of a parole eligibility date and a rescheduling thereof rather than revocation of parole. The State in urging mootness, relies on New Jersey State Parole Board v. Boulden, 156 N.J. Super. 494 (App.Div. 1978). There we declared defendant's appeal of revocation of parole moot when he had served the maximum sentence. In such a situation the potential for collateral consequences attributable to parole revocation were considered speculative and remote. Here, Gray's release from custody made any remaining issues insubstantial and even more insignificant than those noted in Boulden. Even if the Board had erred with respect to the extension of Gray's eligibility date, he would not automatically have been entitled to release on the date he became eligible for parole. Regardless of the date he became eligible for parole or was released, the length of his term on parole would remain the same. However, a somewhat different result was reached in Board of Trustees of Youth Correctional Center v. Davis, 147 N.J. Super. 540 (App.Div. 1977). See also New Jersey State Parole Board v. Woupes, 184 N.J. Super. 533, 536 (App.Div. 1981) and State v. Dalonges, 128 N.J. Super. 140, 143 (App.Div. 1974). In Davis we compared a convict's right to appeal parole revocation to his right to appeal the underlying conviction. We are inclined to the view that Boulden is more persuasive when a question of rescission and rescheduling of a *348 parole eligibility date is involved, and we conclude that the issue becomes moot upon an inmate's parole. Hence, the appeal is dismissed as moot.
Nevertheless, we also consider in the alternative the merits of appellant's contentions. Under N.J.S.A. 30:4-123.51h the Board had the power to recalculate defendant's parole eligibility date and to require that the additional sentence on the parole violation be served consecutively to that being served on his convictions. At the time of defendant's sentence it was then the law that absent specific determination by the sentencing judge, the terms of each sentence would be consecutive. State v. Fudali, 113 N.J. Super. 426 (App.Div. 1971); see State v. Grant, 102 N.J. Super. 164, 170-171 (App.Div. 1968). To the extent that dictum in State v. DeMott, 128 N.J. Super. 395, 398 (Law Div. 1974) is to the contrary, we overrule that decision.
The former parole law provision was contained in N.J.S.A. 30:4-123.27 (repealed by L. 1979, c. 441, § 27). When the Penal Code was enacted it included an express provision that parole violation penalties were to be deemed concurrent with criminal penalties, unless the court sentencing the defendant for crimes committed while on parole orders the sentences to run consecutively. N.J.S.A. 2C:44-5c. That provision was amended by L. 1983, c. 462, § 1, effective January 12, 1984, to reverse the presumption and provide that unless expressly otherwise provided, parole violation terms are to run consecutively to the criminal sentences.
Gray argues that N.J.S.A. 30:4-123.52a does not authorize the Board to recalculate his parole eligibility even if it discovers its mistake because that statute allows the Board to increase an inmate's parole eligibility date only for violating institutional rules or engaging in indictable conduct while in custody. His argument is that this does not authorize an increase in parole eligibility not based on bad conduct.
The error in appellant's contention is that the Board was not seeking to penalize him by delaying his original parole *349 eligibility date, but rather was correcting a miscalculation. Because Gray's sentence was presumptively consecutive under the then effective statute, the original parole eligibility date given by the Board was incorrect. Hence, the Board could correct that error at any time, and there was no due process error in so recalculating without prior notice to Gray or affording him a hearing. The miscalculation here did not result in actual rescission of parole eligibility, but merely in a correction of the date and an adjustment to conform to the true terms of his eligibility. Gray could not have obtained an early release because of the Board's error.
We next turn to appellant's argument that he was denied due process because the Board considered his drug use infraction to have been established in the "courtline" hearing. There was no record made and it is unclear exactly what evidence was produced at that hearing. In N.J. State Parole Board v. Woupes, supra, 184 N.J. Super. at 533, it was argued that the inmate had been denied due process by the Board's acceptance of the court line decision as res judicata and using it as the basis for rescission. There we considered the constitutionality of N.J.A.C. 10A:71-2.4(a) which required the Board to consider as res judicata final decisions of departmental officials who adjudicate institutional infractions. Subsection c thereof provides that a Board panel reviewing an institutional infraction for the purpose of rescinding parole "shall consider aggravating and mitigating circumstances relating to the infraction but shall not consider evidence relating to the inmate's guilt or innocence of the commission of the institutional infractions." We agree with the view in Woupes that a Parole Board is not intended as an appeal tribunal to relitigate prison disciplinary hearings. The proper remedy is an appeal to the appropriate tribunal, and in the absence of such an appeal the Board can consider that determination as final.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265461/ | 491 A.2d 1017 (1985)
Richard A. and Caroline L. KINZER
v.
DEGLER CORPORATION and Dale Degler d/b/a Degler's Heating and Air Conditioning.
No. 302-81.
Supreme Court of Vermont.
March 1, 1985.
*1018 Samuel C. FitzPatrick, Montpelier, for plaintiffs-appellants.
Valsangiacomo, Detora & McQuesten, P.C., Barre, for defendants-appellees.
Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
ALLEN, Chief Justice.
This is an appeal from a judgment notwithstanding the verdict (n.o.v.), entered by the Washington Superior Court following a jury verdict in favor of the plaintiffs on the defendant's counterclaim. The judgment n.o.v. is reversed and judgment for plaintiffs is entered on the counterclaim.
Richard and Caroline Kinzer, plaintiffs, contracted with the defendant, Dale Degler, in August, 1977, to have him do the heating and air conditioning work for the Kinzers' "Crystal Palace" project. The Crystal Palace was to be a restaurant and shop complex, housed in a restored building on the Mountain Road in Stowe.
In January, 1978, there was a dispute between Degler and Richard Kinzer concerning the fact that the heating system was not yet working. Kinzer informed Degler that no more payments would be forthcoming until certain progress had been made. Degler replied that unless payment continued to be made as the invoices were presented, he would cease any work. Degler did not do any further work on the project.
The Kinzers subsequently brought suit against Degler personally and Degler Corporation, which was formed by Dale Degler during the period when he was performing under the contract with the Kinzers, for breach of contract. Counterclaims were filed by Degler and his corporation alleging breach of contract. At the close of the Kinzers' case, the court granted a directed verdict for the defendants on the grounds that the Kinzers had failed to prove damages. At the close of the defendants' presentation of their counterclaims, the court directed a verdict in favor of the Kinzers as against the Degler Corporation. Degler's personal claim against the Kinzers was submitted to the jury, which rendered a general verdict in favor of the Kinzers. The court subsequently granted judgment n.o.v. in favor of Degler on an invoice in the amount of $3,457.85. The Kinzers now appeal from that judgment n.o.v.
Degler's counterclaim alleged that the Kinzers breached their contract by their refusal in January, 1978, to pay any further invoices. His damage claims consisted of an invoice submitted to the Kinzers, dated January 3, for work completed and materials delivered, in the amount of $3,457.85; an additional invoice, never submitted, for an additional amount of approximately $700.00; lost profits on the labor of Degler himself and his employees; lost profits on the equipment markup; and legal expenses. The Kinzers' defense was not only that they had not breached the contract, but also that the claimed equipment markups were excessive; that certain work done was not governed by the contract at all; that the recordkeeping of hours worked was insufficient to support the claim; that the estimations of lost profit were speculative; that the attorney's fees were not collection costs, and so not supported by the contract; that Degler's hourly labor charge was excessive; and finally that the Kinzers were entitled to $2,192.00 credit for a freezer unit Degler allegedly agreed to take back.
A motion for judgment n.o.v. raises substantially the same legal questions raised by a motion for directed verdict, and therefore the two motions are treated alike. Perkins v. Factory Point National Bank, 137 Vt. 577, 579, 409 A.2d 578, 579 (1979). In passing upon the propriety of the granting of a motion for judgment n.o.v., V.R. C.P. 50(b), we must view the evidence in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence. The question is whether the result reached by the jury is sound in law on the evidence produced. Hershenson v. Lake Champlain Motors, Inc., 139 Vt. 219, *1019 222, 424 A.2d 1075, 1077 (1981). If there was any evidence fairly and reasonably supporting the nonmoving party's claim, the judgment n.o.v. was improper. Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 312, 449 A.2d 900, 902 (1982).
Degler contends that the Kinzers were foreclosed from proving any offsets to Degler's claim by virtue of the directed verdict granted against the Kinzers on their original claim for breach of contract. That directed verdict did preclude the Kinzers from offsetting Degler's claim with damages alleged to have resulted from a breach of the contract by Degler. However, the offsets alleged as a defense to Degler's claim were not of that nature. The credit for the returned freezer claimed by the Kinzers was not an element of their original damage claim. The same holds true for the Kinzers' claims that the January 3 invoice reflected unauthorized and excessive markups on equipment and unauthorized and excessive hourly labor charges.
Viewing the evidence in this light, there was evidence fairly and reasonably supporting the claim that Degler took excessive markups on equipment provided under the contract; that the Kinzers were entitled to $2,192.00 credit for the freezer unit; and that Degler's labor charges were excessive. Even had there been no evidence fairly and reasonably supporting the Kinzers' claim that they were not liable on the January 3 invoice in the amount of $3,457.85, that finding alone would not support the judgment n.o.v. There was sufficient evidence for the jury to have concluded that there was an offset by at least that amount by the credit for the freezer, by excessive markups for equipment, and by excessive hourly labor charges. Since there was evidence fairly and reasonably supporting the verdict, it must stand.
The judgment n.o.v. is reversed and judgment for plaintiffs is entered on the counterclaim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265462/ | 657 F.Supp. 1102 (1987)
Fannye MARKEL, individually, and in the name and on Behalf of Markel Electric Products, Inc., and all other similarly situated shareholders thereof; and Markel Heater Corporation, Plaintiffs,
v.
SCOVILL MANUFACTURING COMPANY, a corporation; Markel Electric Products, Inc., a corporation; David Markel, Lester M. Markel, Robert H. Jacobson, F.E. Warner, Walter R. Bush, John Washburn, James Rankin, Leonard F. Leganza, John Doe, Richard Roe, being co-conspirators whose identity is presently unknown, Defendants.
CIV-78-269C.
United States District Court, W.D. New York.
April 7, 1987.
*1103 *1104 Raichle, Banning, Weiss & Halpern (Arnold Weiss, of counsel), Buffalo, N.Y., for plaintiffs.
Rogers & Wells (James Ringer, of counsel), New York City, and Moot & Sprague (Richard E. Moot, of counsel), Buffalo, N.Y., for defendants.
CURTIN, Chief Judge.
This action is brought pursuant to the Securities Exchange Act of 1934 (15 U.S.C. §§ 78a et seq.), the Sherman Act (15 U.S.C. §§ 1 et seq.), and the Clayton Act (15 U.S.C. §§ 12 et seq.). There are also pendent state law claims. Pending is a motion by defendants Scovill Manufacturing Company, James Rankin, John Washburn and Leonard F. Leganza, by their attorney, Richard E. Moot of Moot & Sprague. These defendants have moved for dismissal for failure to prosecute or, in the alternative, summary judgment, and sanctions pursuant to Federal Rules of Civil Procedure, Rule 11, and Section 9(c) of the Securities Exchange Act of 1934. Defendants Markel Electric Products, Inc., David Markel, Lester M. Markel, Robert H. Jacobson, F.E. Warner and Walter R. Bush, by their attorney, James M. Ringer of Rogers and Wells, join in these motions.
History and Current Status
Before addressing these motions, a brief history of the case is in order. Markel Electric Products, Inc. was a local, family-owned and operated company for many years. Most of the shareholders were related through blood or marriage. The company manufactured built-in and portable electric resistance heating units for homes and businesses.
In early April of 1978, the shareholders of Markel Electric Products, Inc., with the exception of plaintiff Fannye Markel, her children, and a few others, executed a purchase agreement to sell their stock to Scovill Manufacturing Company. The selling shareholders, including Morris Markel, Fannye Markel's husband, owned more than 95% of the stock.
On or about April 24, 1978, Morris Markel demanded a return of the stock held in his name. The stock was returned to him. On May 22, 1978, 84% of the issued and outstanding shares of Markel Electric were sold to Scovill (see affidavit of David Markel, Item 7).
Plaintiffs filed this action in May of 1978. They sought a preliminary injunction enjoining defendants from accepting any tender offers for Markel Electric Stock, from taking control over shares which had been tendered, and ordering defendants to divest themselves of those shares. After an evidentiary hearing, this court denied their application. Order of June 5, 1978, Item 41.
In May of 1979, defendants sought and obtained a preliminary injunction enjoining plaintiffs and the Markel Heater Corp. from using the trade name "Markel." Item 98, 471 F.Supp. 1244 (W.D.N.Y., 1979). That decision was affirmed by the Second Circuit. 610 F.2d 807 (2d Cir.1979).
On June 20, 1980, Morris Markel and the Morris Markel Trust settled the case and a stipulation of discontinuance was filed. Fannye Markel is the only remaining named individual plaintiff. One of Mrs. Markel's sons, William, settled with the Markel Trust. Apparently, her other children continue to hold their shares. Abraham Weinberg, who had declined to sell his *1105 shares at the time of the Scovill purchase (Item 7), has never appeared in this action.[1] The remaining shareholder plaintiffs hold less than 1.5 percent of the original Markel Electronics stock (Item 138).
Markel Heater Corp. is a local company, headed in part by plaintiff Fannye Markel. According to Mrs. Markel, it was formed in the weeks after the purchase agreement was signed and was incorporated days before the sale of stock was consummated. She stated that Markel Heater was formed to acquire the assets and stock of Markel Electric Products Inc. (see Item 75, ¶¶ 11-13). Once the sale to Scovill was completed, Markel Heater entered into competition with Markel Electric.[2]
Motion to Dismiss for Failure to Prosecute
At the time of their motion for summary judgment, defendants also moved to dismiss for failure to prosecute (Item 143). As defendants point out, very little activity occurred in this case from mid-1980 to until December of 1983. However, dismissal for failure to prosecute is a harsh remedy. It is particularly appropriate in instances of a willful failure to prosecute, such as when a plaintiff fails to complete discovery or disobeys court orders. Lyell Theatre Corp. v. Loews Corp., 91 F.R.D. 97, 99 (W.D.N.Y.1981), aff'd, 682 F.2d 37 (2d Cir.1982).
In this case, plaintiffs were involved in a related action in state court. It was hoped that resolution of the State proceeding would effect a settlement here (see Item # 137). On July 15, 1986, counsel for defendants advised the court that the appraisal proceedings in state court had concluded (Item 152). The decision was rendered in plaintiffs' appraisal proceeding on June 30, 1986. A judge of the New York Supreme Court, County of Erie, found that the negotiations between Markel Electric Products, Inc., and the Scovill Manufacturing Company were conducted at arm's length and that previous attempts to sell the company support the conclusion that $9,680,000 was an adequate representation of its market value (see Item 152). The decision did not change the positions of the parties, and the motion for summary judgment and sanctions was again taken under consideration.
Although I believe plaintiffs in this action certainly should have pursued this case more vigorously, I decline to dismiss for this reason.
Recusal
There has been no motion for recusal in this action. Counsel for plaintiffs raised the issue in letter form only, initially in a letter dated November 21, 1985 (Item 155; see also Items 156 and 158). At that time, due to the large number of cases on my docket, defendants' motion for summary judgment and dismissal had been under consideration for some time. A decision was planned to be filed by the end of the calendar year. I met informally with counsel and decided (despite defendants' opposition) to hold decision on defendants' motion for summary judgment and dismissal pending further settlement negotiations and the possible commencement of the companion case in state court. At plaintiffs' suggestion, any recusal issue was also held.
Settlement efforts failed, and trial on the state appraisal action was underway in state court. On February 11, 1986, I wrote to counsel for plaintiffs to ask for plaintiffs' "final word" on the recusal issue (see Item 149, Exhibit B). Counsel for plaintiffs again responded with a letter, dated February 28, 1986, in which he noted that plaintiff Fannye Markel continues to request recusal (Item 160). In that letter, counsel offered to make a formal motion if directed to do so by the court.
*1106 On March 11, 1986, Richard E. Moot, on behalf of defendants, filed a declaration and brief in opposition to my recusal and in support of his previous motion for summary judgment and sanctions (Items 149 and 150). Mr. Moot pointed out, once again, that plaintiffs had totally failed to comply with the procedural requirements of 28 U.S.C. § 144 in that no motion for recusal or supporting papers were ever filed. He also pointed out, correctly, that any such motion would be untimely, since a motion based upon similar grounds could have been made at an earlier time. In Re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir.1980).
Plaintiffs responded with yet another letter, again offering to prepare a motion for recusal. Counsel for plaintiffs stated that the circumstances in the case at bar "which we have touched on and which can be amplified and specifically detailed in affidavitsare compelling reasons for recusal." (Letter of March 17, 1986, Item 161). Plaintiffs made no further filings. As has been noted, after the resolution of the state court proceedings in late June of 1986, defendants' motion for summary judgment and for sanctions was again submitted for decision.
There are two recusal statutes: 28 U.S.C. § 144 and 28 U.S.C. § 455. There are certain procedural requirements under section 144. The party requesting recusal must make a motion "supported by a written affidavit of facts supporting the claim of bias and a certificate of good faith from counsel of record." Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973).
Counsel for plaintiffs has not complied with the rules under this section. Offers to make a formal motion conditioned upon an order or request from the court are insufficient. This is especially so in this case, in which opposing counsel repeatedly pointed out the deficiencies in plaintiffs' requests for recusal, and the court asked plaintiffs for a "definite answer" on the recusal issue. The procedural requirements of section 144 are clear from the statute and from the case law. Despite many opportunities, counsel for plaintiff did not comply with them.
However, 28 U.S.C. 455 places a court under a continuing obligation to recuse itself sua sponte under certain circumstances. Under section 455(b) a judge must recuse himself if, inter alia, he has personal knowledge of the facts, has a financial interest in the outcome of the proceeding, or has served as a lawyer in the matter at issue. None of the grounds listed in section 455(b) is present in this case. Pursuant to section 455(a) recusal is necessary if a reasonable person would question the court's impartiality.
Under all the circumstances in this case, I do not find that a reasonable person would consider the court to be partial. Several years ago, one of my daughters who was attending college worked part-time for a brief period at the flower shop owned by plaintiff Fannye Markel. I met with counsel for defendants, counsel for plaintiffs, and plaintiff Fannye Markel to discuss this issue, and it was agreed by all that there was no basis for recusal.
Later, flowers for two of my daughters' weddings were purchased from Mrs. Markel's shop. No party made any motions for recusal. It was not until a third daughter married and arrangements were made in the fall of 1985 to purchase wedding flowers from Mrs. Markel's shop that counsel for plaintiff raised the issue. The purchase of wedding flowers from Fannye Markel's shop has no relationship to the issues in the instant action. It is unlikely that a reasonable person would view the court as partial when, earlier in the case, plaintiffs were denied preliminary relief, defendants obtained a preliminary injunction and, by this order, defendants will be granted summary judgment, to which they are clearly entitled. There are no grounds for sua sponte recusal under section 455.
Summary Judgment
In April of 1984, plaintiffs were ordered to "review carefully the causes of action set forth in their latest complaint and drop those which no longer have bearing on the issues now present." (Item 140.) Plaintiffs *1107 accordingly filed a second amended complaint (Item 142).
In their motion for summary judgment, defendants urge that plaintiffs fail to allege, and the evidence adduced through extensive discovery fails to show, that there was any conspiracy by defendants to violate either the antitrust laws or the securities statutes. They also maintain that there is no evidence to support plaintiffs' claims under the Securities Exchange Act or the Antitrust Act, and that the undisputed material facts entitle them to judgment as a matter of law.
After defendants filed their motion for summary judgment and sanctions, the court requested a response from plaintiffs. The only response received from plaintiffs was an affidavit from Fannye Markel (Item 147), which essentially mirrors the amended complaint (Item 142) and points to no evidence to raise a genuine issue of disputed, material fact. For the reasons below, defendants' motion for summary judgment is granted.
A. Securities
Plaintiffs allege violations of sections 10(b), 14(e), 18(a), 20, and 27 of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.[3] (15 U.S.C. § 78a, et seq.)
In order to state a claim for relief under section 10(b) 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, et al., 754 F.2d 57, 61 (2d Cir.1985). Plaintiffs are required to prove all three elements to sustain a cause of action under Section 10(b) and Rule 10b-5. Other sections of the Act raised by plaintiffs also require reliance by the selling shareholders.
Section 14 applies to all proxy solicitations, whether or not in connection with a purchase or sale. SEC v. National Securities Inc., 393 U.S. 453, 468, 89 S.Ct. 564, 572, 21 L.Ed.2d 668 (1969). To prevail under § 14(e), plaintiffs must show that, in connection with a tender offer, there was a misrepresentation (or omission) on which the target shareholders relied. Lewis v. McGraw, 619 F.2d 192, 195 (2d Cir.1980), cert. denied, 449 U.S. 951, 101 S.Ct. 354, 66 L.Ed.2d 214 (1980). These requirements track those of § 10(b) and Rule 10(b)(5). Section 18(a) of the Act also requires reliance by the selling shareholders as would, based on the nature of plaintiff's claims, section 20 of the Act.
Defendants urge that plaintiffs have shown none of the requisite elements. I find that plaintiffs have failed to adduce evidence of reliance by the selling shareholders on any alleged misrepresentations or omissions. In light of this finding, there is no need to determine whether defendants actually misrepresented any material facts or made material omissions since, even if they had, the selling shareholders did not rely on them in making the decision to sell.
It is clear that neither Mrs. Markel nor other non-selling shareholders could have relied on any misrepresentations or omissions by defendants. They never sold their shares to Scovill. Nor could Markel Heater Corporation have so relied (assuming it has standing), since it was formed after the purchase agreement was signed. Mrs. Markel's claim is essentially that the selling shareholders were defrauded by Scovill and the named defendants, including former Markel Electric officers. This would place her and the other non-selling shareholders in the position of "forced sellers." Their only option, in effect, was to sell to Scovill or to pursue their right to an appraisal proceeding in state court, as they eventually did (see generally, Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir. 1967), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967) and Mayer v. Oil *1108 Field Systems Corp., 721 F.2d 59, 65 (2d Cir.1983)).[4]
Plaintiffs allege that the defendants made material misrepresentations of fact. Particularly, plaintiffs claim that defendants made several misrepresentations in the March 1978 tender offer (see second amended complaint, Item # 142, especially ¶ 5P). In their response to the motion for summary judgment, plaintiffs cite no evidence in the record in support of their claims that material misrepresentations were made to the selling shareholders. Nor have plaintiffs pointed to evidence to show that any selling shareholders relied on any alleged representations that Morris Markel could not obtain financing to buy their stock (Item 142, ¶ 5H). Furthermore, even if there were misrepresentations, plaintiffs who bear the burden of proof on this point, point to no evidence to show that any selling shareholders relied on them.
The crux of plaintiffs' complaint seems to be that defendants misstated the value of the company by omitting certain assets from the recorded book value of Markel Electric and by hiding a capital surplus and excess cash (Item 142, ¶ 2, I and J).[5] These omissions, plaintiffs claim, resulted in the selling shareholders agreeing to sell their shares for substantially less than their value. Plaintiffs also allege that defendants withheld the "usual limited and non-confidential financial data of Markel Electric" from plaintiffs and Morris Markel (Item 142, ¶ 2E).[6]
In cases of alleged misrepresentations, plaintiffs must establish reliance. However, when an omission is at issue, the burden of proving reliance is removed from plaintiffs. Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-154, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972). An omission of material fact, in and of itself, has been held sufficient to establish the requisite element of reliance or causation. Id. at 154, 92 S.Ct. at 1472.
Ute, however, created only a presumption of reliance in the case of omissions. Defendant may rebut this presumption by affirmative proof of non-reliance. "If defendant can prove that plaintiff's decision would not have been affected even if defendant had disclosed the omitted facts, then plaintiff's recovery is barred." Rifkin v. Crow, 574 F.2d 256, 262 (5th Cir. 1978) (Rule 10b-5). See also Schwarz v. Folloder, 767 F.2d 125, 132 n. 10 (5th Cir. 1985). "We therefore presume reliance only `where it is logical' to do so." Lewis v. McGraw, 619 F.2d at 195 (cite omitted). (Referring to § 14(e)).
In this case, defendants have offered strong proof that no alleged omission caused the shareholders to decide to sell their stock. The selling shareholders submitted an affidavit to this court stating that they had read the complaint and were fully familiar with its allegations. Each stated, in similar language:
I wish to state to the Court that I am satisfied with the terms of the sale of my stock to Scovill Manufacturing Company and I have no desire to change or cancel my sale, and I am satisfied with the entire transaction which I consider to be fair in all respects. Furthermore, after having read the complaint in the above-captioned matter, I do not wish to be included in any class of plaintiffs which *1109 counsel for the plaintiff purports to represent.
Affidavit of Betty Markel Jacobson. Sworn to May 31, 1978 (Item 16, ¶ 3).
The shareholders, of course, had read the original complaint and not the second amended complaint. The original complaint also contained allegations that the book value of Markel Electric was substantially below its actual value because certain assets were unrecorded (Item 1, ¶ 18 and Item 3, ¶ 16(E)). It also alleged that defendants wrongfully withheld "financial data or statements" (Item 1, ¶ 20S; Item 3, ¶ 19(K)), and that defendants misrepresented Morris Markel's ability to purchase and operate the business (Item 1, ¶ 20Q; and, generally, Item 3, ¶ 19(F)).
With all these allegations in mind, the selling shareholders swore, less than two months after signing the agreement and 10 days after the purchase closed, that they had no wish to change or cancel their sales. Throughout this long litigation, no selling shareholder has sought to intervene or in any way supported plaintiffs' cause. This is sufficient to rebut any presumption of reliance. Despite opportunity for extensive discovery, plaintiffs can point to no evidence to indicate otherwise. Because plaintiffs cannot show the requisite reliance, the court need not consider whether plaintiffs have presented facts to support an inference of an intent to deceive, manipulate or defraud. Wechsler v. Steinberg, 733 F.2d 1054, 1059 (2d Cir.1984).
Summary judgment is granted to defendants on plaintiffs' cause of action under the Securities Exchange Act.
B. Antitrust
Plaintiffs have also alleged violations of the Sherman Act, § 1 and § 2, and the Clayton Act, § 7. In their amended complaint, plaintiffs claimed that all defendants entered into a conspiracy to enable defendant Scovill to monopolize and restrain business in various parts of the United States, to the exclusion of plaintiffs, Morris Markel, Markel Electric and Markel Heater (Item 142, ¶ 4H). They also urged, in the amended complaint, that Scovill sought to acquire a market for its Nutone Division and sought to eliminate Markel Heater and Markel Electric as part of this goal (Item 142, p. 19).
Since both Scovill and Markel Electric sell electric heaters, the acquisition of Markel by Scovill was a horizontal merger. More than simple elimination of competition between the two merged firms must be shown:
An economic arrangement between companies performing similar functions in the production of sale comparable goods or services is characterized as "horizontal." The effect on competition of such an arrangement depends, of course, upon its character and scope. Thus, its validity in the face of the antitrust laws will depend upon such factors as: the relative size and number of the parties to the arrangement; whether it allocates shares of the market among the parties; whether it fixes prices at which the parties will sell their product; or whether it absorbs or insulates competitors. Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated. Section 7 of the Clayton Act, prior to its amendment, focused upon this aspect of horizontal combinations by prescribing acquisitions which might result in a lessening of competition between the acquiring and the acquired companies. The 1950 amendments made plain Congress' intent that the validity of such combinations was to be gauged on a broader scale: their effect on competition generally in an economically significant market.
Brown Shoe Co. v. United States, 370 U.S. 294, 334-35, 82 S.Ct. 1502, 1529, 8 L.Ed.2d 510 (1962). In order to assess the effect on competition generally, a court must consider the product market, the geographic market and the probable effect on competition. Id. at 336-339, 82 S.Ct. at 1529-1532.
In response to defendants' motion for summary judgment, plaintiffs point to *1110 no evidence to indicate that Scovill's acquisition of Markel Electric Company substantially reduced competition in the market for electric heaters either locally or throughout the country, in violation of the Clayton Act. Nor do plaintiffs refer to any evidence indicating that defendants conduct tended to create a monopoly under the Sherman Act. In fact, according to Fannye Markel's affidavit, Markel Heater Company continues to operate locally, while Scovill has discontinued its Markel Electric operations in Buffalo (Item 147, ¶ 10). In that affidavit, plaintiffs simply repeat their allegations of anticompetitive effect.
Plaintiffs have also failed, in response to defendants' motion for summary judgment, to come forward with any evidence to indicate that defendants conspired to violate the antitrust laws. In her affidavit in opposition to defendants' summary judgment motion, Fannye Markel stated:
No reason or motive can be ascribed to defendants' refusal to accept a higher cash offer from plaintiffs than from Scovill [or to] defendants wrongful interference with plaintiffs' financing, excepting only an improper refusal to deal with plaintiffs in order to restrain trade....
(Item 147, ¶ 12).
Again, however, plaintiffs point to no evidence to support this inference. There may have been many reasons why defendants chose to sell to Scovill despite the fact that plaintiffs might have made a better offer. David Markel, former president of Markel Electric Products, has stated that the sale to Scovill was consummated with an eye towards preserving the jobs of 500 workers (Item 7, ¶ 8).
In defending against a motion for summary judgment, plaintiffs must do more than merely assert that defendants entered a conspiracy to violate the antitrust laws. Plaintiffs must come forward with evidence to support the inferences they seek to draw from the facts in the record. Plaintiffs have failed to do so, although extensive discovery has been completed. Summary judgment is granted to defendants on plaintiffs' antitrust count.
C. Common Law Claims
In the third count of their second amended complaint, plaintiffs raise a myriad of common law tort claims. Since the federal claims have been dismissed, the court must, in its discretion, determine whether jurisdiction should be maintained over plaintiffs' pendent claims. Mayer v. Oil Field Systems Corp., 803 F.2d 749 (2d Cir. 1986).[7]
"Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). If the federal claims are unsubstantial or meritless, a court should not retain jurisdiction over the state law claims. Dunton v. County of Suffolk, 729 F.2d 903, 910 (2d Cir.1984).
In this action, any common law claims arose out of the same common nucleus of operative facts as did the federal claims. However, judicial economy, convenience and fairness to the litigants would not be furthered by this court maintaining jurisdiction. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. This is not a case which would be tried piecemeal if the state law claims were dismissed. The federal claims have been dismissed on the merits, and the common law claims are all that remain.[8]
*1111 Finally, there is no unfairness to plaintiffs in dismissing their common law claims listed under their third count. The emphasis in this action has been on plaintiffs' causes of action under federal law, particularly the Securities Exchange Act of 1934. The third count of plaintiffs' amended complaint is broad-ranging and imprecise, and plaintiffs make no attempt to set out the relevant legal standards and point to disputed issues of material fact in response to defendants' motion for summary judgment.[9]
The third count of plaintiffs' amended complaint, asserting common law claims, is dismissed.
Defendants' Motion for Sanctions
Defendants have also moved for attorney fees pursuant to Rule 11 of the Federal Rules of Civil Procedure. Sanctions must be imposed against an attorney and/or his client when a pleading, motion, or other paper has been interposed for an improper purpose. Sanctions must also be levied when, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir.1985).
Keeping in mind the professional and economic impact an award of sanctions may have upon an attorney, courts must take care to ensure that due process is afforded to an attorney and/or party facing sanctions. Oliveri v. Thompson, 803 F.2d 1265, 1280 (2d Cir.1986). The advisory notes to Rule 11 point out that the time when Rule 11 sanctions are to be imposed and the format to be followed is in the discretion of the district court judge. It cautions, however, that the procedure invoked must comport with due process. "This does not mean, necessarily, that an evidentiary hearing must be held. At a minimum, however, notice and an opportunity to be heard is required." Oliveri, 803 F.2d at 1280.
Plaintiffs and their attorney were given more than adequate notice that defendants sought Rule 11 sanctions, including attorney fees. After plaintiffs filed their amended complaint (Item 142), defendants moved for summary judgment, dismissal, and sanctions (Item 143). The motion cited Rule 11 in the paragraph requesting sanctions. It was accompanied by a memorandum of law, part of which was devoted to a discussion of the legal authority for imposing Rule 11 sanctions (Item 144, pp. 11-14).
After this court directed plaintiffs to respond to defendants' motion, Mrs. Markel's affidavit was filed (Item 147). Her affidavit generally opposed defendants' motion for summary judgment, dismissal, and sanctions, but made no explicit reference to the issue of sanctions or to Rule 11. No accompanying brief was filed.
After counsel for plaintiffs raised the issue of recusal in letter form, Richard Moot filed a declaration in opposition to recusal and in further support of defendants' outstanding motion for summary judgment, dismissal, and sanctions (Item 149). That declaration again cited Rule 11 and was accompanied by a brief in opposition, which directed plaintiffs and their counsel to Eastway Construction Corp. v. City of New York, 762 F.2d 243 (2d Cir. 1985) (Item 150). Two further declarations were filed by Mr. Moot, both seeking sanctions (Items 151 and 153).
In view of this history, I am satisfied that plaintiffs and their counsel had adequate notice that Rule 11 sanctions might be imposed and that they had ample opportunity to be heard on the issue. A hearing would do nothing more than cause further *1112 needless delay. Plaintiffs and their counsel have been afforded due process.
Defendants argue that this action was baseless when filed and that plaintiffs have repeatedly caused delays throughout this litigation. However, at the time this suit was filed, a competent attorney could have reasonably believed that it was well founded factually and legally. Rule 11 sanctions must not be used in a way which would chill creativity or prevent the bringing of claims which appear colorable at the outset of litigation. See Eastway, 762 F.2d at 254, and Oliveri, 803 F.2d at 1275. I also find that the action was not brought for any improper purpose.
However, there came a point in this action in which plaintiffs' continuance of the action was unjustified. Lane v. Sotheby Parke, 758 F.2d 71, 73 (2d Cir.1985); see also Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1978). From June of 1980, when Morris Markel and the Morris Markel Trust settled with defendants, until December of 1983, there was only sporadic activity in this case. On December 1, 1983, I issued an order to show cause why the action should not be dismissed for failure to prosecute (Item 136). Counsel for plaintiff filed an opposing affidavit advising that discovery was completed (Item 137), and plaintiffs were permitted to continue the action.
On April 6, 1984, plaintiffs were directed to carefully review the causes of action in their latest amended complaint and drop those which no longer had any bearing on the case. Plaintiffs were given an opportunity to file another amended complaint, and did so on July 6, 1984 (Item 142). The second amended complaint was signed by Arnold Weiss, counsel for plaintiffs (Item 142).
Defendants then filed the motion for summary judgment and sanctions. As was noted, plaintiffs' response in opposition to the motion was an affidavit from plaintiff Fannye Markel (Item 142). There was no accompanying brief or citation to legal authority. Mrs. Markel's affidavit repeated the allegations in the amended complaint. Although discovery had been completed, plaintiffs pointed to no specific evidence in support of their claims.
I find that, in filing the amended complaint on July 6, 1984, and the affidavit in opposition to the motion for summary judgment on November 7, 1984, plaintiffs and their counsel violated Rule 11. When the amended complaint was filed, the litigation had been going on for six years. Discovery was completed. The court ordered plaintiffs to carefully review and revise their complaint. It is clear that, at the time the amended complaint was filed, it was not well grounded in fact and/or law. It served to protract what had become a meritless action.
Furthermore, plaintiff Fannye Markel's affidavit opposing summary judgment was patently insufficient for the reasons discussed above. In addition, the court notes that Mrs. Markel's affidavit was signed only by her, with no covering affidavit or statement signed by her attorney. This omission is in itself a violation of Rule 11, which provides that "[e]very pleading, motion, and other paper of a party represented by an attorney shall be signed" by the attorney. Oliveri, 803 F.2d at 1274.
As a result of plaintiffs and their counsel filing the second amended complaint and an affidavit in opposition to defendants' motion for summary judgment, all in violation of Rule 11, this action was needlessly protracted. Defendants are awarded attorney fees and expenses from the date the second amended complaint was filed, July 6, 1984, through the date of this order. See generally, Bartel Dental Books Co. v. Schultz, 786 F.2d 486, 490 (2d Cir.1986).[10]
*1113 Counsel for defendants shall file an appropriate affidavit setting forth hours, rates, and expenses on or before May 5, 1987. Both plaintiffs and counsel shall be permitted to file objections, which shall be accomplished on or before May 26, 1987. In addition to setting the amount, it must also be determined whether plaintiffs, their counsel, or both shall pay the sanction. Rule 11 provides that either the attorney and/or the client shall be responsible for sanctions. In this case, it would clearly be inappropriate to place the entire burden on plaintiff Fannye Markel, since legal knowledge was involved. What percentage should be allocated to plaintiffs, if any, must be determined. This case is referred to United States Magistrate Edmund F. Maxwell for his report and recommendations on these issues, pursuant to 28 U.S.C. § 636.
Finally, plaintiffs request that the preliminary injunction issued June 25, 1979 (471 F.Supp. 1244) be rescinded (Item 147, ¶ 20). That injunction, in brief, restrained plaintiffs from using the word "Markel" (or even the initials "MH") as any part of a trademark or service mark pending resolution of this action. Since defendant Scovill has, according to plaintiffs, discontinued Markel Electric's operations in Buffalo, the court sees no reason for making the injunction permanent, nor have defendants requested that it do so. Unless objections are heard from defendants on or before May 5, 1987, the preliminary injunction shall be deemed vacated.
Defendants' motion for summary judgment is granted on plaintiffs' causes of action in federal law. Plaintiffs' common law claims are dismissed. Defendants' motion for attorney fees is granted solely for the period beginning July 6, 1984, to the date of this order, consistent with the above. The assessment and apportionment of fees is referred to United States Magistrate Edmund F. Maxwell for his report and recommendation, pursuant to 28 U.S.C. § 636. The preliminary injunction issued June 25, 1979, shall be deemed vacated unless objection is heard on or before May 5, 1987.
So ordered.
NOTES
[1] According to a footnote in defendants' brief, Abraham Weinberg sold his shares in January of 1979 (Item 144, n. 4). However, there is no citation to any point in the record to confirm this.
[2] The court notes that the status of Markel Heater Corporation as a plaintiff in this case is uncertain, since defendants allege, and plaintiffs do not dispute, that the corporation was paid approximately $200,000 in connection with the Morris Markel settlement. However, there is no stipulation of discontinuance in the file.
[3] Since Markel Heater Corporation is neither a seller nor a purchaser, it has no standing to sue under section 10(b) or Rule 10(b)-5 of the Securities Act. Blue Chip Stamps, et al. v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975).
[4] If Mrs. Markel and the other, non-selling shareholders were not "forced sellers" under Vine, supra, they would have no standing to sue under section 10(b), since they neither sold nor purchased shares. Blue Chip, supra.
[5] Defendants dispute the contention that any assets were hidden from the shareholders. According to defendants, the asset tally depends upon the method of accounting selected by the firm. They urge that, since the methods of accounting were described in the financial statements, there was no misrepresentation.
However, since the court finds no reliance by the selling shareholders, there is no need to reach the issue of whether any material misrepresentations or omissions were made.
[6] The court notes that, as a highly placed officer in the company, Morris Markel had access to company records. In response to the motion for summary judgment, plaintiffs have pointed to no evidence that any financial statements were kept from Morris Markel. Furthermore, such records were "non-confidential." As I found in my June 2, 1978, order, no selling shareholder requested the financial statements.
[7] The court notes that plaintiffs raise diversity of citizenship as a ground for jurisdiction in their amended complaint. As a general rule, complete diversity must exist at the time the complaint is filed. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70. Four of the individual defendants, David Markel, Lester M. Markel, Robert H. Jacobson, and F.E. Warner resided in New York State when the complaint was filed. Since plaintiffs resided in the district and Markel Heater is a New York State corporation, there is not complete diversity, and so no diversity jurisdiction.
[8] In addition, it appears that plaintiffs would not be prejudiced if their state claims were dismissed. Because their common law claims are not being terminated by voluntary dismissal, failure to prosecute, or judgment on the merits, plaintiffs may sue in state court within six months of the date of this decision. N.Y.Civ. Prac.Law § 205(a), Dunton, 729 F.2d at 911. Plaintiffs may make use of the discovery in this case in state court. (This assumes, of course, that there is no res judicata effect flowing from plaintiffs' prior appraisal action in state court.)
[9] In dismissing plaintiffs' common law claims, the court also takes into account the New York State Supreme Court Judge's findings in the appraisal proceeding. He found that the negotiations for the company were conducted at arm's length and that the sales price was fair (see attachment to Item 152, copy of state court order, pp. 5-6).
[10] Since plaintiffs became liable for defendants' attorney fees and expenses as of July 6, 1984, there is no need to review each docket entry individually. Nonetheless, the court notes that plaintiffs' counsel sent several letters addressing the issue of recusal. It is clear from its language that Rule 11 applies to more than pleadings. The court has not found any authority, however, as to whether letters constitute "other papers" within the scope of the rule. The term "other papers" in its companion context of Rule 7 includes "affidavits, depositions, written notices, appearances, demands offers and the like." Moore's Federal Practice, Vol. 2A, pp. 7-21 (1984). In this case, counsel for plaintiffs had ample notice and opportunity to file an appropriate motion. And, in fact, his letters were effectively treated as a motion by defendants. Counsel for plaintiffs cannot avoid the requirements of Rule 11 by filing letters. Under the circumstances of this case, the letters signed by counsel for plaintiffs constituted "other papers" within Rule 11. In light of the untimely nature of the request and counsel's failure to make a formal motion despite repeated warning, I find that the letters were interposed for the purpose of delay, in violation of Rule 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265464/ | 491 A.2d 988 (1985)
Celma G. GREENWALD et al.
v.
SELYA & IANNUCCILLO, INC. et al.
No. 83-228-Appeal.
Supreme Court of Rhode Island.
April 25, 1985.
Reargument Denied May 31, 1985.
Harold H. Winsten, Richard D. Boriskin, Bruce Hodge, Feiner & Winsten, Providence, for plaintiffs.
Anthony G. Iannuccillo, Iannuccillo & Hines, Inc., Providence, for defendants.
OPINION
MURRAY, Justice.
This is the plaintiffs' appeal from the entry of partial summary judgment in the defendants' favor pursuant to Rule 56(f) of the Superior Court Rules of Civil Procedure. Judgment was entered on March 17, 1983, and an appeal was filed by the plaintiffs on April 4, 1983.
The plaintiffs, Celma G. Greenwald and William J. Trambukis, are co-executors of the will of Martin L. Greenwald, and Celma C. Greenwald is the testator's widow suing in her individual capacity. The defendants are the professional corporation of Selya & Iannuccillo, Inc., Restoration Realty Associates, *989 a co-partnership, and Bruce M. Selya and Anthony G. Iannuccillo in their individual capacities. Restoration Realty Associates (hereinafter Restoration) is a co-partnership that was formed in June of 1977 by Bruce M. Selya, Anthony G. Iannuccillo, and Martin L. Greenwald for purposes of ownership and control of real estate located in Providence, Rhode Island.
The dispute in the instant case involves an alleged breach of the terms of the partnership agreement of Restoration regarding the deceased partner's interest upon death. The relevant language in the partnership agreement provides for the following:
Article 20: "Upon the death of a partner, the partnership shall purchase and the estate of a deceased partner shall sell deceased partner's entire interest in the partnership * * *."
Article 22: "[U]pon the death of a partner, the surviving partners shall have the option * * * whether or not to continue the partnership business * * * and this, notwithstanding any other provision hereof."
A third relevant section, article 18, provides that the agreement is "binding upon, and shall inure to the benefit of each of the parties hereto and upon their respective heirs, executors, administrators, legal representatives and assigns."
The death of the co-partner, Martin L. Greenwald, occurred on February 18, 1980. The two surviving partners, in accordance with article 20 of the agreement, offered to purchase the deceased partner's entire interest in Restoration for a sum to have been determined in accordance with the terms set out in the agreement. However, the executors of the Greenwald estate refused to sell the interest in the partnership and commenced this suit instead. The surviving partners purport to have been, and remain to date, ready, willing, and able to comply with article 20 of the partnership agreement. It is clear that article 20 is the controlling provision in the event of death of a co-partner, and if the option under article 22 is not exercised (as in the instant case), article 20 governs.
There are two issues presented to us on appeal. The first issue is (1) whether the trial justice erred in not allowing plaintiffs to conduct discovery prior to ruling on defendant's motion for partial summary judgment and (2) whether the trial justice erred in granting partial summary judgment.
The plaintiffs assert that merely twelve days subsequent to the trial justice's grant of a continuance to plaintiffs, he inconsistently granted defendants' motion for partial summary judgment, which resulted in impeding plaintiffs' discovery. Furthermore, plaintiffs claim that without proper discovery, they could not present facts sufficient to oppose defendants' motion for partial summary judgment. Thus, they argue now that the trial justice should have refrained from ruling on the motion until they could conduct proper discovery.
It is a well-established principle that discovery matters are entrusted to a trial justice's discretion. Castle v. Sherburne Corp., 141 Vt. 157, 163, 446 A.2d 350, 353 (1982). In addition, Rule 56(f) clearly reflects this general principle in its employment of the word "may" regarding the court's option to permit discovery or to entertain or refuse an application for summary judgment.
The trial justice acted well within his discretion in granting defendants' motion for partial summary judgment and in denying plaintiffs' discovery request. Since he determined that the relevant language in the partnership agreement was clear and unambiguous, he did not see the need to resort to other means of interpretation. It is a common principle that in situations in which the language of a contractual agreement is plain and unambiguous, its meaning should be determined without reference to extrinsic facts or aids. See Chemical Construction Corp. v. Continental Engineering, Ltd., 407 F.2d 989 (5th Cir.1969).
*990 When there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment properly lies. However, the stated purpose of summary-judgment analysis is issue finding, not issue determination. Manish v. Potvin, R.I., 472 A.2d 1220, 1223 (1984); Saltzman v. Atlantic Realty Co., R.I., 434 A.2d 1343, 1344-45 (1981). Applying this standard to the instant facts, we find it clear that the trial justice could easily have concluded that no genuine issues of material fact existed in light of the unambiguous nature of the relevant provisions in the partnership agreement. Upon review, this court uses the same standard as the trial court regarding summary judgment. Since plaintiffs merely stated conclusionary statements in their affidavit in opposition to defendants' motion and since the relevant terms of the partnership agreement are clear and unambiguous, we conclude that its interpretation did not require extrinsic evidence for purposes of clarification.
The second issue presented is whether the trial justice erred in denying plaintiffs' motion to compel production of the partnership books and records.
The plaintiffs argue that relevant authority states that business records kept in the ordinary course of business are discoverable and that G.L. 1956 (1969 Reenactment) § 7-12-3 mandates that the administrator of the estate of a partner may enter upon the premises to examine the books of a partnership.
We conclude that although plaintiffs' assertions may be accurate legal assertions, they do not justify or mandate production of these specific records in the instant factual context. Pursuant to statutory and case law, matters of discovery are entrusted to the sound discretion of the trial court. In addition, discoverable material must be both relevant and nonprivileged. Rules 26(b)(1) and 34. Furthermore, plaintiffs did not bring an action seeking an accounting; they brought a contract action. It was within the trial justice's discretion to conclude that the partnership books were irrelevant to the contract action brought.
We conclude that the trial justice was justified in all of his actions in light of the clear and unambiguous nature of the controlling articles contained in the partnership agreement regarding a deceased partner's interests. Furthermore, the plaintiffs' affidavit in opposition to the defendants' motion for summary judgment did not contain any statement of disputed fact relevant to the enforceability of the partnership agreement.
We affirm the judgment of the trial justice. The plaintiffs' appeal is therefore denied and dismissed.
WEISBERGER, J., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265488/ | 163 Cal.App.4th 1314 (2008)
In re RED LIGHT PHOTO ENFORCEMENT CASES.
No. D048882.
Court of Appeals of California, Fourth District, Division One.
June 13, 2008.
*1318 Lerach Coughlin Stoia Geller Rudman & Robbins, Coughlin Stoia Geller Rudman & Robbins, Timothy G. Blood, Pamela M. Parker and Kevin K. Green for Plaintiffs and Appellants C.L. Trustees, Patricia Yates, Christine Stankus, Mark Glickman, Christine Ballon, Heather Buys, Jerrold Cook and Richard Yells.
Sullivan, Hill, Lewin, Rez & Engel and Brian L. Burchett for Plaintiffs and Appellants Mark Glickman, Christine Ballon and Heather Buys.
Wingert Grebing Brubaker & Goodwin, Charles R. Grebing, Eric R. Deitz; Michael Fremont Law Office and Michael J. Fremont for Plaintiffs and Appellants Jerrold Cook and Richard Yells.
Eugene G. Iredale, Douglas S. Gilliland; Law Offices of Arthur F. Tait III & Associates and Arthur F. Tait III for Plaintiffs and Appellants C.L. Trustees, Patricia Yates and Christine Stankus.
Trutanich Michel, C. D. Michel, Glenn S. McRoberts and Thomas E. Maciejewski for Plaintiffs and Appellants Michel T. Leonte and Richard H. Best.
Ingerson & Associates and Gregory M. Ingerson for Farid Fatoorechi as Amicus Curiae on behalf of Plaintiffs and Appellants.
O'Melveny & Myers, B. Boyd Hight, James P. Jenal, James P. Kidder; McKenna Long & Aldridge, Robert J. Lauchlan, Jr., Ross H. Hyslop and Jim
*1319 McNeill for Defendants and Respondents ACS State and Local Solutions, Inc., Affiliated Computer Services, Inc., and PRWT.
Jenkins & Hogin, Michael Jenkins, Gregg Kovacevich and John C. Cotti for Defendant and Respondent City of West Hollywood.
Dennis J. Herrera, City Attorney (San Francisco), Burk E. Delventhal and Vince Chhabria, Deputy City Attorneys, for League of California Cities and City and County of San Francisco as Amici Curiae on behalf of Defendants and Respondents.
OPINION
McCONNELL, P. J.
In 1995 the Legislature added section 21455.5 to the Vehicle Code, which authorizes municipalities to enforce red light violations through the use of automated traffic enforcement systems. (Veh. Code, § 21455.5, subd. (a).) Plaintiff in one of five coordinated cases that challenged the systems contends the trial court erred by granting the defendant city's motion for summary judgment on the ground that as a matter of law his taxpayer waste cause of action and petition for writ of mandate lack merit.[1] We find no error, as red light photo enforcement is not wasteful or illegal, and the city has no duty to grant the type of writ relief sought, e.g., the overturning of drivers' convictions for running red lights and the refund of their fines and bail forfeitures.
Plaintiffs in the other cases contend the court erred by finding after a bench trial that contingency fee contracts municipalities entered into with private contractors for support services for the automated traffic enforcement systems were not void as against public policy. We agree with the court's assessment that the legal opinions on which plaintiffs rely are distinguishable, and the contracts did not "`tend[] ... to prevent or impede the due course of justice'" (Wilhelm v. Rush (1937) 18 Cal.App.2d 366, 370 [63 P.2d 1158] (Wilhelm)), as the municipalities retained control over the systems and the prosecutorial function. We affirm the judgment for defendants.
*1320 FACTUAL AND PROCEDURAL BACKGROUND
1. Contracts
Numerous cities entered into contracts with private contractors, including Lockheed Martin IMS and its successors in interest, Affiliated Computer Services, Inc., and ACS State and Local Solutions (collectively ACS), to provide support services for the operation of automated traffic enforcement systems. ACS's systems use inductive sensor loops imbedded in the pavement of intersections, which when driven over send signals to cameras mounted on poles. "For a violation to be recorded, three conditions must be satisfiedfirst, that the traffic signal display facing the motorist is red; second, that the pre-determined delay or grace time (for example, 0.3 seconds) has expired; and third, that the vehicle speed crossing from the first loop to the second loop is greater tha[n] a pre-determined minimum speed threshold (for example, 12 or 15 mph)."
ACS's services under the contracts included assisting cities in selecting intersections to monitor; installing, maintaining and servicing equipment; collecting and processing film; reviewing film images twice and determining whether they met cities' screening criteria for the issuance of citations, and if so, obtaining information on vehicle owners from the Department of Motor Vehicles (DMV); electronically transmitting records to the cities' police departments for approval or disapproval of the issuance of citations; mailing approved citations to offenders; communicating with the public, and providing expert testimony in contested cases on the technical aspects of red light photo enforcement.
The contracts had one of three fee arrangements: a fixed monthly amount, fees contingent on the number of citations paid per month, and a hybrid of fixed and contingency fees. The contingency fees were of varying amounts per citation, such as $60 or $70.
2. Lawsuits
This case involves five actions challenging the legality of the contingency fee contracts, which were coordinated and assigned to the San Diego County Superior Court. Among plaintiffs' theories is that the contingency fee contracts were against public policy and void because they raised inherent conflicts of interest and had the potential to cause corruption. Plaintiffs do not challenge the use of automated traffic enforcement systems per se, the accuracy of the systems or the fixed rate contracts. The operative complaints are as follows.
In June 2001 Mark Glickman and Christine Ballon filed a first amended complaint against the City of San Diego and ACS for declaratory and *1321 injunctive relief and unjust enrichment, and in a representative capacity against ACS for violation of California's unfair competition law (UCL; Bus. & Prof. Code, § 17200) (Glickman action). The complaint alleged Glickman and Ballon were cited for running red lights, Glickman forfeited a $271 bail and attended traffic school, after which the City of San Diego dismissed the charge, and Ballon pleaded guilty to the offense and paid a $271 fine.
In December 2001 C.L. Trustees, a family trust, Patricia Yates and Ben Coleman filed a first amended complaint against ACS as a proposed class action (C.L. Trustees action). The complaint contained causes of action for violation of the UCL, unjust enrichment, and money had and received.
In October 2002 Jerrold Cook and Richard Mark Yells filed a third amended complaint, also a proposed class action, against the City of San Diego and other governmental parties and ACS (Cook action). The complaint included a cause of action against ACS for violation of the UCL, and causes of action against all defendants for unjust enrichment, and declaratory and injunctive relief.
In May 2005 Heather Buys filed a second amended complaint against the City and County of San Francisco and other governmental parties and ACS for declaratory and injunctive relief, unjust enrichment and constructive trust, and in a representative capacity against ACS for violation of the UCL (Buys action).[2] The second amended complaint also included a petition for writ of mandate.
In June 2005 Michael Leonte and Richard Best filed a third amended complaint against the City of West Hollywood, arising out of its contract with ACS, for injunctive and declaratory relief, unjust enrichment and the imposition of a constructive trust, and taxpayer waste under Code of Civil Procedure section 526a (Leonte action). Plaintiffs also petitioned for a writ of mandate.[3]
*1322 The complaints generally prayed for an order declaring the automated traffic enforcement systems and citations issued thereunder illegal, and cessation of red light photo enforcement; an order requiring the public defendants to cause the convictions of red light runners to be overturned, and notification of that action to the DMV; and the refund of all fines and bail forfeitures.
3. Class Designations
Plaintiffs in the C.L. Trustees and Cook actions successfully moved for class certification. The class in C.L. Trustees consisted of "`all persons in the State of California who paid fines, penalties or attorneys' fees as a result of a citation issued through defendants' automated traffic enforcement systems in California.'" The class in Cook consisted of "`all persons who paid a fine and/or assessment or forfeited bail as a result of receiving a citation for a red light violation captured by an automatic enforcement system in the City of San Diego between September 1998 and June 2001.'"
4. Summary Judgment Proceedings
In 2003 the parties in the Glickman, C.L. Trustees and Cook actions filed cross-motions for summary judgment, or alternatively, summary adjudication. The court denied the summary judgment motions, finding triable issues of material fact concerning the contingency fee contracts. The court granted defendants' summary adjudication motion on causes of action not at issue on appeal.
In 2005 the parties in the Leonte action filed cross-motions for summary judgment or summary adjudication. The court granted ACS's motion for summary judgment, ruling that Leonte and Best lack standing to pursue their action because neither of them received a red light citation, and Leonte neither lived nor owned property in the City of West Hollywood. The court also found Best lacks standing to bring a taxpayer waste cause of action because "plaintiffs do not claim that [the c]ity's red[-]light camera photo enforcement system operates at a loss, i.e., is wasteful. Further, the expenditure... of public funds on the ... [c]ity's red-light camera photo enforcement system is not illegal since Vehicle Code [section] 21455.5 contemplates the use of public funds to operate the system."
*1323 5. Motion in Limine and Dismissal of Municipalities
Trial of the Glickman, C.L. Trustees, Cook and Buys actions was held over 11 days in February and March 2006. Before trial, the public and private entity defendants jointly filed a motion in limine to exclude evidence or argument pertaining to the setting aside of criminal penalties imposed on plaintiffs for running red lights. Defendants argued that under California law, a criminal defendant may not bring a civil action to challenge a conviction without first showing the rendering court has overturned the conviction. The motion stated the named plaintiffs "either pleaded guilty to their Vehicle Code violations or contested the charges unsuccessfully, and they have not petitioned [to] the rendering court to vacate their penalties. Yet, [p]laintiffs bring these civil lawsuits seeking a refund of the fines paid in connection with their convictions. And they do not only seek to set aside their own criminal penalties; they seek to do so for everyone else as well."
The court granted the motion and prohibited plaintiffs "from arguing at trial that they are entitled to a refund of the fines that they paid." The court noted plaintiffs "have not shown that their convictions were vacated and set aside by the [rendering] court," and they "have not cited any California case law that allows ... plaintiffs to move to set aside the criminal penalties ... without first vacating the underlying criminal conviction."
Plaintiffs who had named governmental defendants in their actions (Glickman, Cook and Buys actions) dismissed those parties, based on the court's ruling on defendants' motion in limine. Further, the Legislature had amended the Vehicle Code to prohibit, as of January 1, 2004, contingency fee agreements for automated traffic enforcement systems (Stats. 2003, ch. 511, § 1; Veh. Code, § 21455.5, subd. (g)(1)), and the municipalities no longer had any such contracts. Thus, plaintiffs agreed their equitable claims for injunctive relief were moot.[4]
Thus, the only remaining issue was plaintiffs' right to restitution under the UCL from ACS. Plaintiffs argued restitution was proper because "any contract under which a witness is offered compensation contingent on the success of the litigation is void," and "any contract under which one party procures evidence and is compensated contingent on the success of the litigation is void."
*1324 ACS argued the court's ruling on the motion in limine also disposed of plaintiffs' claims against it. Plaintiffs countered that the ruling did not apply to ACS, as ACS obtained fees from the municipalities, rather than criminal penalties. The court found the case remained viable as to ACS and proceeded to trial, where the parties presented numerous witnesses. Although plaintiffs argued the contracts were void on their faces, and they were not required to prove actual bias, their evidence largely pertained to ACS's actual performance of the contracts and purported bias.
6. Trial Court's Ruling
In an April 2006 order the court determined the contingency fee contracts were valid and not void as against public policy because (1) ACS neither acted as a prosecutor nor provided witnesses to "opine on an element of the charge against any citee, such as guilt," and rather, it agreed to provide witnesses to testify only about how the red light camera enforcement systems worked; (2) each contract reserved to the municipality the right to control critical aspects of the systems, such as the location of cameras, the timing of photo taking, the criteria ACS used to review and submit photos to the municipalities, secondary review of the photos, and the decision on whether to issue a citation; (3) there was no evidence the municipalities had unequal bargaining power "in the negotiation and the placement and pricing of the service"; and (4) there was no evidence the number of citations issued under the contingency fee and flat fee contracts differed. On June 9, 2006, the court entered judgment for ACS in each of the five actions.
DISCUSSION
I
Appeal in Leonte Action
A
Taxpayer Waste Cause of Action
Code of Civil Procedure section 526a provides in part: "An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a [local agency] may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein."
*1325 (1) The purpose of Code of Civil Procedure section 526a "is to permit a large body of persons to challenge wasteful government action that otherwise would go unchallenged because of the standing requirement." (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240 [94 Cal.Rptr.2d 740].) "The essence of a taxpayer action is an illegal or wasteful expenditure of public funds or damage to public property. It must involve an actual or threatened expenditure of public funds. General allegations, innuendo, and legal conclusions are not sufficient; rather, the plaintiff must cite specific facts and reasons for a belief that some illegal expenditure or injury to the public fisc is occurring or will occur." (4 Witkin, Cal. Procedure (2007 supp.) Pleading, § 144, pp. 58-59.)
Plaintiff Leonte concedes he lacks standing to pursue a taxpayer waste cause of action against the City of West Hollywood. Plaintiff Best, who is a taxpayer in the City of West Hollywood, contends summary judgment was improper as to him because it was based on the court's erroneous finding he lacks standing because he was not cited for running a red light in an intersection controlled by an automated traffic enforcement system. He relies on White v. Davis (1975) 13 Cal.3d 757, 764 [120 Cal.Rptr. 94, 533 P.2d 222], and Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29 [112 Cal.Rptr.2d 5], which explain that under Code of Civil Procedure section 526a the taxpayer is not required to show special damages.
The court's ruling does not expressly state Best lacked standing to pursue a taxpayer waste cause of action because he was not cited for running a red light, but such a finding may reasonably be inferred. The ruling, however, was also based on findings that the City of West Hollywood's expenditures on the red light program were not wasteful, as there was no evidence the program lost funds, and were not illegal, as Vehicle Code section 21455.5 expressly allows the use of public finds for the program. If the court's findings on those issues were correct, the citation issue is moot.
The third amended complaint in the Leonte action alleged the City of Hollywood had received approximately $8,812,439 from its automated traffic enforcement systems, and the systems were "considered a major revenue source." Best does not challenge the legality of the City of West Hollywood's expenditure of public funds on the systems per se, acknowledging the Legislature authorizes such expenditures in Vehicle Code section 21455.5. Instead, Best purports to challenge the manner in which the City of West Hollywood has contracted for and operated its systems, and he asserts that manner constitutes the wasteful and illegal expenditure of public funds.[5]
*1326 Best cites Wirin v. Parker (1957) 48 Cal.2d 890, 894 [313 P.2d 844], in which the court held "Code of Civil Procedure, section 526a, provides that plaintiff may maintain an action to restrain the expenditure of public funds for illegal purposes. It is immaterial that the amount of the illegal expenditures is small or that the illegal procedures actually permit a saving of tax funds. [Citations.] It is elementary that public officials must themselves obey the law." Best also cites Citizens for Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d 1468, 1473 [285 Cal.Rptr. 456], in which the court held a taxpayer waste action will stand if "paid employees of a ... public entity have expended their time in performing acts prescribed by the challenged law."
Best notes he produced evidence the City of West Hollywood violated Vehicle Code section 21455.5, subdivision (b) by not issuing warning notices for the first 30 days after the installation of automated traffic enforcement systems in certain intersections. Any noncompliance with the grace period, however, did not pertain to the expenditure of public funds, a prerequisite of a taxpayer waste cause of action. Moreover, we disagree with Best's position that a public agency's noncompliance with any aspect of an authorized program gives rise to a taxpayer waste claim. As the City of West Hollywood points out, "[a]bsurd consequences would result if taxpayers could readily get the courts to enjoin governmental agencies from spending any money in connection with any project or program that might arguably involve a component that was inconsistent with the law."
Best also contends he produced evidence the City of West Hollywood's automated traffic enforcement systems used speedtraps in violation of Vehicle Code section 40801. That statute provides: "No peace officer or other person shall use a speed trap in arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code." (Veh. Code, § 40801, italics added.) Vehicle Code section 40802, subdivision (a)(1) defines "speed trap" as a "particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance."
*1327 Best submitted evidence that the automated traffic enforcement systems measure the time it takes a vehicle to travel the distance between a pair of electromagnetic sensors in a traffic lane, and a computer system "performs a time and rate of speed calculation that provides information upon which the system relies in documenting alleged [red light] violations." Further, Best established that a "flash camera is mounted in a box on a pole at the intersection, across from the target area so that the camera can photograph the front of the target vehicle as it proceeds through the intersection," and the "camera location is fixed ..., and thus the [automated traffic enforcement system] must use the vehicle's speed to estimate when the vehicle will be in a position for the required photographs to be taken."
(2) The City of West Hollywood, however, established that it did not use evidence of vehicle speed gathered in conjunction with the red light systems to prosecute any speeding charges. Vehicle Code section 40803, subdivision (a) provides that "[n]o evidence as to the speed of a vehicle upon a highway shall be admitted in any court upon the trial of any person in any prosecution under this code upon a charge involving the speed of a vehicle when the evidence is based upon or obtained from or by the maintenance or use of a speedtrap." (Italics added.) Similarly, Vehicle Code section 40804, subdivision (a) provides that "[i]n any prosecution under this code upon a charge involving the speed of a vehicle, an officer or other person shall be incompetent as a witness if the testimony is based upon or obtained from or by the maintenance or use of a speed trap." Under their plain language, the speedtrap statutes do not apply to red light enforcement, which the Legislature has authorized through the use of automated systems.
Additionally, Best asserts the City of West Hollywood "infringed alleged violators' constitutional and statutory privacy rights." At the trial court, Best complained that the City of West Hollywood granted ACS access to confidential DMV information on the registered owners of photographed vehicles, including their home addresses. Best cited Vehicle Code section 1808.21, subdivision (a) under which "[a]ny residence address in any record of the [DMV] is confidential and shall not be disclosed to any person, except a court, law enforcement agency, or other governmental agency...." (Italics added.)
(3) Best's position lacks merit because private contractors are authorized to obtain the information directly from the DMV as an arm of law enforcement agencies in red light cases, and the information is used for legitimate purposes. Indeed, effective January 1, 2004, the Legislature amended the Vehicle Code to specifically allow governmental agencies to contract out aspects of the operation of their automated traffic enforcement systems that are not expressly reserved to the municipalities, and there is no express *1328 reservation for obtaining information from the DMV. (Veh. Code, §§ 21455.5, subd. (d), 21455.6, subd. (b)(1).) Private contractors may perform administrative and day-to-day functions. (Veh. Code, § 21455.5, subd. (c)(2), (d).)
Further, Vehicle Code section 21455.5, subdivision (e)(1) provides that DMV records "shall be confidential, and shall be made available only to governmental agencies and law enforcement agencies and only for the purposes of this article," and subdivision (e)(2) provides that "[c]onfidential information obtained from the [DMV] for the administration or enforcement of this article shall be held confidential, and may not be used for any other purpose." Also, subdivision (e)(3) requires the disposal of DMV records after six months, or until final disposition of a citation, whichever is first, and the records "shall be destroyed in a manner that will preserve the confidentiality of any person included in the record or information." Thus, the manner of obtaining DMV records does not give rise to a constitutional challenge couched in a taxpayer waste cause of action.
Lastly, Best asserts the contingency fee compensation structure was illegal. That structure, however, was abolished in January 1, 2004, before the court's ruling on the summary judgment motions in the Leonte action, when the Legislature amended Vehicle Code section 21455.5. Thus, there was no longer any actual or threatened expenditure of public funds on contingency fee contracts, or conduct to restrain in a taxpayer waste action. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1086 [40 Cal.Rptr.2d 402, 892 P.2d 1145]; Code Civ. Proc., § 526a.) In his taxpayer waste causes of action against ACS, Best prayed for "preliminary and permanent injunctive relief against [the city] to prevent [its] ongoing unlawful expenditure of public funds."
The trial court properly granted summary judgment for the City of West Hollywood in the Leonte action. A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].) A defendant satisfies this burden by showing "`one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense'" to that cause of action. (Ibid.) In determining whether the moving party met its burden, we review the record de novo. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143 [97 Cal.Rptr.2d 707].)
(4) A taxpayer waste cause of action will not lie where the challenged governmental action is legal. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027 [46 Cal.Rptr.2d 177].) (5) The City of West Hollywood's operation of automated traffic enforcement systems is *1329 authorized by law and generates revenue, and thus it is not "wasteful, improvident and completely unnecessary public spending." (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1139 [232 Cal.Rptr. 814, 729 P.2d 80].) "[C]ourts should not take judicial cognizance of disputes which are primarily political in nature, nor should they attempt to enjoin every expenditure which does not meet with a taxpayer's approval." (Ibid.) A "taxpayer is not entitled to injunctive relief under Code of Civil Procedure section 526a where the real issue is a disagreement with the manner in which government has chosen to address a problem because a successful claim requires more than `an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.'" (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 714 [34 Cal.Rptr.3d 19].)[6]
B
Petition for Writ of Mandamus
(6) Code of Civil Procedure section 1086 provides that a writ of mandate "must be issued upon the verified petition of the party beneficially interested." "This provision has been held to establish a standing requirement the writ will issue only at the request of one who is beneficially interested in the subject matter of the action. [Citation.] [¶] To establish a beneficial interest, the petitioner must show he or she has some special interest to be served or some particular right to be preserved or protected through issuance of the writ." (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th 1223, 1232.)
(7) The trial court determined plaintiffs in the Leonte action have no direct benefit in the issuance of a writ of mandate since they never received citations from the City of West Hollywood. Best claims he was not required to show any direct benefit, because citizens may obtain a writ of mandate *1330 based on public interest. Best cites the following from Green v. Obledo (1981) 29 Cal.3d 126, 144 [172 Cal.Rptr. 206, 624 P.2d 256]: "It is true that ordinarily the writ of mandate will be issued only to persons who are `beneficially interested.' (Code Civ. Proc., § 1086.) Yet in Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98 [162 P.2d 627], this court recognized an exception to the general rule `"where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced."' [Citation.] The exception promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right." In Green v. Obledo, supra, 29 Cal.3d at page 145, the court held that plaintiff citizens had standing to seek writ relief pertaining to the proper calculation of benefits under the aid to families with dependent children program.
Here, the petition for writ of mandate alleged: "A writ of mandate should be issued directing [the city] to perform their [sic] public duties in accordance with the constitution and the laws of this state, and in particular: (1) to refund all fines, bail forfeitures and other assessments collected for illegal Automated Enforcement System citations to the payors; (2) to move to vacate each illegal Automated Enforcement System conviction in the appropriate court; (3) to report the vacation of the convictions to the [DMV] for withdrawal of `points,' (4) immediately and permanently to cease and desist illegally operating the Automated Enforcement System in the City of West Hollywood; and (5) to dismiss all pending prosecutions of the Automated Enforcement System."
Best submits the City of West Hollywood's red light photo program "is a question of public right because drivers and owners of registered vehicles passing through the [c]ity have received thousands of citations." Best made no showing, however, that the City of West Hollywood had any "clear, present duty" (Shamsian v. Department of Conservation (2006) 136 Cal.App.4th 621, 639 [39 Cal.Rptr.3d 62]) pertaining to items 1, 2, 3 and 5, listed above. To the contrary, the city was not and is not a party to criminal proceedings against red light runners, and thus cannot be ordered to perform. "The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action." (Pen. Code, § 683.) "A criminal action is prosecuted in the name of the [P]eople of the State of California, as a party, against the person charged with the offense." (Pen. Code, § 684; see also Veh. Code, § 40000.1.)
*1331 Further, as to item 4, there is no indication the City of West Hollywood is illegally operating its automated traffic enforcement systems, as discussed above. Accordingly, summary judgment on the petition for writ of mandate was proper.[7]
II
Appeal in Glickman, C.L. Trustees, Cook and Buys Actions
A
General Legal Principles
Plaintiffs contend the court erred by finding for ACS, because the contingency fee contracts between it and the municipalities were void as against public policy and thus were predicates for UCL claims.
(8) Business and Professions Code section 17200 does not proscribe specific practices, but broadly prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." The UCL "governs `anti-competitive business practices' as well as injuries to consumers, and has as a major purpose `the preservation of fair business competition.' [Citations.] By proscribing `any unlawful' business practice, `section 17200 "borrows" violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [83 Cal.Rptr.2d 548, 973 P.2d 527].) "`Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competitionacts or practices which are unlawful, or unfair, or fraudulent. "In other words, a practice is prohibited as `unfair' or `deceptive' even if not `unlawful' and vice versa."'" (Ibid.)
(9) "It is well established that our courts, like those of other states, may, in appropriate circumstances, void contracts on the basis of public policy. Of course `[t]he determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the peoplethe state Legislature.' [Citation.] ... `"[U]nless it is entirely plain that a contract is violative of sound public policy, a court will never so declare. `The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, *1332 and ... should be exercised only in cases free from doubt.'"'" (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, fn. 53 [62 Cal.Rptr.3d 527, 161 P.3d 1095], italics added.) "[A] contract should be construed to be valid and enforceable rather than void as against public policy." (Underground Constr. Co. v. Pacific Indemnity Co. (1975) 49 Cal.App.3d 62, 67 [122 Cal.Rptr. 330]; see Civ. Code, §§ 1643, 3541.)[8]
(10) The parties here agreed to the trial court's application of the following test of Wilhelm, supra, 18 Cal.App.2d at page 370, in determining whether the contingency fee contracts were void as against public policy: "`A contract by which one employs another to render services in looking up evidence that would establish a claim or which is to be used on a trial is recognized as valid, unless its tendency is to prevent or impede the due course of justice. The mere fact that the recovery of compensation is to be contingent upon the success of the suit is not sufficient to nullify the contract.'" (Italics added.)
B
Parol Evidence on ACS's Contract Performance
Plaintiffs contend the trial court violated the test of Wilhelm by "focus[ing] almost exclusively on whether the contracts, as a matter of fact, actually tainted or corrupted the prosecution of red light violations." (Boldface omitted.) Specifically, plaintiffs assert the court erred by relying on the lack of evidence of any disparity between the number of citations issued under ACS's contingency fee and flat fee contracts, as that issue goes to actual bias and was immaterial to whether the contingency fee contracts were void ab initio under the Wilhelm test.
We agree that the Wilhelm test is ordinarily applied as of the time of contracting, and not after performance. In Pelkey v. Hodge (1931) 112 Cal.App. 424, 426 [296 P. 908] (Pelkey), the court explained that when a contingency fee contract for testimony invites perjury, "`it will be declared void, although in the particular instance no injury to the public may have resulted. In other words its validity is determined by its general tendency at the time it is made, and if this is opposed to the interests of the public it will be invalid, even though the intent of the parties was good and no injury to the *1333 public would result in the particular case. The test is the evil tendency of the contract and not its actual injury to the public in a particular instance.'" When possible, a contract is interpreted according to the plain language of the writing alone. (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 473 [47 Cal.Rptr.2d 12].)[9]
Plaintiffs, however, did not confine their case to the contract terms and any pertinent evidence concerning the formation of the contracts. Rather, plaintiffs urged the court to consider parol evidence pertaining to ACS's actual performance of the contingency fee contracts, in an effort to disparage ACS and show the evils of contingency fee contracts came to fruition here. Plaintiffs' theory was that a showing of actual bias also necessarily showed that from the outset the contracts tended to obstruct justice. Thus, the invited error doctrine precludes plaintiffs from successfully arguing on appeal that the court applied an incorrect standard by considering evidence of ACS's actual performance and supposed bias. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1290 [58 Cal.Rptr.3d 5].)
During opening remarks, plaintiffs' counsel stated the contingency fee contracts were void on their faces, and thus they were not required to show actual taint, but "[w]e ... want to go further" "to show that the reason for the rule against contingent fee contracts ... applies in this case." Plaintiffs asserted that "substantive harms ... resulted" from the contingency fee contracts, and "the contingent motivation colored and tainted everything ACS did in its actions." (Italics added.) Indeed, the lion's share of plaintiffs' case was designed to show ACS's corruption in the actual performance of the contingency fee contracts. ACS consistently objected to the evidence on relevancy grounds, to no avail.
Plaintiffs, for instance, called a former ACS employee to testify regarding the actual operation of the automated traffic enforcement systems, including such things as how she reviewed photographs; the average number of photographs she reviewed per day; how she obtained closeup photographs of license plate numbers and drivers' faces; how she determined, in accordance *1334 with each municipality's business rules, whether there were red light violations and, if so, whether the violations should be disregarded;[10] the percentage of photographs she recommended for citations; how she retrieved information from the DMV; and how she conducted the citation process. Over ACS's objection, plaintiffs argued the testimony was relevant because it "goes to the issue of the unreliability and the manner in which this was processed, because of the contingency fee, because money was issue number one, and the amount of work that was piled on."
Plaintiffs also put on evidence that in 2001, ACS discovered that four of eight red light cameras it installed in the City of Beverly Hills had incorrect time settings, and cited drivers were given refunds. Over ACS's objection, plaintiffs argued the evidence "speaks to the issue of the corrupting influence that these contracts and the contingent fee payment provision[s] have upon the operation of these cameras, because the cameras are only generating revenue when they're in operation. ACS is first and foremost concerned that they be clicking away 24 hours a day, seven days a week, 365 days a year. And here is an example where for approximately four and a half months ... four of eight cameras continued to operate when the operator, the technician, had failed to change the cameras to reflect daylight savings time." Plaintiffs argued the "contingent nature of the contracts provides the incentive to cheat, ... and that's what this speaks to," and "this is evidence of the ... multitude of concerns that arise and are engendered from including those provisions in the contract."
Additionally, plaintiffs adduced evidence that at an intersection in the County of Los Angeles, the yellow light lasted 3.5 seconds, but for a lengthy period ACS's camera took photos after 3 seconds on the yellow, or 0.5 second too soon. According to ACS, the County of Los Angeles caused the problem by changing the "red light phase that the County provided to ACS."
Further, plaintiffs produced evidence that after ACS and the City of Los Angeles contracted, they disagreed on the selection of certain intersections for the placement of red light cameras. Plaintiffs sought to show that because *1335 ACS's fees were contingent, it urged the City of Los Angeles to select intersections with high rates of red light violations as opposed to intersections with high accident rates. Plaintiffs argued ACS was wrongfully motivated by profit whereas the City of Los Angeles was motivated by safety concerns. Plaintiffs relied on a memorandum in which ACS wrote "the success of the program is centered around the per paid citation price of $60.00 and the selection or productive approaches. Productive approaches being defined as approaches that balance the public safety and revenue objectives of both the City [of Los Angeles] and [ACS]."
Again, over ACS's objection, the court allowed the evidence. The evidence also showed, however, that the City of Los Angeles gave ACS a list of approximately 800 intersections that had the highest accident rates, and directed ACS to choose 16 intersections from the list for the placement of red light cameras, to promote public safety. ACS studied approximately 150 intersections by using a videotape camera to show the average number of red lights run per hour. Ultimately, ACS acceded to the city's authority to select the intersections, and some of them had few red light violations.
Plaintiffs also elicited evidence that in San Diego, ACS relocated sensor loops in three intersections because "they were receiving interference from the street department's ... loops for the [traffic] lights," without first notifying the police department. ACS objected to this evidence as irrelevant to whether the contingency contracts were legal, and this time the court sustained the objection. However, when ACS later questioned a former ACS program manager about this issue, the court allowed the testimony. The witness explained that the loops in the three intersections were relocated farther into the intersections, and away from traffic signal loops, because "there was interference between the loops controlling the [c]ity's traffic signals and the loops that were with the red light camera." As a result, the cameras were locking up and taking no photos of violations. The witness explained she erred by not giving the police department prior notice, but ACS had obtained approval from the city's traffic engineering department.
In response to plaintiffs' case, ACS elicited testimony that the municipalities ultimately chose the intersections in which red light cameras were placed. For instance, the City and County of San Francisco independently selected intersections "based on where the most red light running caused crashes were happening, and resulting injuries." ACS's only input was whether the chosen intersections could accommodate automated traffic enforcement systems. ACS never refused to equip an intersection based on a projected lack of profitability. As ACS argued in closing, "ACS's goal to select sites where enough violations occurred to make the investment of the camera installation worthwhile is entirely consistent with the public safety goal of deterring red light running by catching people who engage in it."
*1336 Moreover, ACS established that the processing of red light violations did not differ under flat fee and contingency fee contracts. Also, ACS's payment to its employees, whether at the supervisory or lower levels, was the same whether the contracts ACS serviced were flat fee or contingency fee. Compensation and bonuses were not tied to the number of citations issued or paid, and ACS did not evaluate employees based on these criteria. ACS's director of engineering, who was responsible for the technological aspects of the automated traffic enforcement systems, testified he did not "get involved in pricing," and he was unaware of whether specific municipalities paid ACS on a flat fee or contingency fee basis. He said, "It didn't affect me. I didn't care about it."
Further, ACS established it set no quotas or targets for citations. Also, ACS did not assist police officers in their review of information ACS sent them, and ACS had no discretion or authority to determine which drivers would get citations. Additionally, ACS presented evidence that after expenses it lost money on the contingency fee contracts.
Now, rather astoundingly, plaintiffs ignore the nature of their evidence, and their protestations to the trial court that ACS's actual performance was relevant to the issue of whether the contingency fee contracts were void as against public policy from their inception. They assert the "applicable legal standard ... is not actual abuse, but the potential for abuse."[11] Their criticism of the court for going outside the four corners of the contracts is unfounded and unfair. If plaintiffs wanted the court's strict adherence to the Wilhelm test, and did not want the court to consider ACS's actual performance in determining whether the contingency fee contracts were void, they should not have submitted such evidence.
The ultimate test of whether the contingency fee contracts actually caused ACS to be corrupt, as plaintiffs alluded, was whether the number of citations under contingency fee and flat fee contracts differed. Certainly, the court properly relied on the lack of any such evidence. Further, the court properly relied on ACS's parol evidence, which also belied plaintiffs' claim of actual bias. Moreover, plaintiffs' evidence of isolated glitches in ACS's systems does not suggest any bias or taint associated with contingency fee contracts. As ACS argued in closing, "Human error ... is not a function of violator funded contracts. You can have human error under flat fee contracts." There was no evidence that ACS intentionally caused the problems to increase its revenue.
*1337 C
Contract Terms
In any event, the other factors on which the court relied are found in the contingency fee contracts themselves, or pertain to the negotiation of the contracts, and are not based on the lack of actual injury to the public. Plaintiffs' assertion that the court relied principally on parol evidence regarding actual bias is erroneous.[12]
Plaintiffs sought to show an inherent conflict in contingency fee contracts, because the municipalities were concerned with safety and as a private company ACS was concerned solely with profitability. ACS established, however, that in negotiations it wanted flat fee contracts as a better means of assuring profitability, but the municipalities insisted on contingency fee contracts or hybrid contracts with contingency fee components to limit financial risks and to give ACS incentive to perform in a timely and proper manner. There is no suggestion ACS took advantage of public agencies to obtain contingency fee arrangements.
Moreover, the contracts show the municipalities retained control over the selection of intersections for red light cameras. For instance, The City of Los Angeles's contract provided: "The 16 intersections and any subsequent intersections are to be selected by the city based on traffic safety needs. The contractor will review each of the intersections and concur with the selection. Any disagreements regarding locations of intersections will be resolved to the mutual satisfaction of the city and the contractor and to the furtherance of the program goal of increased traffic safety." (Some capitalization omitted.) The City of San Diego's contract provided: "The city, based on its own traffic safety criteria, will develop a list of possible sites" in conjunction with its police and transportation departments, and "[a]ll decisions concerning site selection shall vest with the city." (Some capitalization omitted.)
Plaintiffs also argued the contracts were illegal because they paid for ACS's procurement of evidence and testimony on a contingency fee basis, and ACS acted as a prosecutor. Plaintiffs argued that police officers "play[ed] more of a clerical role" than a law enforcement role.
In support of this theory, plaintiffs rely on several opinions. In Von Kesler v. Baker (1933) 131 Cal.App. 654 [21 P.2d 1017] (Von Kesler), the plaintiff *1338 (Baker) was a fruit and berry packer who placed his inventory in a cold storage facility. He alleged the facility was negligent and allowed the berries to ferment. Baker retained the defendant (Von Kesler), a fruit and berry broker who had represented Baker, to testify as an expert in Baker's actions against the storage facility, in exchange for 25 percent of any recovery Baker obtained. The court concluded that "Von Kesler, to the extent of his onefourth interest in any judgments to be procured in the cases, was practically made a party complainant in them in return for his services to be rendered as an expert witness. Such things cannot be. Here was too great a temptation to practice deceit and to commit the too common crime of perjury. The agreement was void as tending to obstruct and impair the administration of justice, and therefore as contrary to public policy." (Id. at p. 658.) Von Kesler distinguished between "[t]he ordinary witness ... testify[ing] to facts known to him," and expert witnesses who may "take the witness-stand in behalf of either party to an action who first comes forward to employ them," a "scandal" that "would be vastly enhanced if agreements like the one before us were permitted to stand." (Ibid.)
Pelkey, supra, 112 Cal.App. 424, was a demurrer case in which the complaints alleged the plaintiffs were witnesses to a will, they were called as witnesses at the trial of the contest of the will, and they had not received their witness fees. The plaintiffs requested their fees during jury deliberations, and the defendants offered the plaintiffs $10,000 contingent on the defendants' success in the litigation, in exchange for a waiver of witness fees, and the plaintiffs accepted. After the defendants prevailed, however, they paid the plaintiffs only $2,000. (Id. at p. 425.) Pelkey did not discuss the nature of the testimony. The court held the issue was not moot after the jury returned its verdict because of the possibility of a new trial or reversal on appeal. The court also held the agreement was invalid because it paid for witness testimony contingent on the success of the case, and thus "offer[ed] an inducement to perjury and tend[ed] to prevent the administration of justice." (Id. at p. 426.)
In People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 [218 Cal.Rptr. 24, 705 P.2d 347] (Clancy), a city hired an attorney to abate public nuisances under an ordinance that prohibited businesses that exclusively sold "`obscene publications.'" (Id. at p. 743.) The contract was to pay the attorney $60 per hour, reduced to $30 per hour for any suit the attorney brought that resulted in a final judgment against the city, and for any suit in which the city prevailed but did not obtain attorney fees. (Id. at p. 745.) The court found that under the circumstances there, the attorney's personal interest in the litigation violated the prosecutor's duty of neutrality, and thus he was disqualified from handling an abatement action against an adult bookstore. (Id. at pp. 746, 750.) The court noted that under appropriate *1339 circumstances, however, the government may engage private counsel on a contingency fee to try a civil case. (Id. at p. 748.)
Plaintiffs also cite Tumey v. Ohio (1927) 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437] (Tumey). In Tumey, the United States Supreme Court held that an Ohio law that allowed a village's mayor to preside over and decide trials of persons accused of unlawfully possessing liquor, violated the accused's constitutional rights because he was entitled to impartiality and the mayor had a pecuniary interest in the outcome of the case. A statute provided the mayor "`shall receive or retain the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases.'" (Id. at p. 519.) The court noted that "no fees or costs in such cases are paid [the mayor] except by the defendant if convicted. There is, therefore, no way by which the [m]ayor may be paid for his service as judge, if he does not convict those who are brought before him; nor is there any fund from which marshals, inspectors and detectives can be paid for their services...." (Id. at p. 520.) The court also noted, however, that "[i]t is further said with truth that the [L]egislature of a [s]tate may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the [s]tate and the people." (Id. at p. 535.)
(11) The facts of the instant cases are readily distinguishable from the facts of Von Kesler, Pelkey, Clancy and Tumey. Further, those cases were issued long ago and they are vague on the standards applicable to determining whether a contingency fee contract has a tendency to obstruct justice. Although the cases contain broad language helpful to plaintiffs, we may not rely on it without considering the particular facts of the cases. "A decision is authority only for the point actually passed on by the court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not necessarily control the outcome in a subsequent suit involving different facts." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985 [44 Cal.Rptr.2d 93]; see Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].)
Here, the contracts show that ACS did not act as a prosecutor. While ACS operated the systems and maintained the cameras, the municipalities' police departments were required to review all of ACS's work and make the final decisions on whether there was probable cause to issue citations. Further, ACS set the cameras, reviewed photographs and recommended citations based on the criteria set forth in each municipality's business rules. The business rules actually decreased the number of possible citations by requiring that no citation be issued in certain circumstances, such as in cases of right-hand turns or gender mismatch.
*1340 Further, in addition to being subject to police department review, ACS's work was also subject to court oversight in contested cases. While the contracts contemplated that ACS would provide expert witness testimony in contested cases, the testimony was limited to the technical operation and accuracy of the red light systems. The contracts did not require ACS to testify as to whether an accused ran a red light, as that testimony was left to law enforcement.
Moreover, there was no evidence that under the contract specifications ACS had any ability to increase revenue by manipulating its equipment to photograph drivers who entered intersections before the lights turned red. As the court held in Leonte I, supra, 123 Cal.App.4th 521, 528, the contract there showed as a matter of law that the City of West Hollywood retained the right to "control the functioning of the systems." Even if that were technically possible, however, it is unreasonable to presume ACS may do so. In the one intersection where photographs were accidentally taken 0.5 second early, ACS was required to return the fees it made on citations that were dismissed because of the error, even though the error was not its fault. Logically, whether the contracts were flat fee or contingency fee, ACS would have been motivated to operate its systems as accurately as possible to assure public agencies of their reliability, to obtain and retain business and to enhance its reputation.
We agree with the trial court that the contracts here did not tend "to prevent or impede the due course of justice." (Wilhelm, supra, 18 Cal.App.2d at p. 370.) ACS did have a financial interest in catching as many violators as possible, as did the municipalities, but that is not inherently sinister when the contracts gave the municipalities exclusive discretion to decide whether to issue citations and exclusive prosecutorial authority. The evils present in the Von Kesler, Pelkey, Clancy and Tumey cases are not present here, and thus they are inapplicable.
To the extent the judgment rests on the disputed factual matters plaintiffs raised, e.g., whether ACS's actual performance of the contracts showed abuse, and thus naturally showed a tendency for abuse, it is supported by substantial evidence. Further, the contract terms support the judgment as a matter of law.[13]
*1341 DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
Aaron, J., and Irion, J., concurred.
NOTES
[1] The following cases are involved in this coordinated action: Glickman v. ACS State and Local Solutions, Inc. (Super. Ct. San Diego County, No. GIC767025); C.L. Trustees v. Affiliated Computer Services, Inc. (Super. Ct. San Diego County, No. GIC773619); Cook v. ACS State & Local Solutions, Inc. (Super. Ct. San Diego County, No. GIC773950); Buys v. Affiliated Computer Services, Inc. (Super. Ct. S.F. City and County, No. 400669); and Leonte v. City of West Hollywood (Super. Ct. L.A. County, No. BC256915).
[2] The second amended complaint also named PRWT as a defendant, which was reportedly ACS's agent for administrating the contract there. We need not refer to PRWT separately, and include it in the ACS designation.
[3] The Leonte action originally included ACS as a defendant on the ground it violated the UCL by operating automated traffic enforcement systems in violation of former subdivision (a) (now subd. (c)) of section 21455.5 of the Vehicle Code, which provided, "Only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system." (Stats. 2001, ch. 496, § 1.) The trial court had sustained without leave to amend a demurrer to the cause of action and dismissed ACS from the action. In October 2004 the Second District Court of Appeal affirmed the ruling in Leonte v. ACS State & Local Solutions, Inc. (2004) 123 Cal.App.4th 521 [19 Cal.Rptr.3d 879] (Leonte I). The court held ACS did not violate section 21455.5 of the Vehicle Code, as "the statutory purpose of authorizing the use of automated traffic enforcement systems is best served by a construction of `operate' that allows a governmental agency to hire private contractors to perform a broad range of functions," as long as an agency "retained the right to oversee and control the functioning of the system and thereby ultimately was the system operator." (123 Cal.App.4th at p. 527.) The trial court here then ruled that plaintiffs may not base their UCL claims against ACS on the issue raised in Leonte I because undisputed evidence showed the municipalities retained the right to oversee and control operation of the automated traffic enforcement systems.
[4] The historical and statutory notes accompanying the amended Vehicle Code section 21455.5 include a letter from Assemblymember Jenny Oropeza regarding the intent of Assembly Bill No. 1022 (2003-2004 Reg. Sess.) (Stats. 2003, ch. 511, § 1). The letter stated: "`With respect to litigation arising from existing law, AB 1022 is not intended to suggest or imply the legality or illegality with respect to any existing law, nor is it intended to imply that any contract based upon existing law is valid or invalid.'" (Historical and Statutory Notes, 66B West's Ann. Veh. Code (2008 supp.) foll. § 21455.5, p. 19.)
[5] Best violates basic principles of appellate practice by not developing any particular argument pertaining to his various "manner of operation" claims, by not citing any supporting legal authority, and by block citing to his summary judgment papers. "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Accordingly, where a party provides a brief "without argument, citation of authority or record reference establishing that the points were made below," we may "treat the points as waived, or meritless, and pass them without further consideration." (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 [220 Cal.Rptr. 712].) We nonetheless address Best's points to the extent possible.
[6] Best contends that even if injunctive relief was unavailable because the City of West Hollywood no longer enters into contingency fee contracts for the operation of its automated traffic enforcement systems, he was entitled to a judicial declaration that former contingency fee contracts it had with ACS were illegal. He cites Van Atta v. Scott (1980) 27 Cal.3d 424, 449 [166 Cal.Rptr. 149, 613 P.2d 210], which explained that "taxpayer suits have not been limited to actions for injunctions. Rather, in furtherance of the policy of liberally construing [Code of Civil Procedure] section 526a to foster its remedial purpose, our courts have permitted taxpayer suits for declaratory relief, damages and mandamus." (Fns. omitted.) The purpose of a taxpayer waste cause of action is to restrain future illegal government conduct, but here, before the court entered summary judgment in the Leonte action, the Legislature expressly prohibited municipalities from entering into contingency fee contracts. (Veh. Code, § 21455.5, subd. (g)(1).) Thus, the equitable remedy of declaratory relief (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1380 [50 Cal.Rptr.3d 40]) would not serve to restrain future conduct and was unnecessary as the matter was moot.
[7] Best does not challenge the trial court's ruling as to the third amended complaint's additional causes of action.
[8] Witkin has explained: "Anything that has a tendency to injure the public welfare is, in principle, against public policy. But to determine what contracts fall into this vague class is exceedingly difficult. It has been frequently observed that the question is primarily for the Legislature, and that, in the absence of a legislative declaration, a court will be very reluctant to hold the contract void." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts § 452, p. 492.)
[9] Relevant parol evidence, however, is admissible when the legality of an agreement is in dispute. (Code Civ. Proc., § 1856, subd. (f); Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 387 [1 Cal.Rptr.3d 739].) "Under California law, when fraud or illegality is alleged, the parol evidence rule does not apply, and evidence of pre-contract representations which vary or contradict the terms of an integrated contract are admissible." (Nagrampa v. MailCoups, Inc. (9th Cir. 2006) 469 F.3d 1257, 1291, italics added.) The parol evidence here, however, did not appear to vary or contradict the terms of the contingency fee contracts.
[10] Each municipality had business rules, which were ordinarily developed by its city attorney's office, the police department and the superior court. The rules concerned such issues as whether citations should be issued to drivers whose gender did not match that of the registered owner of the vehicle, to drivers of out-of-state vehicles, or to drivers turning right on a red light, and whether any grace period should be given drivers who entered intersections immediately after the lights turned red. The Vehicle Code allows an agency to issue a citation to the registered owner of a vehicle involved in a red light violation, even if he or she was obviously not the driver, if it establishes a procedure "whereby registered owners ... may execute an affidavit of nonliability if the registered owner identifies the person who was the driver of the vehicle at the time of the alleged violation and whereby the issuing agency issues a notice to appear to that person." (Veh. Code, § 40520, subd. (c).)
[11] In closing argument, plaintiffs again emphasized that while they could have relied solely on the contingency fee contracts, "we went beyond that. We ... actually proved how ... the taint from a contingent fee payment arrangement could enter into that system, and ... even did enter into that system." Plaintiffs argued that they produced evidence of "documented" abuses by ACS.
[12] Numerous contracts and amendments thereto between ACS and various municipalities were entered into evidence. Plaintiffs represented that substantively the contracts "are largely the same," and ACS did not disagree. Thus, we are not required to discuss each contract separately.
[13] ACS also contends the judgment must be affirmed because plaintiffs are barred from obtaining restitution from ACS of a portion of the fines they paid without first having their convictions overturned, they cannot establish causation since the municipalities issued the citations, ACS's performance under the contracts is protected by the litigation privilege, and the balancing of equities favors judgment in ACS's favor. Given our holding, we are not required to reach these interesting issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265514/ | 163 Cal.App.4th 247 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
MARCOS SORIA, Defendant and Appellant.
No. H031237.
Court of Appeals of California, Sixth District.
May 23, 2008.
*249 Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RUSHING, P. J.
STATEMENT OF THE CASE
Defendant Marcos Soria pleaded guilty to numerous charges that were alleged in three separately filed complaints, and in exchange, the court imposed a specified sentence of 35 years eight months. The court also imposed three separate restitution fines in each case totaling $10,600 and matching parole revocation fines, the latter of which were suspended. (Pen. Code, §§ 1202.4, subd. (b), 1202.45.)[1]
On appeal from the judgment, defendant claims the imposition of separate fines in each case totaling more than $10,000 was unauthorized. We agree and strike the fines imposed in two of the three cases, leaving a single restitution fine of $10,000 and a suspended matching parole revocation fine of $10,000.
*250 BACKGROUND[2]
On September 30, 2005, the Santa Clara County District Attorney (District Attorney) filed a complaint in case No. CC506587 charging defendant with two counts of vehicle theft, reckless driving, hit-and-run driving, driving without a license, and resisting arrest. On October 11, 2005, the District Attorney filed a second complaint in case No. CC507417 charging defendant and codefendant Bengie Carinio with attempted premeditated murder, two counts of assault with a firearm, and shooting at an occupied vehicle plus various enhancements. On October 18, 2005, the District Attorney filed a third complaint in case No. CC508203 charging defendant with vehicle theft.
On December 27, 2005, defendant pleaded not guilty to all of the charges. Thereafter, he negotiated a package plea bargain that resolved all of the charges in the three cases. On March 16, 2006, defendant changed his pleas to guilty.[3]
At the hearing, the prosecutor explained the plea bargain. He said that in exchange for defendant's pleas, the allegation that the attempted murder was premeditated would be dismissed, and defendant would receive a specified sentence of 35 years eight months. Defense counsel agreed with the disposition, and defendant said that he understood it. The court then explained defendant's constitutional rights, and defendant waived them. Defendant indicated that no other promises had been made and that his plea was free and voluntary. The court noted that defendant's maximum exposure was 41 years four months, but it would impose the specified sentence. Next, the court explained various consequences of pleading guilty, including that defendant would be "subject [to] a restitution fund fine of not less than $200 nor more than $10,000 as to each case." Defendant said he understood and then entered his pleas.
Thereafter, the prosecutor said, "[A]t this time I would ask for [defendant] to waive his appellate rights, be informed that he has the right to appeal, waive those appellate rights and any issues pursuant to Penal Code [section] 654." The court asked and defendant said he understood that he had the right to appeal. The court then asked, "Do you give up your right to an appeal and accept sentence summarily without exercising your right to appeal?" Defendant said "[y]es."
*251 The single probation report prepared for the case broke down the specified sentence into the component terms for each offense and enhancement. It also recommended separate restitution and matching parole revocation fines in each case$10,000 fines in case No. CC507417; $200 fines in case No. CC508203; and $400 fines in case No. CC506587.
At sentencing on August 25, 2006, the court imposed the specified sentence, announced the custody credits to which defendant was entitled, and imposed separate restitution and matching parole revocation fines in each case.
DISCUSSION
Defendant claims the imposition of restitution and matching parole revocation fines each totaling more than $10,000 was unauthorized.
In addition to opposing defendant's claim, the Attorney General argues that the claim is barred because defendant waived his right to appeal. Alternatively, the Attorney General argues that the plea bargain precludes defendant's challenge to the restitution fines.
Waiver of Appellate Rights
"Because waivers of appellate rights are ordinarily found in the context of a plea bargain, the scope of the waiver is approached like a question of contract interpretationto what did the parties expressly or by reasonable implication agree?" (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157 [83 Cal.Rptr.2d 314].) Thus, where "the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant's waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] The waiver will not cover claims that the trial court imposed a sentence in excess of its fundamental jurisdiction or the terms of the bargain, but the waiver will not allow review of alleged error in the computation or imposition of the sentence, including application of section 654. [Citation.]" (Id. at pp. 1157-1158.) Nevertheless, the right of appeal should not be considered waived or abandoned except where the record clearly establishes it. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662 [17 Cal.Rptr.2d 445].)
*252 Here, after defendant pleaded guilty, the prosecutor asked the court to obtain a general waiver of "appellate rights and issues concerning Penal Code [section] 654." The court asked defendant if he understood that he had the right to appeal and then asked if he gave up that right and would "accept sentence summarily without exercising your right to appeal?" (Italics added.) Defendant said he would.
Clearly, defendant's waiver expressly encompassed any claims concerning his specified sentence, including how it was computed and whether separate terms for his offense might be prohibited under section 654. However, the record does not establish that defendant agreed to waive claims concerning restitution fines, and in particular, his claim that the imposition of fines exceeding $10,000 was unauthorized. We note that the prosecutor did not mention restitution fines when he recited the terms of the bargain or later when he solicited a general waiver of appellate rights. Although the court explained restitution fines before defendant entered his plea, that advisement did not obviously imply that defendant would not be able to challenge restitution on appeal. And later, in explaining defendant's right of appeal and obtaining his waiver, the court did not mention restitution. Rather, it expressly referred only to the sentence.
We further note that "[a] broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error." (People v. Mumm (2002) 98 Cal.App.4th 812, 815 [120 Cal.Rptr.2d 18], italics added.) "Thus, a waiver of appeal rights does not apply to `"possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.'" (Ibid.) Accordingly, a "general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea . . . ." (People v. Panizzon (1996) 13 Cal.4th 68, 85 [51 Cal.Rptr.2d 851, 913 P.2d 1061], fn. omitted.)
Here, the alleged error was not the advisement concerning restitution fines, which was given before defendant's waiver; rather, the alleged error was the imposition of fines, which occurred after defendant's plea and waiver.
Given the ambiguity concerning the intended scope of defendant's waiver and the timing of the alleged error, we do not find that defendant waived his right to challenge the validity of the restitution and parole revocation fines.[4]
*253 The Plea Bargain
Although one need not object to an unauthorized sentence to challenge it on appeal, it is settled that when a defendant has pleaded guilty in return for a specified sentence, he or she may not challenge that sentence on appeal, even if it might otherwise be statutorily unauthorized, as long as the trial court had fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295 [92 Cal.Rptr.2d 641, 992 P.2d 569]; e.g., People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057 [56 Cal.Rptr.2d 220] [acceptance of specified sentence barred appellate claim of error in imposing it]; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123 [16 Cal.Rptr.2d 490] [same].) "The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester, supra, 22 Cal.4th at p. 295.)
The Attorney General argues that even if the fines here were unauthorized, defendant may not challenge them because the plea bargain "expressly encompassed three cases, that had not been consolidated," and "[t]he parties contemplated separate fines in each case." Thus, "the trial court had fundamental jurisdiction to sentence in accord with the terms of the plea bargain under which [defendant] accepted liability to fines in each case up to the statutory maximum." We disagree.
As our factual summary reveals, the prosecutor outlined the plea bargain and identified only three terms: (1) the allegation of premeditation would be dismissed; (2) defendant would plead guilty to all of the remaining allegations; and (3) he would receive a specified sentence of 35 years eight months. The prosecutor did not mention restitution fines; and his outline of the bargain did not reasonably suggest that it included the imposition of restitution fines in excess of $10,000. Likewise, after the prosecutor outlined the bargain, defense counsel did not add that the bargain covered restitution fines; nor did defense counsel suggest that the bargain either precluded the imposition of any fines or limited restitution fines to $10,000. Thus, the record at most indicates that the plea bargain dealt only with the resolution of the charges and the imposition of a specified sentence and that the parties left the issue of restitution fines to the trial court's discretion, which it would exercise in accordance with applicable law. (E.g., People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386 [19 Cal.Rptr.3d 545].)
*254 Insofar as the Attorney General implies that the court's advisementi.e., that defendant was subject to fines up to $10,000 in each caserepresented a term of the bargain, we also disagree. The court did not purport to recite a term of the plea bargain but simply advised defendant about the consequences of pleading guilty and explained the scope of its discretion to impose restitution fines. Although defendant said he understood the court's advisement, doing so does not establish that the advisement reflected a term of the bargain or that defendant thought it did. Defendant merely acknowledged the court's view of its discretion concerning the imposition of restitution.
Under the circumstances, we do not find that the bargain encompassed any agreement concerning the imposition of separate fines in each case or fines totaling more than $10,000. Thus, just as defendant may not now claim that the imposition of multiple fines totaling more than $10,000 violated the plea bargain, the Attorney General may not claim that imposition of such fines was a term of the bargain.
Propriety of Separate Fines Exceeding $10,000
To help resolve defendant's claim that the restitution fines were unauthorized, we first review some relevant cases.
In People v. McNeely (1994) 28 Cal.App.4th 739 [33 Cal.Rptr.2d 582] (McNeely), the court addressed a claim similar to defendant's claim here. There, at separate hearings, the defendant pleaded guilty to eight burglaries charged in one information and two burglaries charged in another. At the next hearing, the court imposed sentence on all charges and also ordered the defendant to pay $93,000 in restitution to the various victims under Government Code former section 13967, subdivision (c), which applied at that time.[5] On appeal, the defendant claimed that restitution was limited to $10,000. (28 Cal.App.4th at pp. 742-744.) The reviewing court agreed. It explained that the statute "did not give the court authority to order restitution up to $10,000 for each victim or on each count. Nor did it allow a restitution order exceeding $10,000 where, as here, a defendant is sentenced in one hearing on two or more cases." (Id. at p. 743, italics added.) Noting cases limiting restitution fines to the $10,000 limit regardless of the number of victims or counts, the court observed that "[w]hile a trial court can separately sentence a *255 defendant on different cases at a single hearing [citation], here the court combined the charges in both cases in imposing the prison term and ordering restitution. We do not believe this creates separate sentencing proceedings on the two cases. When a penal statute is ambiguous, it must be construed in the light most favorable to the defendant. [Citation.] When section 13967 is construed in this light, a restitution order on a crime committed in 1989 is limited to $10,000." (Id. at pp. 743-744.)[6]
In People v. Ferris (2000) 82 Cal.App.4th 1272 [99 Cal.Rptr.2d 180] (Ferris), the court addressed a similar claim concerning restitution fines under sections 1202.4 and 1202.45. As in McNeely, the defendant was charged in two cases with crimes committed on different occasions. After the defendant pleaded not guilty, the prosecutor moved to join the cases for trial under section 954. The court granted the motion but did not formally consolidate the two cases under a single information and case number. Thereafter, the jury returned separate verdicts of guilt in each case, and separate probation reports were prepared. At sentencing, the court imposed $10,000 restitution and matching parole revocation fines in each case. On appeal, the defendant claimed that the imposition of separate fines totaling more than $10,000 was unauthorized because the two cases had been consolidated, and sections 1202.4 and 1202.45 limited fines to $10,000 "[i]n every case" where a person is convicted of a felony and the sentence includes a period of parole. (82 Cal.App.4th at pp. 1274-1276; see fn. 1, ante.) To resolve the defendant's claim, the court construed the meaning of the phrase "in every case."[7]
*256 Observing that "joinder" and "consolidation" are terms often used interchangeably, the court first opined that under the facts of the case, any linguistic distinction was irrelevant because clearly, the defendant was "substantively tried and sentenced in one joint case." (Ferris, supra, 82 Cal.App.4th at p. 1277.) Finding the case similar to McNeely, the court noted that sections 1202.4 and 1202.45 "do not specify whether the phrase `every case' means every separately charged and numbered case or every jointly tried case." (Ferris, supra, 82 Cal.App.4th at p. 1277.) Given this ambiguity, the court adopted the construction more favorable to the defendant and concluded that the phrase in "`every case'" "includes a jointly tried case although it involves charges in separately filed informations." (Ibid.) The court noted that the charges had been joined for trial, which "effectively" joined the two cases despite the fact that they retained separate case numbers. Accordingly, the court held that it was error to impose restitution fines exceeding the statutory maximum of $10,000. (Ibid.) The court further observed that allowing separate restitution fines in a case involving separate informations but joint trials and sentencing could lead prosecutors to seek numerous fines by filing multiple informations that allege a single offense. The court declined to condone such an exercise of form over substance. (Id. at p. 1278 & fn. 10.)
In People v. Enos (2005) 128 Cal.App.4th 1046 [27 Cal.Rptr.3d 610] (Enos), at a single hearing, the defendant entered into a negotiated disposition and pleaded guilty to charges alleged in three separate cases. The trial court imposed separate restitution and parole revocation fines in each case, totaling $1,800. Citing Ferris, the defendant claimed that the imposition of three separate restitution fines was unauthorized because the three separate cases were resolved in a comprehensive plea agreement at a single sentencing hearing. The court disagreed, finding Ferris inapplicable for two reasons. (Id. at pp. 1048-1049.)
"First, the facts are different. Here, there was never a motion to join or consolidate the three cases, and, even though there was a combined sentencing hearing, the cases were not tried together, as they were in Ferris. Here, *257 throughout the proceedings, the trial court and the parties treated the cases as separate. In addition, three separate appellate records were prepared, each corresponding to its own number. Separate minute orders and separate notices of appeal were filed in each case." (Enos, supra, 128 Cal.App.4th at p. 1049.)
"Second, we think the Ferris court's primary concern was not with the trial court's imposition of more than one section 1202.4, subdivision (b) restitution fine and more than one suspended section 1202.45 parole revocation fine but rather with the resulting total of the fines that exceeded the $10,000 statutory limit. [Citation.] The court cited its earlier decision in [McNeely] where it held that a restitution order cannot exceed $10,000 if the defendant is sentenced in multiple cases at a single hearing. [Citation.] Thus, in our view Ferris stands for the proposition that a trial court cannot impose multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in nonconsolidated cases where the total fines exceed the statutory maximum; the opinion does not address the question whether separate fines are proper where the total does not exceed the statutory maximum. [Citation.]" (Enos, supra, 128 Cal.App.4th at p. 1049.)
Last, the court opined that nothing in the statutes prohibits multiple fines "in consolidated cases disposed of at a single sentencing hearing. To read these statutes as precluding separate fines that do not exceed the statutory maximum would result in a rule of law with no practical effect, because a defendant could never show prejudice. A trial court sentencing a defendant in consolidated cases would simply calculate the amount of the restitution fines as a whole instead of breaking them down separately for each case. This is in essence exactly what the trial court did here; it expressed an intention to impose a total fine of $1,000, and then allocated that fine among the three cases so that the statutory minimum fine was imposed in each. Because the total fine would be the same, whether imposed in the aggregate or portioned and separately imposed in each case, there cannot be any prejudice to appellant." (Enos, supra, 128 Cal.App.4th at pp. 1049-1050, fn. omitted, first italics added.)
In People v. Schoeb (2005) 132 Cal.App.4th 861 [33 Cal.Rptr.3d 889] (Schoeb), the defendant entered a negotiated settlement to five separate cases, pleading guilty to nine charges in exchange for dismissal of the others. At a single sentencing hearing, the court imposed five separate restitution fines, totaling $2,600. (Id. at p. 863.) On appeal, the court upheld the separate *258 fines. It distinguished Ferris, noting that the defendant's cases were never consolidated for trial and that there were separate abstracts and minute orders in each case. Moreover, applying Enos, the court found no error because the total amount of the restitution fines did not exceed $10,000. (Id. at p. 865.)
Defendant acknowledges that this case, like Enos and Schoeb, is distinguishable from Ferris because his three cases were not jointly tried. However, according to defendant, this distinction does not necessarily mean that his fines were authorized. He argues that just as in Ferris, the phrase "in every case" was ambiguous concerning whether it referred individually to each separately charged and numbered case or collectively to separate cases that are jointly tried, here also, the phrase is ambiguous concerning whether it refers only to individual cases (and jointly tried cases) or to cases jointly resolved without a trial in a single proceeding under a comprehensive plea bargain.
According to defendant, there is no substantive legal reason to distinguish multiple cases jointly resolved in one trial from multiple cases jointly resolved at the same time under a comprehensive plea bargain. Nor, defendant argues, is there a valid policy reason to bar fines in excess of $10,000 when multiple cases are jointly tried but permit such fines when multiple cases are jointly resolved under a single plea bargain. "That is, there is no basis for subjecting a defendant who elects to admit charges at an early stage, thereby minimizing the use of judicial resources, to greater punishment than one who contests the charges through trial."
We agree that the phrase "in every case" is no less ambiguous here than it was under the circumstances in Ferris. Moreover, we also agree with defendant's analysis.
In Ferris, the court's interpretation of the phrase "in every case" was not controlled by the fact that the cases were not formally consolidated, they retained separate numbers, and various administrative procedural details reflected the separate status of the casese.g., separate jury verdicts and probation reports in each case. Rather, focusing on substance rather than form, the court viewed the phrase in a practical rather than technical way and considered it reasonably susceptible of an interpretation based on how the numerous charges in multiple cases were resolved. Implicitly, the court reasoned that a single trial on all the charges would be the same regardless of whether the charges were alleged in one case or multiple cases. In effect, *259 therefore, the unified resolution of the charges consolidated the three technically separate cases into one for the purpose of restitution fines under sections 1202.4 and 1202.45.
We observe that the Ferris court did not expressly discuss the goal of restitution fines and parole revocation fines, which is "the recoupment from prisoners and potentially from parolees who violate the conditions of their parole some of the costs of providing restitution to crime victims." (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184 [83 Cal.Rptr.2d 157].) However, we note that although the court's interpretation does not maximize the amount of money that could be collected from convicted felons for purposes of restitution, its interpretation is not inconsistent with the statutory purpose and does not frustrate or defeat it. (See Smith v. Superior Court (2006) 39 Cal.4th 77, 83 [45 Cal.Rptr.3d 394, 137 P.3d 218] [statutes are interpreted to comport with legislative intent and promote rather than defeat their general purpose].) Nor do we find it unreasonable as a matter of law.
Here, we do not consider the fact that defendant's three cases were not formally consolidated under a single information or jointly tried controlling on the meaning of the phrase "in every case." Moreover, the resolution of multiple cases under the package plea bargain at a single hearing is functionally identical to the resolution of multiple cases in a joint trial, and in each instance the resolution would have been the same regardless of whether the charges had been alleged in one case or multiple cases. Thus, we find no material basis to distinguish this case from Ferris. Moreover, we cannot conceive a policy reason why a defendant who forgoes trial and resolves multiple cases under a single plea should be subject to restitution fines exceeding $10,000 when a defendant whose multiple cases are joined for trial is not. In our view, the unified resolution of all charges under a package plea bargain at a single hearing effectively consolidated defendant's three cases into one case for purposes of restitution fines just as a joint trial does.
Furthermore, notwithstanding separate case numbers and minute orders, the procedural indicia of effective consolidation are far more extensive here than they were in Ferris, Enos or Schoeb. Defendant initially entered his pleas to the charges in each case at the same hearing. He then negotiated a single, package plea bargain that resolved all of the charges in each case and resulted in a specified sentence of 35 years eight months. At the same hearing, he collectively waived his constitutional and appellate rights and pleaded guilty to the charges in all of the cases. The probation department prepared a single probation report. The court held a single sentencing hearing and filed only one abstract of judgment. Defendant filed a single notice of appeal, and only one appellate record was prepared.
*260 Under the circumstances, we hold that the phrase "in every case" may reasonably be construed to include multiple cases that are fully and completely resolved at the same time under a package plea bargain.
As noted, in construing ambiguous statutes, the courts in McNeely and Ferris adopted the construction more favorable to the defendant. Here, even if we assume that the phrase "in every case" reasonably may be interpreted to limit restitution fines to $10,000 only where there is one accusatory pleading and case number or where multiple cases are jointly tried, we shall adopt the interpretation more favorable to defendant. Thus, we hold that sections 1202.4 and 1202.45 limit fines to $10,000 not only where there is one case number or where multiple cases jointly tried but also where the charges in multiple cases are fully and completely resolved at the same time under a comprehensive, package plea bargain.
Finally, we note that in Enos, the court read Ferris to mean that "a trial court cannot impose multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in nonconsolidated cases where the total fines exceed the statutory maximum . . . ." (Enos, supra, 128 Cal.App.4th at p. 1049, italics added.) Thus, even under the Enos court's view of Ferris, the imposition here of three fines totaling $10,600 would be unauthorized.
In sum, we conclude that at sentencing, sections 1202.4 and 1202.45 permitted the imposition of restitution and parole revocation fines up to $10,000. Thus, the imposition of restitution and parole revocation fines each totaling $10,600 was unauthorized.[8]
DISPOSITION
The judgment is modified to strike the $400 restitution fine and matching parole revocation fine in case No. CC506587 and the $200 restitution fine and matching parole revocation fine in case No. CC508203. As modified, the *261 judgment is affirmed. The clerk of the superior court is directed to correct the joint abstract of judgment to show only one restitution fine of $10,000 and one suspended parole revocation fine of $10,000.
Premo, J., and Elia, J., concurred.
NOTES
[1] Penal Code section 1202.4, subdivision (a)(3)(A) provides that, in addition to any other penalty provided or imposed under law, the court shall order a person convicted of a crime to pay a restitution fine in accordance with Penal Code section 1202.4, subdivision (b).
Penal Code section 1202.4, subdivision (b) 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." (Italics added.)
All unspecified statutory references are to the Penal Code.
[2] Given the sentencing issue raised on appeal, we need not summarize the facts underlying defendant's offenses.
[3] At the same hearing, codefendant Bengie Carinio also pleaded guilty in case No. CC507417.
[4] Although defendant did not object to the imposition of the fines in excess of $10,000, he did not forfeit his right to challenge them as unauthorized. (People v. Smith (2001) 24 Cal.4th 849, 851-852 [102 Cal.Rptr.2d 731, 14 P.3d 942] [challenge to restitution fines as unauthorized not forfeited by failure to object]; e.g., People v. Andrade (2002) 100 Cal.App.4th 351, 354 [121 Cal.Rptr.2d 923] [failure to object to imposition of allegedly unauthorized parole revocation restitution fine did not forfeit challenge on appeal]; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [86 Cal.Rptr.2d 134] [imposition of restitution fines of more than $10,000 was an amount that could not lawfully be imposed and therefore challenge not waived by failure to object]; People v. Chambers (1998) 65 Cal.App.4th 819, 821-823 [76 Cal.Rptr.2d 732] [failure to object to the imposition of a second restitution fine does not forfeit appellate review].)
[5] The applicable version of Government Code former section 13967, subdivision (c) provided, in pertinent part, "In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim. Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, but not to exceed ten thousand dollars ($10,000)." (Stats. 1988, ch. 975, § 1, pp. 3151-3152, italics added.)
[6] It has long been judicial policy in California to give the defendant "`the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.'" (People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401], quoting Ex parte Rosenheim (1890) 83 Cal. 388, 391 [23 P. 372]; accord, People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312 [58 Cal.Rptr.2d 855, 926 P.2d 1042]; see United States v. Bass (1971) 404 U.S. 336, 347 [30 L.Ed.2d 488, 92 S.Ct. 515] ["`[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.'"].) Thus, "`[w]hen language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.'" (People v. Snyder (2000) 22 Cal.4th 304, 314 [92 Cal.Rptr.2d 734, 992 P.2d 1102], quoting People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal.Rptr. 213, 726 P.2d 1288].)
[7] The phrase "in every case" was apparently taken from the 1982 voter initiative called the Victim's Bill of Rights. The initiative added article I, section 28, subdivision (b) to the California Constitution, which established the right of crime victims to receive restitution directly "from the persons convicted of the crimes for losses they suffer." (Cal. Const., art. I, § 28, subd. (b).) The new provision stated, "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer, [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." (Ibid., italics added.)
The new provision, which was not self-executing, also directed the Legislature to adopt implementing legislation, and one piece of responsive legislation was section 1202.4 (People v. Narron (1987) 192 Cal.App.3d 724, 732, fn. 4 [237 Cal.Rptr. 693]; see People v. Giordano (2007) 42 Cal.4th 644, 651-654 [68 Cal.Rptr.3d 51, 170 P.3d 623] [reviewing the history of California's restitution statutes].)
[8] We do not intend to suggest that a restitution fine in excess of $10,000 may not be part of a plea bargain that resolves multiple cases at one time or that where a defendant agrees to such a fine, he or she may later challenge it as unauthorized. (See People v. Crandell (2007) 40 Cal.4th 1301, 1309 [57 Cal.Rptr.3d 349, 156 P.3d 364] [the parties "are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution (whether by specifying the amount or by leaving it to the sentencing court's discretion) they find mutually agreeable"].) As noted, when the trial court has fundamental jurisdiction and when a defendant has pleaded guilty in return for a specified disposition, he or she may not seek a better deal on appeal by claiming that parts of the agreed-upon disposition were unauthorized. (People v. Hester, supra, 22 Cal.4th 290, 295.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265515/ | 657 F.Supp. 504 (1987)
Clarice J. ABERNATHY, Plaintiff,
v.
Ralph G. ERICKSON, a/k/a Pete Erickson; Wayne E. Erickson; Mark Scott Erickson; and Ralph G. Erickson, Wayne E. Erickson and Mark Scott Erickson, d/b/a Prairie Lake Lodge and Hunt Club, a Partnership or Joint Adventure, Defendants.
No. 86 C 7092.
United States District Court, N.D. Illinois, E.D.
April 10, 1987.
*505 Craig M. Armstrong, Armstrong, Surin & Engels, Ottawa, Ill., appeared on behalf of plaintiff.
Terrence J. Goggin, Steven D. Pearson, Goggin, Cutler & Hull, Chicago, Ill., appeared on behalf of defendants.
Daniel J. Bute, Cantlin, Bute & Deobler, Ltd., Ottawa, Ill., appeared on behalf of interpleader.
ORDER
BUA, District Judge.
Two motions are before this court. First, defendants bring a motion to dismiss plaintiff's amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Second, petitioner Kenneth Votava brings a motion to interplead. Plaintiff's action is based on the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq. Jurisdiction and venue are conferred on this court by 18 U.S.C. §§ 1964(c) and 1965(a). For the reasons stated herein, defendants' motion to dismiss plaintiff's amended complaint is granted. Votava's motion to interplead is moot.
FACTS
In 1955, plaintiff Clarice J. Abernathy and defendant Ralph G. Erickson, then husband and wife, obtained title in joint tenancy to an undivided half interest in 80 acres of rural land. Ralph Erickson's brother, co-defendant Wayne E. Erickson, owned the remaining half interest. Together they developed this land into the "Prairie Lake Lodge and Hunt Club" ("Prairie Lake Lodge"). In 1959, plaintiff and Ralph Erickson entered into an agreement which terminated plaintiff's interest in the property. Nevertheless, in 1978, Wayne Erickson, Ralph Erickson, and plaintiff entered into an agreement to sell the Lodge property for $721,000.
Plaintiff and Ralph Erickson were divorced before the buyers made their final payment. Ralph Erickson and plaintiff entered into a post-divorce property settlement in 1979. The settlement provided that plaintiff and Ralph Erickson retain whatever rights and interest they had in the sale contract for Prairie Lake Lodge.
On January 24, 1981, the buyers of the Lodge defaulted. Shortly thereafter the co-defendants repossessed the property and resumed its operation. Ralph Erickson *506 proceeded to deed his property interest to his nephew Mark Scott Erickson. Plaintiff then petitioned the Circuit Court of LaSalle County to overturn the couple's property settlement. Plaintiff alleged that Ralph Erickson had failed to reveal certain property interests and fraudulently misstated the extent of his interests. In September 1983, the court dismissed plaintiff's claim as "wholly without merit." However, the trial court stated that plaintiff still had a one-fourth interest in the Prairie Lake Lodge property.
In 1985, Mark Scott Erickson reconveyed his one-half interest in the Lodge to his uncle, Ralph Erickson. Finally, on May 9, 1985, Prairie Lake Lodge was sold. Plaintiff believes she did not receive certain proceeds entitled to her from the sale of the property and this litigation ensued.
DISCUSSION
The plaintiff's six-count amended complaint presents four federal RICO counts and two pendent common law counts based on fraud. The defendants move to dismiss the RICO claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure claiming plaintiff failed to state a claim upon which relief can be granted. Defendants then move to dismiss the pendent common law claims based upon a lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1).
Defendants present four arguments in support of their motion. They argue that plaintiff lacks standing to assert her claims, that the RICO claims are time-barred by the two-year statute of limitation, that plaintiff failed to properly plead a RICO claim, and that plaintiff's amended complaint is an impermissible collateral attack on a final judgment of the Circuit Court of LaSalle County.[1]
Plaintiff refutes these arguments. Plaintiff believes that her one-fourth interest in Prairie Lake Lodge confers standing on her to bring her claims. Next, plaintiff maintains that the very last predicate act of the defendants is what triggered the running of the statute of limitation and that act was within the limitation period. Third, plaintiff contends that she satisfied the pattern requirements of her RICO claims. Last, plaintiff argues that her complaint is not a collateral attack of the earlier fraud judgment, but rather is a RICO claim in and of its own right.
I. Standing
Defendants argue that plaintiff lacks standing to assert the instant claim. Defendants contend that plaintiff has no personal stake in the instant controversy because she conveyed her entire interest in the Prairie Lake Lodge to Ralph Erickson in 1959. Defendants believe this conveyance extinguished all her rights in the property.
Defendants also argue that plaintiff received no property interest in Prairie Lake Lodge as a result of the post-divorce property settlement. Defendants contend that the property settlement granted plaintiff a contractual right to retain only her interest in the first sales contract for Prairie Lake Lodge. Defendants suggest that plaintiff had no rights in the underlying property, but only rights in the proceeds generated from the property's sale. Finally, defendants implicitly suggest that plaintiff's interest in the property terminated when the buyers defaulted on the sale contract.
In order to have standing in a federal court, a plaintiff must show more than a violation of law. Allen v. Wright, 468 U.S. 737, 754, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984). A plaintiff must show the kind of actual or threatened injury that would support a lawsuit under traditional principles of common law or equity. People Organized for Welfare & Employment Right v. Thompson, 727 F.2d 167, 171 (7th Cir.1984). Indignation that the law is not being obeyed, sympathy for the victims of that disobedience, a passionate desire to do one's legal duty none of these emotions, however laudable, sincere, and intense, will *507 confer standing. Id. See Cronson v. Clark, 810 F.2d 662, 664 (7th Cir.1987).
The U.S. Supreme Court defined the requisite interest a party must have to form a basis for standing in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). In Morton, the Court held that
... the question of standing depends upon whether the party has alleged such a `personal stake in the outcome of the controversy' (citation omitted) as to ensure that `the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution' (citation omitted). Id. at 732, 92 S.Ct. at 1364.
This court rejects defendants' argument. This court believes that plaintiff's amended complaint sets forth her personal stake in the outcome of this lawsuit. Paragraph 13 states that the property settlement entered into between plaintiff and Ralph Erickson reserved to plaintiff her undivided interest in the Prairie Lake property. This assertion alone is sufficient to confer standing, since a well pled fact of financial interest must be taken as true for purposes of a motion to dismiss. See Mathers Fund, Inc. v. Colwell, 564 F.2d 780, 783 (7th Cir.1977). In sum, plaintiff alleges that her property rights were not limited to the proceeds from the sale of the property. Plaintiff argues she had a one-fourth interest in the property and that the interest survived the buyer's default.
In addition, plaintiff presents matters outside the pleadings. Plaintiff refers to a judgment order issued by Judge Zwanzig of the Circuit Court of LaSalle County. That order states that plaintiff "has a one-fourth interest in the Prairie Lake premises." This order was entered twenty-four years after the transaction in which plaintiff allegedly conveyed her entire interest in the property to Ralph Erickson. This order was also entered after the parties entered into their property settlement. Consequently, the Circuit Court order implies that the property settlement between plaintiff and Ralph Erickson granted plaintiff a one-fourth interest in the Prairie Lake Lodge despite the fact plaintiff conveyed her entire interest to Ralph Erickson in 1959. This property interest is sufficient to confer standing.
II. Statute of Limitations
The Seventh Circuit recently adopted a two-year statute of limitation period for civil RICO claims. Tellis v. United States Fidelity & Guaranty, 805 F.2d 741 (7th Cir.1986). The issue before this court revolves around the date the limitation period begins to run.
Defendants argue that the two-year limitation period begins to run once the underlying fraud is first discovered. Defendants contend that plaintiff's RICO claims arose and were discovered more than two years prior to the filing date of the Complaint. Defendants maintain that plaintiff was aware of Ralph Erickson's intent to deprive plaintiff of plaintiff's interest in the Lodge in 1981, four years before the Complaint was filed. Defendants submitted a copy of plaintiff's deposition wherein plaintiff allegedly admitted that she had a "gut feeling" that Ralph Erickson was attempting to deprive her of her proceeds from the sale of the Lodge to the sellers. Consequently, defendants believe plaintiff's claim is time-barred and should be dismissed.
Plaintiff responds with an uncompelling counter-argument. Plaintiff's total argument consists of the following two sentences:
[S]ince the plaintiff's RICO claim is founded upon a transaction that is alleged to have been accomplished on May 9, 1985, we see no need to add to what is set forth in Part A above [standing]. Clearly, the plaintiff's RICO complaint was timely filed.
Plaintiff's cursory presentation compels this court to look beyond plaintiff's memorandum while considering the instant motion.
In general, the two-year limitation period for a RICO claim begins to run when a plaintiff either discovers or should have discovered that he has sustained an injury. Bowling v. Founders Title Co., 773 F.2d 1175 (11th Cir.1985). In Bowling, the Eleventh Circuit rejected the district court's jury instruction that the statute of limitation *508 begins to run after the commission of the last predicate act. Instead, the Bowling court held that a RICO claim accrues when a plaintiff knows or should know that he has sustained an injury. The court's holding in Bowling follows the rule established in both the Eighth and Ninth Circuits. See Alexander v. Perkin Elmer Corp., 729 F.2d 576 (8th Cir.1984) and Compton v. Ide, 732 F.2d 1429 (9th Cir. 1984).
In the instant case, defendants' scheme to deprive plaintiff of her property interest in Prairie Lake Lodge began in 1981 and ended in 1985. Plaintiff knew on March 31, 1982 that Ralph Erickson intended to deprive plaintiff of her property interest in Prairie Lake Lodge. Plaintiff asserted this claim in her "Amended Petition for Relief from Final Judgment" before the Circuit Court of LaSalle County. Plaintiff may have known defendant's intention as early as 1981 as evidenced by her assertions in her original "Petition for Relief of Final Judgment."
This court finds that defendants engaged in one scheme comprised of multiple acts. These acts were designed to deprive plaintiff of her property interest in Prairie Lake Lodge. Plaintiff filed her initial federal RICO complaint on September 19, 1986. Plaintiff's filing date is approximately three and one-half years after she knew Ralph Erickson intended to deprive her of her property interest in Prairie Lake Lodge. Consequently, plaintiff failed to file her complaint within the two-year limitation period and thus is time-barred.
III. A Pattern of Racketeering Activity
Defendants argue that plaintiff failed to state a RICO claim. Specifically, plaintiff allegedly failed to plead the necessary pattern of racketeering activity and to plead the requisite relationship of this pattern to the alleged scheme of defendants to defraud plaintiff. In contrast, plaintiff contends she satisfied her burden of alleging defendant engaged in a pattern of racketeering activity.
This court finds that plaintiff failed to properly plead her RICO claims under § 1962(a) through (d). Plaintiff failed to set forth the requisite pattern of racketeering activity required for each RICO claim.
Section 1964 of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964, enables a private plaintiff to bring a civil rights suit based on a violation of § 1962. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). In such a case, a plaintiff acts in the capacity of a private attorney general.
A violation of § 1962(a) requires the receipt of income from a pattern of racketering, and the use of that income in the operation of an enterprise. Masi v. Ford City Bank and Trust Co., 779 F.2d 397, 401 (7th Cir.1985). A violation of § 1962(b) requires a person engaging in a pattern of racketeering activity to acquire or maintain an interest in an enterprise engaged in interstate commerce. A § 1962(c) violation requires a person employed by an enterprise to participate in the conduct of that enterprise's affairs through a pattern of racketeering activity. Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Finally, a § 1962(d) violation requires a person to conspire to violate any subsection of § 1962. In all sections, a crucial element of the claim is the existence of a pattern of racketeering activity. A pattern of racketeering activity requires at the barest minimum two predicate acts of racketeering activity. 18 U.S.C. § 1961.
The Seventh Circuit set forth the pleading requirements to properly allege a pattern of racketeering activity in Morgan v. Bank of Waukegan, 804 F.2d 970 (7th Cir. 1986). In Morgan, defendants made false representations which induced plaintiffs to invest money and pledge security in a speculative venture. The defendant bank agreed to lend money to the participants in the venture. In return, plaintiffs were persuaded to enter into a land trust agreement conveying a beneficial interest in their home to the bank. Two years later, when the venture defaulted, the individual defendants formed a new corporation and with the bank's consent purchased the initial venture's remaining assets. The same scenario was repeated two years later to *509 form another new corporation. Mailings were made in connection with the initial loan arrangement and the creation of both corporations. When this third corporation failed, the defendant bank foreclosed on plaintiffs' home.
The Morgan plaintiffs instituted an action alleging a RICO violation. Defendants moved to dismiss for failure to plead a pattern of racketeering activity. The Seventh Circuit held that plaintiffs successfully alleged a pattern of racketeering activity. The Morgan court required the predicate acts to demonstrate "both a continuity and relationship in order to constitute a pattern of racketeering activity." The court ruled that the plaintiffs had satisfied this requirement.
The Seventh Circuit adopted a new legal test to determine the existence of a pattern of racketeering activity. This test has a fact-oriented standard. The "relationship" prong of the Morgan test requires the predicate acts to be committed somewhat closely in time to one another, involve the same victim, or involve the same type of misconduct. The "continuity" prong requires predicate acts to occur at different points in time or involve different victims. Morgan at 975. To be sufficiently continuous to constitute a pattern of racketeering activity, the predicate acts must be ongoing over an identified period of time so that they can fairly be viewed as constituting separate transactions. Id.
In Morgan, the Seventh Circuit enunciated several relevant factors to evaluate continuity. These factors include the number and variety of predicate acts, the length of time over which these acts were committed, the number of victims, the presence of separate schemes, and the occurrence of distinct injuries. Id. at 975.
In the instant case, this court holds that plaintiff failed to satisfy the continuity prong of the Morgan test. This case involves only one victim. Plaintiff only suffered one injury on one occasion, the loss of her interest in Prairie Lake Lodge. Plaintiff only set forth one scheme designed to defraud plaintiff of her property interest in Prairie Lake Lodge. The predicate acts, while multiple, represents one scheme. This scheme necessarily ended after its single accomplishment. See Marks v. Pannell Kerr Forster, 811 F.2d 1108, 1112 (7th Cir.1987).
The facts before the Morgan court were distinguishable from the facts before the instant court. In particular, the goal of the Morgan defendants was not to deprive plaintiff of his property; defendants attempted to generate income via a speculative business venture which secured a bank loan using plaintiff's home as security for the loan. In addition, defendants' fraudulent acts resulted in two separate and distinct corporate formations held two years apart. These separate transactions were repeated over a several year time period resulting in independent, fraudulently-created occurrences. The Supreme Court's Sedima's "continuity plus relationship" requirement was therefore deemed to have been satisfied and plaintiff sufficiently alleged a pattern of racketeering activity. The RICO claim in Morgan was therefore allowed.
In contrast, the facts of the instant case do not reveal a pattern of racketeering activity. The multiple predicate acts presented by defendants are a series of acts designed to achieve one goal, the deprivation of plaintiff's property interest in Prairie Lake Lodge. These multiple acts do not take on the character of being separate and distinct schemes in time and place. The acts alleged relate to a single scheme to defraud a single victim and to inflict a single injury. This factual scenario simply fails to satisfy the continuity aspect of the pattern of racketeering activity required by the Supreme Court in Sedima and the Seventh Circuit in Morgan.
IV. Common Law Claims
In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the United States Supreme Court permitted nonfederal claims lacking independent federal jurisdiction to be adjudicated with closely related federal claims. Unlike the Gibbs Court, this court is confronted with a plaintiff who failed to state a federal claim. Plaintiff's common law *510 claims lack a jurisdictional foundation in light of this court's decision to dismiss plaintiff's federal claims in Counts I-IV. Accordingly, this court grants defendants' motion to dismiss Counts V and VI.
V. Interpleader
Petitioner Kenneth Votava moves this court to enter an order allowing him to interplead and adjudicate his rights. Votava is the ultimate buyer of Prairie Lake Lodge. This motion is moot in light of this court's decision to dismiss plaintiff's amended complaint.
CONCLUSION
This court grants defendants' motion to dismiss this case in its entirety. Counts I-IV are based on alleged RICO violations and are time-barred by the two-year statute of limitation. Moreover, Counts I-IV fail to state a RICO claim because plaintiff failed to plead that defendants engaged in a pattern of racketeering activity. In addition, Counts V and VI are dismissed for lack of federal subject matter jurisdiction. Finally, Votava's motion for interpleader is moot in light of this court's dismissal of plaintiff's amended complaint.
IT IS SO ORDERED.
NOTES
[1] This court need not consider defendants' impermissible collateral attack argument in light of this court's decision to dismiss the amended complaint on other grounds. If compelled, this court would probably reject defendants' argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265517/ | 341 Pa. Superior Ct. 534 (1985)
491 A.2d 1386
Maurice BELL and Helen Schweiker, Appellants,
v.
CITY OF PHILADELPHIA and Police Commissioner Joseph O'Neill and Officer James W. Gamble, Appellees.
Supreme Court of Pennsylvania.
Argued May 10, 1984.
Filed April 19, 1985.
*538 Irwin L. Gross, Philadelphia, for appellants.
Gabriel L. Bevilacqua, Philadelphia, for appellees.
*539 Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
WIEAND, Judge:
The principal issue in this appeal following a defense verdict in an action to recover damages for injuries caused by a shooting is whether it was error for the trial court to allow evidence of plaintiff's bad reputation for violence to show that he was probably the aggressor. Other issues raised in this appeal do not warrant lengthy discussion and will be disposed of summarily.
James W. Gamble, a police officer employed by the City of Philadelphia, completed his shift at the Juvenile Aid Division (JAD) about 3:30 a.m. and was standing on the corner at Castor and Frankford Avenues while waiting for his mother to pick him up and give him a ride home. Maurice Bell, who lived nearby, approached on foot after having spent several hours drinking at a neighborhood bar. He shouted a racial slur and told Gamble to get off his property. Gamble, in fact, was not standing on Bell's property. Bell entered his residence and Gamble returned to the place of his employment to call his mother and find out why she hadn't arrived. Learning that she was on her way, Gamble returned to the street corner to continue his wait. Bell emerged from his house, and an angry exchange between the men took place. Thereafter, Bell returned to his home, only to reemerge. This time he picked up a shovel and approached Gamble. The succeeding events are in dispute. Bell testified that Gamble swung at him with his nightstick, which he, Bell, parried with the shovel. Gamble, on the other hand, said that Bell had swung his shovel and that when he, Gamble, blocked it with his nightstick, the nightstick had broken. In any event, the nightstick was broken and Gamble retreated to the JAD building, pulling out his service revolver as he did so. Gamble testified that Bell struck him on the head as he, Gamble, entered the door of the building. He said that as he fell, he shot Bell in the leg. Bell kept coming forward, however, and kept striking Gamble with the shovel as *540 Gamble crawled up a flight of steps. When Gamble reached and opened another door, he fired two shots into Bell's body. Bell's version of these events was different. He said that he had not struck Gamble with the shovel and that three shots had been fired at him when he reached the second door. There were no disinterested eyewitnesses to the events of that morning; and, therefore, the credibility of the parties was an important issue for the jury to decide.
Bell was arrested on charges of aggravated assault, but he was acquitted by a jury on March 29, 1977. The present action by Bell and his alleged common-law wife to recover damages for an alleged assault and battery was commenced on October 19, 1977. On March 27, 1978, the parties stipulated that plaintiffs, appellants herein, could file an amended complaint within ten days. Appellants did not file an amended complaint within the time stipulated. Thereafter, on April 10, 1978, they filed an amended complaint alleging an additional count for malicious prosecution. The trial court sustained preliminary objections to this count and caused it to be stricken because it was brought more than one year after Bell's acquittal.[1] We perceive no error. This was in accord with existing law. See: Act of July 1, 1935, P.L. 503, No. 196, 12 P.S. § 51 (repealed effective June 27, 1978); Sicola v. First National Bank, 404 Pa. 18, 170 A.2d 584 (1961).[2] We reject appellants' argument that appellees[3] waived the defense of the statute of limitations merely because they agreed that appellants could file an amended complaint within ten days. *541 The agreement was intended to comply with Pa.R.C.P. 1033, which required filed consent of the adverse party or leave of court to file an amended pleading. By agreeing to allow an amended pleading, appellees did not waive any defenses available to a new cause of action which appellants set forth in their amended complaint.[4]
At trial on the complaint alleging an assault and battery, the trial court allowed each defendant three peremptory challenges. Appellants, who were given four peremptory challenges, complain that the two defendants received more peremptory challenges than they did. This was authorized by Pa.R.C.P. 221. There is no abuse of discretion evident. Moreover, appellants failed to argue this issue in the brief filed in the trial court in support of their motion for new trial. The issue, therefore, has not been preserved for appellate review. See: Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).
At trial, appellants called Gamble as of cross-examination. Gamble's counsel then examined the witness concerning matters inquired into during cross-examination. Gamble was asked: "And your mother got there within how much time after the incident?" At this point, appellants objected. When the trial judge asked the basis for the objection, counsel responded: "Beyond the scope of my examination; and . . . defendant's counsel is leading the witness." The trial court overruled the objection. We are satisfied that the question was not leading. The rules on leading questions are "liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness." Commonwealth v. Guess, 266 Pa.Super. 359, 375, 404 A.2d *542 1330, 1338 (1979), quoting Commonwealth v. Gurreri, 197 Pa.Super. 329, 332, 178 A.2d 808, 809 (1962). A review of the record discloses also that the question did not improperly exceed the scope of the inquiry made on cross-examination. When a witness with an adverse interest is called as for cross-examination, he may thereafter be questioned as to related matters inquired about during cross-examination. However, when the examination is designed to introduce a defense, the trial court should not allow it. Rogan Estate, 404 Pa. 205, 214-215, 171 A.2d 177, 180-181 (1961); Houston-Starr Co. v. Davenport, 227 Pa.Super. 186, 190, 324 A.2d 495, 497 (1974). The trial court's ruling on this question, therefore, was not erroneous.
After the objection had been overruled, the questioning of the witness continued. Appellants argue on appeal that Gamble was then asked a series of questions by his own counsel which were leading. However, appellants made no objection to any succeeding question on grounds that it was leading or, indeed, for any other reason. Any defect in the form of these questions, therefore, was waived. To avoid waiver, a party must make a timely objection. Rubenstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 477 n. 2, 368 A.2d 819, 821 n. 2 (1976). Timeliness requires a specific objection at the proper stage in the questioning of a witness. Commonwealth v. Hughes, 268 Pa.Super. 536, 539 n. 3, 408 A.2d 1132, 1134 n. 3 (1979). See also: Tagnani v. Lew, supra; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). A specific objection to one leading question is not a continuing objection to the form of later questions. If appellants believed counsel's questions to be leading, they were required to enter an appropriate objection. In this manner, the form of the question asked could have been submitted to the court for a ruling and the form, if defective, could have been corrected. Appellants could not properly object to the form of counsel's questions for the first time after examination of the witness had been completed.
*543 Bell's version of the circumstances under which he was shot varied substantially from the version testified to by Gamble. There were no disinterested witnesses; and the credibility of the parties, therefore, was a crucial issue. To attack Bell's credibility, the defense was permitted to show that in 1967 Bell had been convicted on two counts of burglary and larceny. In the one instance, he had stolen a check-writing machine and had used it to write bad checks. In the other, he had broken into a business establishment from where he had stolen payroll checks. These were crimes of dishonesty. Whether Bell's convictions were admissible to attack his credibility was dependent upon the exercise of a sound discretion by the trial court. Keough v. Republic Fuel and Burner Co., 382 Pa. 593, 596, 116 A.2d 671, 672-673 (1955). "In the exercise of its discretion the trial court must view the various aspects of the trial and determine whether the probative value of the offer is outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury, and must consider also the remoteness of the convictions in question from the date of the offer." Id., 382 Pa. at 596-597, 116 A.2d at 673. See also: Flowers v. Green, 420 Pa. 481, 485-486, 218 A.2d 219, 221 (1966). We cannot say that Bell's convictions in this case were so remote as to be wholly irrelevant. Because the convictions were for nonviolent offenses, moreover, it was unlikely that evidence thereof would prejudice appellants in the presentation of their substantive claim for damages caused by a shooting. Dishonesty did not equate with violence and aggressiveness. We conclude, therefore, that the trial court did not abuse its discretion by allowing the jury to receive and consider evidence of prior convictions of burglary to attack Bell's credibility.
The defense was also permitted to show that among Bell's neighbors he had a bad reputation for argumentativeness, combativeness and violence. Bell's reputation was tendered by the defense as substantive evidence tending to show that Bell had been the aggressor. There was no *544 evidence that Gamble knew Bell prior to the night in question. Therefore, it was not contended that Gamble had been aware of Bell's belligerence. Appellants argue that the trial court erred in allowing evidence of Bell's bad reputation for violence.
This issue has not been waived. It was discussed in chambers by counsel and the trial judge, and the trial judge ruled that Bell's reputation would be received to show his propensity for violence. His reputation was held to be relevant to support appellees' contention that Bell had been the aggressor and that Gamble had shot in self-defense. Appellants' counsel took exception to the court's ruling, and the trial judge acknowledged the exception. Appellants were not required to renew their objection when counsel returned to the courtroom. Appellants' objection was not waived because they then agreed to enter a stipulation regarding the testimony of approximately ten reputation witnesses. This stipulation, when read to the jury, made it unnecessary to produce the witnesses for testimony in open court. "[O]nce an objection has been properly made, counsel is not obliged to repeatedly voice objections in a tendentious manner." Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 461, 473 A.2d 155, 159 (1984). Because the issue has not been waived, we proceed to the merits thereof.
The law in criminal cases, at least since Alexander v. Commonwealth, 105 Pa. 1 (1884), has been that evidence of a shooting victim's reputation for hostility and violence are admissible on the issue of whether he was the aggressor. See: Commonwealth v. Amos, 445 Pa. 297, 302, 284 A.2d 748, 751 (1971). In civil cases, however, it has been said that "evidence of the character of the parties, except where the character is directly in issue, is not admissible." Porter v. Seiler, 23 Pa. 424, 430 (1854). Only where, because of "the nature of the issues such evidence is of special importance" is reputation evidence admissible. American Fire Insurance Co. v. Hazen, 110 Pa. 530, 537, 1 A. 605, 608 (1885). "It is the nature of the issue itself, and not the consequences to be apprehended from the result, *545 that puts character in issue. . . . To be in issue in a technical sense, character must be of particular importance and therefore a material fact in the case." Greenberg v. Aetna Insurance Co., 427 Pa. 494, 498, 235 A.2d 582, 584 (1967). This general rule has been held applicable in tort actions based on an alleged assault and battery. Porter v. Seiler, supra. However, the issue in that case was not which party had been the aggressor. Where self-defense is an issue, no appellate court in Pennsylvania, so far as our research has disclosed, has ruled on the admissibility of a party's bad reputation for violence.
Most jurisdictions which have considered the issue, however, have recognized "that where self-defense or aggression is an issue in a civil action for assault and battery, evidence of the bad reputation of the plaintiff for violence is admissible, frequently either to help determine which party may have been the aggressor, or to show the defendant's fear and consequent justification for taking an aggressive stance, at least where it is shown that the defendant had knowledge of the plaintiff's reputation." Annot., 91 A.L. R.3d 718, 747 (1979) (footnotes omitted) (emphasis added).
We are of the opinion that this is the better view. Where, as here, the issue is which party was the aggressor, the bad reputation of the plaintiff for violence is of special importance. Bell's character in this case was directly in issue. To a greater extent than in other civil actions involving criminal conduct, it was important in this case to know the disposition of the parties. See: McCormick, Handbook of the Law of Evidence § 192, at 571 n. 5 (3d ed. 1984). Moreover, it is difficult to comprehend why, where the issue is the same, the rule should be different in civil cases than it is in criminal cases.
In the absence of a contrary mandate by the Supreme Court, therefore, we adopt the majority rule and hold that the trial court properly allowed evidence of Bell's reputation in the community for argumentativeness, bad *546 temper and violence. This evidence was relevant to show Bell's propensity for aggressiveness.
The trial court carefully instructed the jury regarding the credibility of witnesses. Included was a specific reference to the consideration to be given to the interest, if any, which a witness had in the outcome of the case. This was adequate. The court was not required to adopt the point for charge submitted by appellants.[5] A trial judge is not required to adopt the exact language of a requested point for charge so long as the form of expression chosen adequately and clearly covers the subject. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 242, 420 A.2d 514, 521 (1980). Similarly, the trial court did not err when it refused to single out police officers by instructing the jury that their testimony was entitled to no special weight. Where credibility of witnesses has been adequately covered by the court's jury instructions, a special charge regarding the credibility of police officers is unnecessary. Cf. Commonwealth v. Wise, 298 Pa.Super. 485, 491-492, 444 A.2d 1287, 1290 (1982).
Judgment affirmed.
NOTES
[1] The defense of the statute of limitations is properly raised by way of answer and new matter. However, if the plaintiff does not raise any procedural objection to its insertion in preliminary objections, then the plaintiff waives the error and the court may determine the statute of limitations issue on preliminary objections. 2 Goodrich-Amram 2d § 1028(c):3 (1976). Appellants in this case raised no objection to the procedural defect; and, therefore, the court could properly resolve the applicability of the statute of limitations on preliminary objections.
[2] The Judicial Code, at 42 Pa.C.S. § 5524, has extended the statute of limitations to two years for malicious prosecution actions.
[3] Appellees are Gamble and the City of Philadelphia, which was alleged to be vicariously liable for the actions of Gamble.
[4] It may also be observed that appellant failed to file a timely appeal from the order dismissing his cause of action for malicious prosecution. That order was a final determination of the cause of action stated therefor and was immediately appealable. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).
[5] Appellants requested that the jury be specifically instructed that police officers, as employees of the City of Philadelphia, were "interested witnesses." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265525/ | 163 Cal.App.4th 495 (2008)
GREENTREE FINANCIAL GROUP, INC., Plaintiff and Respondent,
v.
EXECUTE SPORTS, INC., Defendant and Appellant.
No. G039326.
Court of Appeals of California, Fourth District, Division Three.
May 6, 2008.
*497 Jackson DeMarco Tidus Petersen & Peckenpaugh, Adorno Yoss Alvarado & Smith and William M. Hensley for Defendant and Appellant.
Alan L. Brodkin & Associates and Alan L. Brodkin for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiff sued defendant for breach of contract, seeking a sum certain. Before trial, the parties agreed to settle the case for less than half the amount sought by the complaint, with defendant making installment payments. The terms of the settlement agreement provided that if defendant failed to make a payment, plaintiff could file a stipulation for entry of judgment, with the amount of the judgment being the entire amount sought in the complaint, as well as prejudgment interest, attorney fees, and costs. Defendant failed to make the first payment, and the trial court entered judgment pursuant to the terms of the parties' stipulation for entry of judgment.
(1) Under consistent authority, the judgment constitutes an unenforceable penalty because it bears no reasonable relationship to the range of actual damages the parties could have anticipated would flow from a breach of their settlement agreement. We publish this opinion to reaffirm that the rule set forth in Sybron Corp. v. Clark Hosp. Supply Corp. (1978) 76 Cal.App.3d 896 *498 [143 Cal.Rptr. 306] (Sybron) continues to apply after the intervening amendment to Civil Code section 1671. We reverse and remand with directions to the trial court to enter judgment in the amount specified in the settlement agreement, plus postjudgment interest and costs.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On April 11, 2006, Greentree Financial Group, Inc. (Greentree), sued Execute Sports, Inc. (ESI), for breach of contract. The complaint alleged ESI had failed to pay $45,000 due under the contract in consideration of financial advisory services provided by Greentree. ESI answered the complaint, asserting affirmative defenses, including, but not limited to, failure to mitigate and prior material breach of the contract by Greentree.
On the day set for trial, the parties filed a notice of settlement with the court. The settlement was memorialized in a stipulation for entry of judgment (the stipulation). The stipulation provided that ESI would pay Greentree a total of $20,000, in two installments. If ESI defaulted on either one of its installment payments, Greentree would be entitled to "immediately have Judgment entered against [ESI] for all amounts prayed as set forth in [Greentree]'s Complaint in the above-entitled action, including interest, attorney fees and costs, less any amounts already paid by [ESI] . . . ."
ESI defaulted on the first installment payment of $15,000. On July 19, 2007, correctly anticipating Greentree would seek entry of judgment, ESI filed an opposition to entry of an excessive judgment. On the same day, Greentree submitted to the court a proposed judgment for $61,232.50, consisting of $45,000 in damages, $13,912.50 in prejudgment interest, $2,000 in attorney fees, and $320 in costs. Greentree also submitted a declaration from its attorney of record, attaching a copy of the stipulation and explaining the nature of ESI's default.[1] Judgment in the amount of $61,232.50 was entered on August 1, 2007. ESI timely appealed from the judgment.
DISCUSSION
(2) ESI contends the $61,232.50 judgment, entered after ESI failed to make the $15,000 installment payment under the terms of the stipulation, *499 constitutes enforcement of an illegal penalty. Greentree contends, to the contrary, the amount was a valid liquidated damages provision in a contract between the parties. Although the stipulation does not use the terms "liquidated damages" or "penalty," we look to its substance in determining its meaning. (Weber, Lipshie & Co. v. Christian (1997) 52 Cal.App.4th 645, 656 [60 Cal.Rptr.2d 677]; Sybron, supra, 76 Cal.App.3d at p. 902, fn. 3.) Whether the amount to be paid upon breach of a contractual term should be treated as liquidated damages or as an unenforceable penalty is a question of law, which we review de novo. (Harbor Island Holdings v. Kim (2003) 107 Cal.App.4th 790, 794 [132 Cal.Rptr.2d 406].)
(3) In determining whether the terms of the stipulation amount to an illegal penalty, we start with the language of Civil Code section 1671, subdivision (b): "[A] provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made." In interpreting this statute, our Supreme Court has noted: "A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under section 1671[, subdivision ](b), if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. The amount set as liquidated damages `must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.' [Citation.] In the absence of such relationship, a contractual clause purporting to predetermine damages `must be construed as a penalty.'" (Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 977 [73 Cal.Rptr.2d 378, 953 P.2d 484] (Ridgley).)
Greentree argues the amount set forth in the stipulation was reasonably related to the damages it suffered as a result of ESI's breach of the underlying contract. But the breach we are analyzing is the breach of the stipulation, not the breach of the underlying contract. (See Sybron, supra, 76 Cal.App.3d at p. 902.) The amount required to be paid under the terms of the stipulation was $20,000. Admittedly, ESI failed to pay the first installment when due, and therefore breached the stipulation.
Greentree and ESI did not attempt to anticipate the damages that might flow from a breach of the stipulation. Rather, they simply selected the amount Greentree had claimed as damages in the underlying lawsuit, plus prejudgment interest, attorney fees, and costs. But the appellate record contains nothing showing Greentree's chances of complete success on the merits of its *500 casethe record contains only the complaint, the answer, and the stipulation. In the stipulation, "[e]ach party disclaims any admission of wrongdoing, fault, liability, or violation of law." The lack of a guarantee of success at trial may explain, at least in part, why Greentree was willing to accept in settlement less than half the amount demanded in the complaint.
(4) Also, the $61,232.50 amount in the judgment bears no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of the stipulation to settle the dispute for $20,000. "[D]amages for the withholding of money are easily determinablei.e., interest at prevailing rates . . . ." (Sybron, supra, 76 Cal.App.3d at p. 900.) The amount of the judgment, however, was more than triple the amount for which the parties agreed to settle the case.
(5) In a slightly different context, late payment fees on loans are designed to encourage the borrower to make timely payments, and to compensate the lender "for its administrative expenses and the cost of money wrongfully withheld." (Garrett v. Coast & Southern Fed. Sav. & Loan Assn. (1973) 9 Cal.3d 731, 739-740 [108 Cal.Rptr. 845, 511 P.2d 1197] [late payment fee which was calculated as percentage of unpaid principal balance had little or no relationship to lender's actual loss, and therefore was an illegal penalty].) Here, the judgment would have been enforceable if it had been designed to encourage ESI to make its settlement payments on time, and to compensate Greentree for its loss of use of the money plus its reasonable costs in pursuing the payment. The amount of the judgment, which awarded Greentree approximately $40,000 more than the settlement amount, does not merely compensate Greentreeit rewards Greentree by penalizing ESI. (6) "If the sum extracted from the borrower is designed to exceed substantially the damages suffered by the lender, the provision for the additional sum, whatever its label, is an invalid attempt to impose a penalty inasmuch as its primary purpose is to compel prompt payment through the threat of imposition of charges bearing little or no relationship to the amount of the actual loss incurred by the lender." (Id. at p. 740.)
The facts of Sybron are similar to those of the present case. A seller of hospital beds sued the buyers for almost $144,000; the buyers counterclaimed, arguing the beds were defective. (Sybron, supra, 76 Cal.App.3d at p. 898.) The parties reached a settlement, under which the buyers would pay $72,000 plus interest in 12 monthly installments. (Ibid.) The settlement agreement provided that if the buyers defaulted, a stipulated judgment for *501 $100,000 could be entered. (Ibid.) The buyers did default, and the stipulated judgment was entered by the trial court. (Ibid.)
On appeal, the court determined the stipulated judgment constituted an unenforceable penalty. The appellate court acknowledged, "[c]ertainly there is paperwork and time involved in the collection of an installment obligation. The creditor is entitled to bargain that if the installment debtor imposes upon the creditor by a continuing course of dilatory payment the creditor may accelerate and collect the entire obligation, plus a reasonable amount to compensate for delay." (Sybron, supra, 76 Cal.App.3d at p. 903.) But the court concluded the parties' liquidated damages figure, and the trial court's judgment enforcing it, "failed to take into account the need for proportion in damagesthe critical item in evaluating penalty and forfeiture." (Ibid.) The stipulated judgment of $100,000, entered after the buyers defaulted on installment payments totaling $30,000 out of a settlement agreement to pay $72,000, could not be enforced. (Ibid.) To do so "would result in a $28,000 penalty for delay in payment of $30,000, a penalty which bears no rational relationship to the amount of actual damages suffered by respondent." (Ibid.)[2]
The same is true here. The stipulated judgment of $61,232.50 would result in a penalty assessment of approximately $40,000 more than the total $20,000 due under the stipulation. A late payment penalty fee of approximately $40,000 bears no reasonable relationship to any actual damages that might flow from ESI's failure to make the first installment payment. (See Ridgley, supra, 17 Cal.4th at p. 981 ["the charge of six months' interest on the entire principal, imposed for any late payment or other default, cannot be defended as a reasonable attempt to anticipate damages from default"]; Garrett v. Coast & Southern Fed. Sav. & Loan Assn., supra, 9 Cal.3d at p. 740 [interest amount charged on entire obligation instead of solely on missed installment is unenforceable penalty].) The judgment must therefore be reversed.
*502 Greentree attempts to distinguish Sybron and several other cases cited by ESI on the ground that in those cases, the defaulting party had made one or more payments, while in this case ESI failed to make any payments. The key in determining whether the damages are a penalty, however, is if there is a reasonable relationship between the amount to be paid and the damages. Indeed, the terms of the stipulation provided the same penaltyentry of judgment for $61,232.50 (less any amounts paid)whether ESI defaulted on the initial $15,000 installment payment, or the second and final $5,000 installment payment.
Aside from trying to distinguish the consistent authority supporting reversal, Greentree has failed to cite any statutory or case authority supporting its view. Greentree cannot cite any such authority because it simply does not exist.
With regard to the disposition of this case, a question arises as to the severability of the penalty provision from the remainder of the stipulation. At oral argument, both parties agreed the provision was severable. We need not reach the issue of severability, but we do note that Civil Code section 1671 addresses the validity of a liquidated damages provision, rather than the validity of a contract containing such a provision. None of the cases we have cited, ante, directly addresses severability, but their dispositions either remove the penalty provision from the judgment (Sybron, supra, 76 Cal.App.3d at p. 903), or analyze the penalty provision as separate and distinct from the remainder of the parties' contract (Ridgley, supra, 17 Cal.4th at pp. 973-974 [trial court "correctly held the penalty to be unenforceable"]; Harbor Island Holdings v. Kim, supra, 107 Cal.App.4th at p. 793 [trial court correctly entered judgment awarding damages, and correctly found provision for doubled rent was unenforceable penalty]).
The stipulation does not contain any provision for an award of attorney fees or prejudgment interest, although the judgment included $2,000 in attorney fees and $13,912.50 in prejudgment interest. The $20,000 settlement sum in the stipulation is unallocated, and may or may not have included Greentree's claimed attorney fees and prejudgment interest. We find no basis for awarding Greentree its attorney fees and prejudgment interest in addition to the stipulated settlement sum. Greentree is entitled to recover its costs in the trial court (Code Civ. Proc., § 1032), and postjudgment interest.
*503 DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to reduce the judgment against ESI to $20,000, plus postjudgment interest and costs. In the interests of justice, neither party shall recover costs on appeal.
Moore, Acting P. J., and Ikola, J., concurred.
NOTES
[1] On our own motion, we augment the record on appeal with the declaration of Alan L. Brodkin in support of entry of judgment, filed August 1, 2007, in Greentree Financial Group, Inc. v. Execute Sports, Inc. (Super. Ct. Orange County, 2007, No. 06CC04986). (Cal. Rules of Court, rule 8.155(a)(1)(A).)
[2] Sybron was decided under former section 1671 of the Civil Code. (See Sybron, supra, 76 Cal.App.3d at p. 899, fn. 2.) The former version of the statute provided contract clauses liquidating damages in anticipation of a breach were only enforceable if determining actual damages was impracticable or extremely difficult (see Civ. Code, former §§ 1670, 1671); this strict standard now applies only in consumer goods and services contracts and residential property leases (id., § 1671, subds. (c), (d)). The amendment of the statute does not save a judgment that imposes a penalty bearing no proportional relationship to the damages that might actually flow from a breach. (Ridgley, supra, 17 Cal.4th at pp. 976-977.) Indeed, the Supreme Court cited Sybron with approval in a case analyzing the postamendment version of section 1671. (Ridgley, supra, 17 Cal.4th at p. 978.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265494/ | 163 Cal.App.4th 620 (2008)
ERIC W. LIEN, Plaintiff, Cross-defendant and Respondent,
v.
LUCKY UNITED PROPERTIES INVESTMENT, INC., et al., Defendants, Cross-complainants and Appellants.
No. A117110.
Court of Appeals of California, First District, Division Five.
May 30, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*622 Law Offices of Mattaniah Eytan and Mattaniah Eytan for Defendants, Cross-complainants and Appellants.
Sam Walker for Plaintiff, Cross-defendant and Respondent.
OPINION
SIMONS, J.
In July 2006, Eric W. Lien (Lien) filed a malicious prosecution action against appellants Lucky United Properties Investment, Inc., and Chin Teh Shih (also known as Jessie Woo), as trustee for the Woo Family 2000 Trust. In January 2007, appellants responded by filing a crosscomplaint, also for malicious prosecution, against Lien, Pi-Cheng Yen (Yen), and their attorney, Albert Lee. The competing claims grew out of a lawsuit originally filed in 1999, involving a dispute over the purchase of real property *623 in San Francisco.[1] Lien successfully filed an anti-SLAPP (strategic lawsuit against public participation) motion to strike appellant's cross-complaint (Code Civ. Proc., §425.16), and appellant appeals that ruling. In the published portion of our opinion we reject appellant's contention that, under DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562 [92 Cal.Rptr.2d 755] (DuPont), the trial court erred by failing to issue a statement of decision supporting its order granting the anti-SLAPP motion. In the unpublished portion, we reject appellant's other contentions.
BACKGROUND[*]
.....................................................................
DISCUSSION[*]
......................................................................
I., II.[*]
.......................................................................
III. Statement of Decision
Appellants argue that the trial court erred in refusing to issue a statement of decision, and this error requires reversal. We disagree.
(1) Code of Civil Procedure section 632 states that, "upon the trial of a question of fact," the court must issue "a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party." (Italics added.) The requirement of a written statement of decision generally does not apply to an order on a motion, even if the motion involves an evidentiary hearing and even if the *624 order is appealable. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [102 Cal.Rptr.2d 662].)
Appellants rely on DuPont, supra, 78 Cal.App.4th 562 to argue that a statement of decision must accompany an order granting an anti-SLAPP motion. In DuPont, the court held that the defendant drug manufacturer's alleged false statements in its advertising and public relations efforts constituted acts in furtherance of the defendant's right of petition or free speech in connection with a public issue, and therefore the first prong of the anti-SLAPP statute had been satisfied. The court further held that, because the trial court had erroneously concluded the first prong of the statute had not been met, remand was necessary to allow the court to determine whether the second prong of the statute had been satisfied, that is, whether the plaintiffs had established a probability of prevailing. (DuPont, at pp. 565-568.) In the introduction to its opinion, the court stated that if the trial court's determination on remand "results in a judgment striking the complaint, [it] should be supported by a statement of decision." (Id. at p. 564.)
(2) We have reservations about DuPont's imposition of a requirement for a statement of decision when a trial court grants an anti-SLAPP motion. First, the anti-SLAPP statute, Code of Civil Procedure section 425.16, contains no such requirement. In addition, DuPont did not cite any authority for departing from the general rule that a statement of decision does not apply to an order on a motion, and did not repeat this requirement in the disposition. (DuPont, supra, 78 Cal.App.4th at pp. 564, 569.) Further, the court's statement is dicta that has not been adopted by any subsequent case.
(3) Courts have created exceptions to the general rule limiting statements of decision to trials. An examination of these cases is instructive. "In determining whether an exception should be created, the courts balance `"(1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings." [Citation.]' [Citation.]" (In re Marriage of Askmo, supra, 85 Cal.App.4th at p. 1040.) In Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660-662 [64 Cal.Rptr.2d 217], for example, the court held that a statement of decision is required following a motion to amend judgment to add a judgment debtor on an alter ego theory. The court reasoned that important interests were at stake, *625 as the motion would impose liability on an individual "for a substantial monetary judgment upon the trial of a case in which [the individual] was neither named nor served as a defendant." (Id. at p. 661.) The court further reasoned that in resolving the motion, the court "necessarily `tried' ... issues of fact" related to the alter ego theory, and noted that the absence of factual findings had made review problematic. (Ibid.) Courts have also created an exception for proceedings involving the custody of minors. (In re Rose G. (1976) 57 Cal.App.3d 406, 418 [129 Cal.Rptr. 338] ["[i]n custody-of-minors proceedings, the issues at stake are of such tremendous consequences that findings of fact and conclusions of law as required by section 632 of the Code of Civil Procedure must be considered applicable even though the proceeding is denominated a `special proceeding'"].)
Anti-SLAPP motions often place important interests at stake, but they are distinguishable from those motions that have been declared exceptions to the general rule recited in section 632 of the Code of Civil Procedure. Although the court considers evidentiary submissions in deciding an anti-SLAPP motion, it does not "try" issues of fact. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 [12 Cal.Rptr.3d 54, 87 P.3d 802].) In deciding the motion, "the court does not weigh the credibility or comparative probative strength of competing evidence," but instead "should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733]; accord, Zamos, at p. 965.) Furthermore, the absence of factual findings has not precluded effective review. These factors weigh heavily against creating the exception sought by appellants, and we decline to depart from the general rule that a statement of decision is not required for an order on a motion.
(4) In any event, appellants fail to explain why the order issued by the trial court is inadequate. After the hearing, the trial court issued a one-page written order stating that appellants had not shown a likelihood of success on the merits on either cause of action for malicious prosecution and set forth its reasons for so concluding. In addition, the court stated in the order that Woo's "request for a further statement of decision is denied." Thus, although the document is entitled an "order," it is apparent that the court considered this document to be a statement of decision and had concluded no further statement of decision was required. Appellants never argue that this statement of decision was inadequate, and we decline to find it so.
*626 DISPOSITION
The order granting the motion to strike is affirmed. Lien is entitled to his costs on appeal.
Jones, P. J., and Needham, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105 and 8.1110, the Background, Discussion and parts I. and II. of this opinion are not certified for publication.
[1] The facts relevant to the underlying dispute are set out in considerable detail in our unpublished opinion, Woo v. Lien (Oct. 2, 2002, A094960), and we will not repeat them in full here.
[*] See footnote, ante, page 620. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265509/ | 62 Md. App. 670 (1985)
491 A.2d 587
JOHN SMITH, JR.
v.
STATE OF MARYLAND.
No. 485, September Term, 1984.
Court of Special Appeals of Maryland.
May 8, 1985.
John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Richard D. Warren, State's Atty. for Wicomico County and Davis R. Ruark, Deputy State's Atty. for Wicomico County, Salisbury, on brief), for appellee.
Submitted before ROSALYN B. BELL, KARWACKI and ROBERT M. BELL, JJ.
ROSALYN B. BELL, Judge.
John Smith, Jr., was tried, convicted and sentenced by the Circuit Court for Wicomico County. The charges against him included a number of sex offenses and assault-related incidents involving three members of his family.
Smith appeals and raises these questions:
"1. Was Appellant denied a determination of his competency to stand trial that satisfied the requirements of due process of law?
"2. Did the trial court lack jurisdiction to try and to sentence Appellant for child abuse?
"3. Must Appellant's conviction for second degree rape be vacated because it is based upon an act that also resulted in an incest conviction?"
We affirm the decision of the trial court, with the exception of one count. Criminal Information No. 12435 charged Smith with: (1) three counts of incest and one count of child abuse concerning Mary Pearl Smith, and (2) two counts of incest involving Rosetta Smith. He was charged by Criminal Information No. 12436 with five assault-related offenses. Finally, Criminal Information No. 12437 contained allegations of second degree rape, second degree sex offense, incest and assault and battery upon Roberta Smith. At a bench trial on March 20 and March 27, 1984, the court found Smith: (1) guilty of all counts under Criminal Information No. 12435; (2) not guilty of all charges under Criminal Information No. 12436; and (3) guilty of second degree rape and incest in Criminal Information No. 12437. The second degree sex offense and assault and battery merged into other counts.
Mary Pearl Smith, appellant's daughter and one of the victims in Criminal Information No. 12435, was born on April 5, 1954. She testified that as a result of her sexual intercourse with appellant in 1969, she gave birth to a child, Roberta Smith (who is the victim in Criminal Information No. 12437). Ms. Smith told the court that she gave birth to a second daughter-granddaughter by appellant, named Mary Christmas Smith in 1977.[1] Mary Pearl Smith recounted that she had intercourse with her father two to three times per week over the years. At the time of trial, she had last had sexual relations with her father in October 1983. She said that when the first incident occurred, she complained to her mother. Her father threatened her when he learned of the complaint and told her that he would kill both Mary Pearl and her mother if she told anyone about the incidents. Ms. Smith knew that appellant also had sexual intercourse with her sister and explained that "you did it or you'd get your ass whipped."
Rosetta Smith, Mary Pearl Smith's sister and another daughter of appellant, related that she began to have sexual intercourse with appellant when she was between 11 and 12 years old and that this continued on a regular basis until she left home. According to Rosetta, she engaged in sexual intercourse with her father approximately twice a week, sometimes more. As a result of these activities, she became pregnant and Cindy Lois Smith was born in February 1970. The relationship continued and she gave birth to Roberta Smith in September 1971. Rosetta stated that she did not put appellant's name on the birth certificate when Cindy was born because her father had indicated he would "whup" her if she used his name. Upon further questioning, Rosetta said she left home "because she was tired of being threatened and hit," and because Cindy had reached the age that she, Rosetta, had been when first molested and did not want the same thing to happen to her daughter.
Roberta Smith, Mary Pearl's daughter and appellant's daughter-granddaughter, alleged that she had sexual intercourse with appellant in August 1983, when she was 13 years old, and became pregnant as a result. As related by Roberta, appellant forced her to have intercourse with him every day or every other day. These matters came to light because of her pregnancy.
Appellant denied being the father of Roberta Smith and denied having sexual relations with his daughters.
On rebuttal, John Smith, appellant's son and the brother of Mary Pearl and Rosetta, testified that he had seen his father engage in intercourse with both of his sisters.
The court imposed concurrent sentences of ten years each on the convictions in Criminal Information Nos. 12436 and 12437. For each conviction in Information No. 12435, it imposed concurrent sentences of five years, to run consecutively to the ten-year sentences in Nos. 12436 and 12437.
COMPETENCE
At the start of the trial, counsel for appellant withdrew the prior plea of not guilty by reason of insanity in light of the mental examination and report of Dr. Reeves. A plea of not guilty was entered and a jury trial waived. The court then questioned appellant in detail about his understanding of a jury trial and whether he waived it voluntarily. Satisfied with appellant's answers, the trial judge heard the testimony.
The first witness, Mary Pearl Smith, was interrupted by appellant several times during her testimony. The court cautioned him and he responded appropriately. At the conclusion of the case-in-chief, appellant testified and specifically denied all the allegations made. He also denied ever having been a patient in a mental hospital. After both sides rested, the court announced that, because of the strange circumstances and conflicting indications of whether appellant had been committed to a mental institution,[2] it would continue the case to inquire about the details.
There is a presumption that a person is competent to stand trial. Hill v. State, 35 Md. App. 98, 369 A.2d 98 (1977). An individual is incompetent to stand trial if he is unable "(1) To understand the nature or object of the proceeding; or (2) To assist in one's defense." Md. Health General Code Ann. § 12-101(d) (1982, 1984 Cum. Supp.).
Appellant points to Hill v. State, supra, to support his position that due process requires not only the recognition that competency is a continuing consideration in a trial, but also that a judge must remain continually aware of the issue.
"[W]henever the issue of competency of an accused to stand trial is raised during the course of a jury trial, the trial judge must determine upon testimony and evidence presented on the record ... whether the accused `is unable to understand the nature or the object of the proceedings against him or to assist in his defense.' The provision of [Sec. 12-102(a) of the Health General Article] that the court must make determination `upon testimony and evidence presented on the record' is mandatory.
"Unless and until the trial court makes a determination beyond a reasonable doubt upon testimony and evidence presented on the record that the accused is able to understand the nature or the object of the proceeding against him and to assist in his defense, the trial may not begin or if begun may not continue." (emphasis in original).
35 Md. App. at 104-05, 369 A.2d at 102.
With this predicate, appellant posits that the court was warranted in raising the issue of competence, but that two violations of his rights then occurred: (1) The court gathered and evaluated the evidence outside the presence of defendant and without providing him an opportunity to confront and cross-examine the witnesses who presented it; and (2) The court did not inquire into or expressly rule on the two-pronged test for incompetency.
We agree with appellant's statement of the law, but not with his perception of what occurred in this case. Counsel for appellant did not suggest at any time that his client was unable to assist in his defense, nor did he indicate that his client did not understand the nature or object of the proceedings. At one point, appellant voiced his objection to one of the victims' statements. Counsel seeks to rely on that outburst to show incompetence. On the contrary, however, the very outburst indicates appellant's understanding of the proceedings and his competence. Counsel also points to what he characterizes as appellant's rambling comments to the court. This ignores appellant's coherent replies during his testimony in which he denied the allegations made against him and placed the responsibility for Mary Pearl's and Rosetta's pregnancies on others. Furthermore, if counsel had become concerned that his client was unable to assist in the defense, he could and no doubt would have mentioned it to the court.
In a discussion between the court and counsel after the testimony, the court expressed concern that it remained uncertain whether appellant had stayed in a mental hospital. The court reiterated the doctor's opinion that Smith was competent to stand trial, but referred again to the hospitalization, stating:
"... I was just wondering if there had been any information on it."
The Deputy State's Attorney advised the court that the officer had checked with the family and that they were unaware of any such hospitalization. The colloquy concluded with the court saying
"Gentlemen, I know it's irregular, but I am going to defer ruling in this case until I check out a couple of things. I am going to try to find out whether this man has been in the hospital in the past before I rule."
Md. Health General Code Ann. § 12-103(a) (1982, 1984 Cum.Supp.) provides in pertinent part:
"If, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial."
In the case sub judice, neither appellant nor his counsel alleged incompetence. The only other way the issue could arise was if the court made the preliminary triggering decision that appellant appeared incompetent to stand trial, but the court did not make that determination. In fact, when trial resumed on March 27, 1984, the court explained its concern:
"My hesitancy about this, you will recall when we heard the evidence last week, I think I fell into the trap that I often accuse defense-oriented psychiatrists of falling into, the idea that anybody who does things such as this must have some mental problem, because although the defendant himself said that he had not been in any mental institution, there has been some confusion about that to start with, and, frankly, I wanted to satisfy myself that he was not a mental patient, and basically I have satisfied myself of that."
Since appellant's lack of competence to stand trial was not effectively raised, the alleged violations of due process could not have occurred.
COUNT VI OF CRIMINAL INFORMATION NO. 12435
Count VI, labelled "CHILD ABUSE" on the cover page of Criminal Information No. 12435, alleged that in January 1969, appellant:
"... feloniously, wilfully and maliciously abuse[d] Mary Pearl Smith, a minor child under the age of eighteen ... while having the care, custody and responsibility for [her] supervision...."
Immediately below this charge, the State's Attorney cited Md.Code Ann., Art. 27 § 35A (1957, 1971 Repl.Vol.).
Appellant asserts that, because Art. 27 § 35A did not become effective until July 1, 1970, Count VI failed to charge any cognizable offense and the court lacked jurisdiction to try him for child abuse. Furthermore, he claims that no Maryland statute prior to § 35A designated "child abuse as a criminal offense." Thus, appellant urges that because amendments to penal laws cannot operate retroactively, see Oberlin v. State, 9 Md. App. 426, 435, 265 A.2d 275, 280 (1970), his conviction and sentence on Count VI must be vacated. See Pedzich v. State, 33 Md. App. 620, 624-25, 365 A.2d 567, 569-70, cert. denied, 279 Md. 684 (1976); Baker v. State, 6 Md. App. 148, 250 A.2d 677 (1969). Although appellant did not advance this argument at trial, he contends that it is a matter of jurisdiction and, therefore, may be raised at any time. Before we address this argument, a brief review of the evolution of the child abuse law in Maryland is helpful.
In 1963, the Legislature enacted the first provision concerning child abuse, entitled "Assault on Child." The law provided that:
"Any parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary."
1963 Md. Laws, Ch. 743 at 1536, codified in Md. Code Ann., Art. 27 § 11A. The Act was amended the next year to provide for the reporting of instances of abuse and to create a central registry of reported cases. Note, Maryland Laws on Child Abuse and Neglect: History, Analysis and Reform, 6 U.Balt.L.Rev. 113, 116-17 (1976). In 1966, the age of a minor, for purposes of this statute, was raised from fourteen to sixteen. 1966 Md. Laws, Ch. 221 at 467. These amendments made only slight changes in the language quoted above. Hence, at the time of the incidents in this case, the only difference was that in 1969, a minor child was defined as one who was less than sixteen years old.
The title of the law was changed to "Child Abuse" in 1970, when the Legislature moved the provision to Md. Code Ann., Art. 27, § 35A. Not until 1973, however, did the General Assembly indicate the purpose of the statute. The amendment redefined a minor child as one under eighteen years of age, and stated:
"The General Assembly hereby declares as its legislative intent and purpose the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse, by extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing immediate, cooperative efforts by the responsible agencies on behalf of such children."
1973 Md. Laws, Ch. 835 at 1708-09.
In 1974, a specific proscription against sexual abuse first appeared and it continues in the current statute, which provides:
"A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary not exceeding 15 years."
Md. Code Ann., Art. 27, § 35A(b) (1982 Repl.Vol., 1984 Cum. Supp.).[3] Abuse is further described as:
"(i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child under circumstances that indicate that the child's health or welfare is harmed or threatened thereby; or
(ii) Sexual abuse of a child, whether physical injuries are sustained or not."
Id. at § 35A(a)(2). These delineations were necessary as confirmed by the observation of the Court of Appeals in State v. Fabritz, 276 Md. 416, 423, 348 A.2d 275, 279 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976), that the original enactment, § 11A, "was not intended to reach acts of individuals not constituting ... an assault on a child." Hence, § 35A broadened the scope of prohibited conduct. Id. at 423-24, 348 A.2d at 280.
Appellant claims that the Information was defective because the crime was improperly called "child abuse" and the incorrect statutory section was cited. The caption in the charging document, however, does not determine the offense, Busch v. State, 289 Md. 669, 678-679, 426 A.2d 954, 959 (1981); State v. Carter, 200 Md. 255, 262, 89 A.2d 586, 589 (1952), nor is an incorrect statutory designation in a charging document fatal to the prosecution. Vines v. State, 40 Md. App. 658, 661-662, 394 A.2d 809, 811 (1978), aff'd. 285 Md. 369, 402 A.2d 900 (1979); Sands v. State, 9 Md. App. 71, 78 n. 3, 262 A.2d 583, 587 n. 3 (1970). The issue before us does not involve the name of the offense or the statute number, but rather, concerns whether the Criminal Information states an offense under § 11A as it existed in 1969.
The Maryland Declaration of Rights, Art. 21, extends to an accused the right to be informed of the charges against him. "A claim that a charging document fails to charge or characterize an offense is jurisdictional and may be raised, as here, for the first time on appeal." Williams v. State, 302 Md. 787, 490 A.2d 1277 (1985). An assertion that the indictment failed to comply with this standard "is a matter of jurisdiction and ... therefore, Rule 1085 permits appellate review whether or not the question was tried and decided below." Baker v. State, 6 Md. App. at 151, 250 A.2d at 680. On the other hand, "Where the claimed defect is not jurisdictional, it must be seasonably raised before the trial court or it is waived." Williams v. State, supra. We hold that the averments did not sufficiently charge and characterize an offense under § 11A as it existed in 1969 and, therefore, this Court properly may review whether the Information was valid according to the applicable law. We will explain.
Although Count VI tracks the language of the current statute, it must comply with the provisions of the law applicable when the offense occurred. Essentially, the statute in effect in 1969 required allegation and proof of the following elements:
(1) A parent, adoptive parent or other person,
(2) having permanent or temporary care or custody or responsibility for supervision,
(3) of a minor child (under the age of 16),[4]
(4) maliciously beat, struck, or otherwise mistreated the minor child,
(5) to such a degree that medical treatment became necessary.
Md. Code Ann., Art. 27, § 11A(a) (1966).
Count VI of Criminal Information No. 12435 charged appellant with several of these factors, including that he had the care and custody of a minor child, Mary Pearl Smith, and that he maliciously abused her. The allegations of "abuse" could establish the element concerning mistreatment, Pirner v. State, 45 Md. App. 50, 56-57, 411 A.2d 135, 139 (1980), but the showing of resulting medical treatment was not mentioned. We need not consider, however, whether the necessity of medical treatment could be inferred from the charge that appellant "feloniously, wilfully and maliciously abuse[d] Mary Pearl Smith." The point was not raised below and, more importantly, the charging document did not comply with the age requirement. The Information defined a minor child as under eighteen, rather than sixteen. This overinclusive designation is unfortunate, as Mary Pearl Smith in fact was fifteen years old in 1969 and, therefore, a minor according to the applicable law. Despite this actuality, the failure of the information to state the appropriate age renders it void as not stating an offense.
Based on our conclusion that Count VI of Information No. 12435 did not adequately charge a crime under the applicable law, we hold that the conviction and accompanying sentence based on it must be vacated. The decision concerning this particular count, however, does not affect the sentence imposed on other counts. Dunphy v. State, 13 Md. App. 671, 673-75, 284 A.2d 631, 633-34 (1971); Johnson v. State, 2 Md. App. 235, 244, 234 A.2d 167, 172 (1967), cert. denied, 249 Md. 732 (1968).
SECOND DEGREE RAPE AND INCEST
Charges of second degree rape and incest appeared in Criminal Information No. 12437, and appellant was convicted of both offenses. These counts arose from an act of sexual intercourse between appellant and Roberta Smith, his 13-year-old daughter-granddaughter. Appellant contends that we must overturn the second degree rape conviction because any father found to have had intercourse with a daughter under 14 years of age would commit both incest and second degree rape. If the girl were not his daughter, however, he would commit only second degree rape. Based on this distinction, he reminds us that in Henry v. State, 273 Md. 131, 134 n. 1, 328 A.2d 293, 296 n. 1 (1974), the Court of Appeals said:
"Where there is a specific enactment and a general enactment `which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.' Maguire v. State, 192 Md. 615, 623, 65 A.2d 299 (1949)."
Appellant then posits that the Legislature must have intended the rape provision in Md. Code Ann., Art. 27, § 463(a)(3) (1957, 1982 Repl.Vol.) to apply to those acts of sexual intercourse which are not incestuous. Hence, appellant could only be convicted and sentenced under the specific enactment punishing incest.
This contention is akin to the merger of offenses pursuant to the Double Jeopardy Clause guarantee that a person shall not receive multiple sentences for the same crime. Newton v. State, 280 Md. 260, 263, 373 A.2d 262, 264 (1977), citing United States v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975), and North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Under this doctrine, a court compares the elements required to establish each crime charged. If one offense includes the same elements as the other, plus an additional item, the "lesser" offense merges into the "greater." Walker v. State, 53 Md. App. 171, 190-91, 452 A.2d 1234, 1244 (1982), cert. denied, 296 Md. 63 (1983). A more difficult situation occurs when the offenses require proof of the same number of elements with neither being a "greater" offense. See id. In this situation, a court determines the merger issue by evaluating the statutory language of each crime. The specific enactment becomes the offense for which the accused may be convicted, and the general provision applies only to those cases that remain outside the scope of the more precise language. Maguire v. State, 192 Md. 615, 623, 65 A.2d 299, 302 (1949); Henry v. State, 273 at 134 n. 1, 328 A.2d at 296 n. 1.
Appellant argues that in accordance with this latter distinction, the charge of incest constitutes a more specific crime than rape. As a result, he argues that the general prohibition against second degree rape should apply only to instances other than incest. We disagree.
As a preliminary matter, we note that appellant's quotation from Maguire v. State, supra, is incomplete. The Court of Appeals prefaced its explication of the specific-general rule with the phrase "where there is, in the same statute, a particular enactment, and also a general one...." 192 Md. at 623, 65 A.2d at 302. Immediately after stating the distinction, the Court continued:
"This rule applies wherever an act contains general provisions and also special ones upon a subject which, standing alone, the general provisions would include."
Id. citing United States v. Chase, 135 U.S. 255, 260, 10 S.Ct. 756, 757, 34 L.Ed. 117 (1890).
Placed in context, the argument presented by appellant has no merit. Not only do the crimes of rape and incest appear in separate statutes, but upon comparison they each "[require] proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, ___ (1932), citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911). To prove rape or incest the evidence must establish the following elements:
1. Second degree rape.
a. vaginal intercourse with another person
(1) by force or threat of force and without the person's consent; or
(2) with knowledge that the person has a mental defect, or is mentally or physically incapacitated; or
(3) the person is under 14 years old and the perpetrator is at least four years older than the victim.
Md. Code Ann., Art. 27, § 463 (1957, 1982 Repl.Vol.).
2. Incest
a. carnal knowledge of a person
(1) within such a degree of kinship that State law prohibits marriage between the two persons.
Md. Code Ann., Art. 27, § 335 (1957, 1982 Repl.Vol.).
It is true that a violation of each statute occurs when a father commits second degree rape of a 14-year-old who is his daughter. The same scenario establishes the elements of both offenses, but the elements differ and neither provision includes the other. The applicable portion of the rape statute in this case requires proof that the victim was under 14 years old, and that the perpetrator was at least four years older than the victim; no family relationship need exist between the victim and the perpetrator. Incest, on the other hand, requires proof of the parties' relationship, but the age of the victim is not a factor, nor does it matter what the age difference between the parties is. Hence, a second degree rape of a 14-year-old non-relative would not establish incest, and incestuous activity between consenting adults would not constitute second degree rape.
Appellant argues that, because the facts in this case prove the elements of both offenses, the statutes are the same for purposes of the Double Jeopardy Clause and, therefore, he can be convicted only for one offense. The Supreme Court has rejected this view, adopting the language of the Massachusetts Supreme Court:
"A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."
Blockburger v. United States, supra, citing Gavieres v. United States, supra, quoting Morey v. Commonwealth, 180 Mass. 433 (1871).
Based on our observation that the crimes of second degree rape and incest each require proof of a different element than the other, and the Supreme Court's recognition that one transaction may violate two statutes, we conclude that appellant's separate convictions for these crimes did not violate the Double Jeopardy Clause.
JUDGMENT VACATED AS TO COUNT VI OF INFORMATION NO. 12435; JUDGMENTS AFFIRMED ON REMAINING COUNTS. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] This child was born December 25, 1977.
[2] The State claimed that appellant had been a patient in a mental institution. The source of this information was not hospital records, but was based on hearsay.
[3] This provision became effective October 1, 1984, and only the order of the sections differs from the prior enactment.
[4] A 1966 amendment increased the age of a minor under the statute from fourteen to sixteen years of age. 1966 Md. Laws, Ch. 221 at 467. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265511/ | 657 F.Supp. 1074 (1987)
Adja SECK, an infant under the age of 14 years, by her parent and natural guardian, Linda SECK, and Linda Seck, individually, Plaintiff,
v.
Charles HAMRANG, M.D., Defendant.
No. 85 Civ. 1726 (LLS).
United States District Court, S.D. New York.
April 6, 1987.
Steven Bennett Blau, New York City, for plaintiff.
*1075 Curtis, Mallet-Prevost, Colt & Mosle, New York City, for defendant; Donna Edbril, of counsel.
OPINION
STANTON, District Judge.
Defendant's motion for an order directing, in accordance with Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its progeny, that a medical malpractice panel be convened in accordance with section 148-a of the New York Judiciary Law, and its determination be obtained and applied in this diversity medical malpractice suit, is denied.
The thoughtful reasons given in Wheeler v. Shoemaker, 78 F.R.D. 218 (D.R.I.1978) and Hibbs v. Yashar, 522 F.Supp. 247 (D.R. I.1981) against the use of such state-created panels by federal courts in medical malpractice actions resting on diversity jurisdiction have been largely rejected by the Court of Appeals for the First Circuit in Feinstein v. Massachusetts General Hospital, 643 F.2d 880 (1st Cir.1981), and more than a dozen federal courts have "concluded that the Erie doctrine requires a federal court sitting in diversity to apply a state statute requiring referral of a medical malpractice action to a state-created arbitration panel or hearing tribunal." Feinstein, 643 F.2d at 885 n. 7. See Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d 146, 149 n. 4 (5th Cir.1981), aff'g, 472 F.Supp. 468 (E.D.La.1979); Feinstein v. Massachusetts General Hospital, 643 F.2d 880 (1st Cir. 1981); DiAntonio v. Northampton-Accomack Memorial Hospital, 628 F.2d 287 (4th Cir.1980); Edelson v. Soricelli, 610 F.2d 131 (3d Cir.1979); Stoner v. Presbyterian University Hospital, 609 F.2d 109 (3d Cir.1979) (per curiam); Hines v. Elkhart General Hospital, 603 F.2d 646 (7th Cir.1979); Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir.1979); Knoblett v. Kinman, 623 F.Supp. 805 (S.D.Ind.1985); DiFilippo v. Beck, 520 F.Supp. 1009 (D.Del.1981); Kanouse v. Westwood Obstetrical & Gynecological Associates, 505 F.Supp. 129 (D.N.J.1981); Davison v. Sinai Hospital, 462 F.Supp. 778 (D.Md.1978); aff'd, 617 F.2d 361 (4th Cir.1980); Byrnes v. Kirby, 453 F.Supp. 1014 (D.Mass.1978); Wells v. McCarthy, 432 F.Supp. 688 (E.D. Mo.1977); Marquez v. Hahnemann Medical College & Hospital, 435 F.Supp. 972 (E.D.Pa.1976); Flotemersch v. Bedford County General Hospital, 69 F.R.D. 556 (E.D.Tenn.1975). As would be expected, the individual arguments varied according to the particular state's law. However, similar results were reached by courts in the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Circuits. (The Pennsylvania statute is no longer applied in federal courts, the Pennsylvania Supreme Court having held it unconstitutional. Firich v. American Cystoscope Makers, Inc., 635 F.2d 259 (3rd.Cir.1980)). Apparently the question is open in the Second Circuit.
Unavoidably, because the latest (save one) of those decisions were rendered in 1981, none of them considered the effect on this question of either the extensive amendments in 1983 to Fed.R.Civ.P. 16, or the Supreme Court's recent decision of Burlington Northern R.R. Co. v. Woods, ___ U.S. ___, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). Furthermore, and naturally enough, none of them considered the New York statute at issue here.
The New York statute applies only in certain counties (see N.Y. Judiciary Law § 148-a.1) and its clear purpose is to aid in the settlement of pending lawsuits. See Treyball v. Clark, 65 N.Y.2d 589, 590, 483 N.E.2d 1136, 493 N.Y.2d 1004 (1985); Bernstein v. Bodean, 53 N.Y.2d 520, 527, 426 N.E.2d 741, 443 N.Y.S.2d 49 (1981). The panel is established "to facilitate the disposition of medical malpractice actions ... in the supreme court" under rules established by the respective Appellate Divisions (N.Y. Judiciary Law § 148-a.1); the parties may waive use of the panel by agreement (id. subd. 3(c)); the hearing is informal and off the record (id. subd. 4); and the statute contemplates complete or partial disposition of the case after "presentation and discussion between the panel and counsel" (id. subd. 7).
The convening by this court of such a panel for settlement purposes may be a technique among others available under new Fed.R.Civ.P. 16(c), which allows the court to "take action with respect to ... (7) the possibility of settlement or the use of *1076 extrajudicial procedures to resolve the dispute". As such, it would be but one of many available, including reference to arbitration, mediation, summary jury trial, bifurcation and trial of separate issues, and others. The purpose of the Rule's amendment was to increase the court's flexibility, resource and discrimination in the pretrial management and resolution of cases. A given technique may be appropriate in one case and not in another.
Here, convention of a medical malpractice panel and reference of the case to it would be inappropriate. This case is ready and scheduled for trial on June 15, 1987. The "just, speedy, and inexpensive determination" (Fed.R.Civ.P. 1) of this action is now best obtained by its prompt trial, without further procedures.
Thus this case illustrates the direct collision between the federal Rule and the State law.
Burlington Northern R.R. Co. v. Woods, ___ U.S. ___, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987) so closely parallels this case as to control it. In Burlington an Alabama statute sought to penalize frivolous or dilatory appeals by requiring the appellate court to add ten percent to the amount of any money judgment it affirmed. The Supreme Court held that this state-created mandatory penalty conflicted with the purposes and operation of Rule 38 of the Federal Rules of Appellate Procedure, which provides that a Court of Appeals which determines that an appeal is frivolous may award damages and single or double costs. Rule 38 having been properly enacted, the Supreme Court held that it occupied the field, and the Alabama statute thus had no application to a judgment entered by federal courts sitting in diversity. The Court stated:
Rule 38 affords a Court of Appeals plenary discretion to assess "just damages" in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the District Court's judgment. Thus, the Rule's discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama's affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently co-extensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute's field of operation so as to preclude its application in federal diversity actions.
Petitioner nevertheless argues that, because Alabama has a similar Appellate Rule which may be applied in state court alongside the affirmance penalty statute, see Ala. Rule App. Proc. 38; McAnnally v. Levco, Inc., 456 So.2d 66, 67 (Ala. 1984), a federal court sitting in diversity could impose the mandatory penalty and likewise remain free to exercise its discretionary authority under Federal Rule 38. This argument, however, ignores the significant possibility that a Court of Appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court's judgment. Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court's exercise of discretion under Alabama's Rule 38, that Rule provides no authority for defining the scope of discretion allowed under Federal Rule 38.
Federal Rule 38 regulates matters which can reasonably be classified as procedural, thereby satisfying the constitutional standard for validity. Its displacement of the Alabama statute also satisfies the statutory constraints of the Rules Enabling Act. The choice made by the drafters of the Federal Rules in favor of a discretionary procedure affects only the process of enforcing litigants' rights and not the rights themselves.
Burlington, 107 S.Ct. at 970-71 (footnote omitted).
Similarly, the present New York statute would so impinge upon the broad procedural powers of the federal district courts to control and fashion techniques for *1077 settlement under Fed.R.Civ.P. 16 that its "underlying purpose and mandatory mode of operation conflict with the purpose and operation" of Rule 16, as illustrated by this very case. Accordingly, the New York statute has no application to the pretrial procedures of a federal court sitting in diversity and defendant's motion is denied.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266467/ | 165 Cal.App.4th 84 (2008)
In re ESMERALDA S., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent,
v.
MARLENE G., Defendant and Appellant.
No. E045044.
Court of Appeals of California, Fourth District, Division Two.
July 22, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*86 Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
*87 OPINION
McKINSTER J.
Marlene G. (Mother) appeals from the juvenile court's order terminating her parental rights to her child, Esmeralda S. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)[1] Mother makes two contentions. In the published portion of our Discussion, Mother argues that her due process rights were violated when the juvenile court appointed her a guardian ad litem. In the unpublished portion, Mother contends the juvenile court and the San Bernardino County Department of Children's Services (the Department) did not properly inquire into her and Jesus G.'s (Father) possible American Indian ancestry for purposes of complying with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).[2] We disagree with Mother's contentions and affirm the judgment.
FACTS
1.
DETENTION
On August 3, 2006, San Bernardino city police attempted to stop Mother for a traffic violation. Mother did not stop and instigated a 12-minute police pursuit, during which she committed several traffic violations. Esmeralda, who was seven months old at the time, was in Mother's vehicle during the pursuit. Esmeralda was incorrectly strapped into an inappropriately sized car seat. Mother was arrested and jailed for child endangerment. The police contacted the Department.
Police informed Department employees that they knew Mother, due to prior "domestic issues" at her home. After researching Mother, a Department employee discovered three prior incidents involving Mother. In the first incident, on December 23, 2005, Mother refused to take antibiotics for a fever despite the possibility of transmitting her disease to her infant daughter. Mother was assessed for a possible hold for being a danger to others. (§ 5150.)
The second incident occurred in May 2006, when Mother reported that her six-year-old son was raped. The Department investigated and advised the father of Mother's two oldest children to seek sole custody of the children, which he did.
*88 The third incident occurred in June 2006. Mother informed an employee of the Department that "she was hearing voices telling her that others are trying to break into her home and kill her."
During the investigation of the current case, two Department employees interviewed Mother's sister-in-law, who lives with Mother, and Mother's paternal aunt, who lives next door to Mother. The sister-in-law stated that Mother often locks herself and Esmeralda in her room, and will not allow anyone access to Esmeralda. Mother stores her feces and urine in jars in the kitchen. Mother wrote the name "Andrew" on Esmeralda's belly in felt marker and instructed family members to address Esmeralda as "Andrew."
While at Mother's house, the Department employees observed that there was no baby formula, no baby clothes, and very few diapers. The employees observed a baby bottle that was one-quarter full of moldy fruit cocktail.
Father, who is an alleged father, is incarcerated in a Colorado state prison for transporting a controlled substance across state lines. Father is scheduled to be released in 2014. Esmeralda was placed with Mother's paternal aunt.
On August 9, 2006, Mother's trial attorney requested the court appoint a guardian ad litem for Mother. Without any discussion, the court agreed to make the appointment. The court asked Mother if she had American Indian ancestry. Mother responded that she did, but that she would need to get the details from her grandmother. The court ordered Mother, with assistance from her guardian ad litem, to complete the Judicial Council form JV-130 concerning American Indian ancestry.[3] The court found that placing Esmeralda in Mother's custody would put Esmeralda in substantial danger. The court ordered that Esmeralda be placed in the Department's custody and continue to stay at Mother's paternal aunt's house.
2.
JURISDICTION/DISPOSITION
On August 30, 2006, Mother offered no comment on the issue of jurisdiction and submitted on the issue of disposition. The court found that Father is an alleged father. The court found that Esmeralda came within section 300, subdivisions (b) and (g), and declared her a dependent of the court. The court ordered Esmeralda be placed in the custody of the Department. Additionally, *89 the court ordered Mother to participate in her case plan, which included a psychological evaluation, general counseling, parenting classes, and child development classes.
3.
PSYCHOLOGICAL EVALUATION
On January 8, 2007, a report was issued regarding Mother's psychological evaluation. During the evaluation, Mother reported that her primary sources of income were payments from her children's fathers and money from a man whom she traveled with and had sex with. Mother also reported that she lives in a four-bedroom house with her mother, two sisters, one brother, her brother's wife, and seven children. Mother could not recall how long she had lived at the residence. Mother admitted hearing voices coming from her fish tank and having visual hallucinations. Mother feels sad, thinks of death, has racing thoughts, has difficulty understanding what people say to her, has problems understanding what she reads, and cannot find her way home from familiar places.
4.
CRIMINAL CASE AND PLACEMENT
On January 10, 2007, a criminal court in San Bernardino found Mother competent to stand trial. Mother pled guilty to willfully inflicting harm on a child (Pen. Code, § 273a, subd. (a)), and fleeing from a pursuing peace officer (Veh. Code, § 2800.1). Mother was sentenced to time served and released from jail. Mother went to her paternal aunt's house and asked to see Esmeralda. Esmeralda was not present, because she was at her paternal grandmother's house in Brawley. The Department requested that Esmeralda's placement be immediately changed to her paternal grandmother's house in Brawley. The court ordered Esmeralda's placement be modified accordingly.
5.
SIX-MONTH REVIEW
In the Department's February 28, 2007, status report, it is recommended that Mother be offered six more months of services and that Esmeralda continue to be placed in the Department's custody, because Mother continued to exhibit symptoms of mental illness and was not medicated. When a Department employee interviewed Mother, Mother mentioned that *90 Esmeralda likes to eat peanut butter and chocolate. Mother's relatives told the Department employee that they believed Mother was feeding Esmeralda peanut butter mixed with feces.
At the six-month review hearing on February 28, 2007, the court found it would be detrimental to Esmeralda to return her to Mother's custody.
6.
12-MONTH REVIEW
In the Department's August 28, 2007, status report it is recommended that Esmeralda continue to be placed with her paternal grandmother and that the court order a hearing for considering termination of parental rights. The report reflects that Mother was unemployed, but that her relatives were providing for her needs. Mother attended counseling and regularly visited Esmeralda; however, Mother was unwilling to take prescription psychotropic medication. A Department employee concluded that Mother had not completed her case plan, because she was unemployed, did not have her own residence, and was not adequately addressing her mental health issues. It is also noted in the report that Esmeralda's paternal grandmother hoped to adopt Esmeralda, and that the grandmother wanted to allow Mother to have a continuing role in Esmeralda's life.
Mother's attorney requested a contested 12-month review hearing, because Mother believed that she completed her case plan and was capable of caring for Esmeralda. On September 18, 2007, the court held the contested hearing. Mother testified at the hearing. Mother stated that she was unemployed and living in the living room of her uncle's house. Mother testified that she was supporting herself with $500 she received from the sale of her brother's house. Mother admitted that she refused to take medication because "it has too many side effects." Mother stated that if Esmeralda were returned to her custody then she would move to a friend's house. Mother testified that Esmeralda should not stay with her grandmother because there are no children at the house for Esmeralda to play with.
The court found it would be detrimental to Esmeralda to return her to Mother's custody, and that it was unlikely that Esmeralda would be returned to Mother's care within six months. The court ordered that Mother's reunification services be terminated.
*91 7.
TERMINATION
In the Department's January 15, 2008, report, it is noted that Esmeralda's paternal grandmother hoped to adopt Esmeralda. The grandmother is 48 years old, and lives in a three-bedroom house with her 46-year-old fiancée, and her two children who are ages 20 and 17. Esmeralda's grandmother has been employed by the same company for four years and has a high school diploma. Esmeralda's grandmother is willing to maintain relationships with Esmeralda's mother and half siblings. The Department recommended that Mother's parental rights be terminated so that Esmeralda's grandmother could adopt Esmeralda.
Mother requested a contested hearing concerning issues of adoptability and possible exceptions to the termination of her parental rights. (§ 366.26.) The court held the contested hearing on January 30, 2008. Mother testified at the hearing. Mother stated that it would be better for Esmeralda to be returned to her custody, because she lives near family and children that Esmeralda could play with.
The court found that it was likely Esmeralda would be adopted. The court terminated Mother's and Father's parental rights.
DISCUSSION
1.
GUARDIAN AD LITEM
A. Due Process
Mother contends the juvenile court violated her due process rights by appointing her a guardian ad litem. Mother argues that her rights were violated because (1) she did not consent to the appointment; and (2) the court did not follow the proper procedures for appointing a guardian. The Department concedes that the juvenile court violated Mother's due process rights when appointing a guardian ad litem for Mother; however, the Department argues that the violation was harmless. We agree with both Mother and the Department that the court violated Mother's due process rights. We briefly explain the violation.
*92 (1) "In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. (Code Civ. Proc., § 372; [citation].) The test is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. [Citations.] The effect of the guardian ad litem's appointment is to transfer direction and control of the litigation from the parent to the guardian ad litem, who may waive the parent's right to a contested hearing. [Citations.] [¶] Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the guardian ad litem and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent's due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent's consent, the record must contain substantial evidence of the parent's incompetence. [Citation.]" (In re James F. (2008) 42 Cal.4th 901, 910-911 [70 Cal.Rptr.3d 358, 174 P.3d 180] (James F.).)
At the detention hearing, Mother's trial attorney requested the court appoint a guardian ad litem for Mother, based upon his interview of Mother. Without any questions or a hearing, the court agreed to appoint a guardian ad litem for Mother. Nothing in the record reflects that Mother consented to the appointment. Accordingly, we agree with Mother and the Department that the court violated Mother's due process rights when it appointed her a guardian ad litem, because Mother did not consent to the appointment and the court did not inquire into whether or not Mother was competent.
B. Harmless Error
(2) Our Supreme Court recently determined that a due process violation concerning the appointment of a guardian ad litem for a parent in a dependency proceeding is subject to harmless error analysis. (James F, supra, 42 Cal.4th at pp. 915-917.) Despite this recent decision, two questions are left unanswered. The first question concerns the application of the harmless error analysis. The second question concerns the standard of review in the harmless error analysis.
*93 (i) Application of the Harmless Error Analysis
In James F., our Supreme Court determined that a juvenile court's violation of a parent's due process rights in a dependency proceeding may be deemed harmless "[i]f the outcome of a proceeding has not been affected" by the violation. (James F, supra, 42 Cal.4th at p. 918.) It is unclear what is meant by "the outcome of a proceeding." In their briefs, both Mother and the Department argue an error may be deemed harmless if (1) the guardian would have been appointed despite the violation; and (2) the termination of parental rights would have occurred despite the violation. As we will explain, we conclude the juvenile court's error may be deemed harmless if the outcome of the review hearings and the termination hearing were not affected by the violation. By contrast, we conclude it is not necessary to show that the guardian would have been appointed despite the court's violation.
In James F., our Supreme Court concluded the juvenile court's error was harmless because "[t]he evidence in the record all points to the conclusion that [the father] was incompetent and thus in need of a guardian ad litem."[4] (James F., supra, 42 Cal.4th at p. 916.) This analysis could be interpreted in two ways. First, it could be interpreted as deeming the error harmless because a guardian would have been appointed despite the violation. However, a second way of interpreting the analysis is that the court's focus was on the outcomes of the review hearings and the termination hearings, and that by finding the guardian would have been appointed despite the due process violation, the court was finding that the outcomes of the review hearings and the termination hearing were unaffected by the juvenile court's violation.
We find support for this second interpretation in a policy analysis in James F., where the court stresses the importance of not needlessly reversing dependency judgments. (James F, supra, 42 Cal.4th at p. 918.) The court cites the "strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible." (Ibid.) To that end, it appears as though a juvenile court's violation of a parent's due process rights should be deemed harmless if the outcome of the review hearings and the termination hearing were not affected, rather than the outcome of the appointment of the guardian.
In sum, it is unclear from the opinion in James F. which test our Supreme Court was directing reviewing courts to apply when discussing harmless *94 error, i.e., that the error is harmless if (1) the guardian would have been appointed despite the violation; or (2) the termination of parental rights would have occurred despite the violation. We conclude that the more efficient and sensible test is whether a review hearing or termination hearing was affected by the violation. The alternative testthat an error is harmless if the guardian would have been appointed despite the errorcould easily lead to needless reversals, because the fact that a guardian might not have been appointed does not mean a different outcome would have occurred in the review and termination hearings. Accordingly, in the instant case, we determine whether the court's violation of Mother's due process rights was harmless because Mother's parental rights would likely have been terminated despite the court's violation of her due process rights.
(ii) Standard of Review
The second issue we must address is what standard of harmless error review is applicable to this analysis.
In James F., our Supreme Court declined the request of the California State Association of Counties, appearing as amicus curiae, to determine whether the appropriate harmless error standard of review in juvenile dependency proceedings for constitutional error is harmless beyond a reasonable doubt or harmless by clear and convincing evidence. (James F., supra, 42 Cal.4th at p. 911, fn. 1.)
We will assume, without deciding, that the harmless beyond a reasonable doubt standard of review is applicable in this case, because it provides a more cautious approach in that if the error is harmless beyond a reasonable doubt it will also be harmless by clear and convincing evidence.
(iii) Facts
We briefly present the facts that are pertinent to our analysis: At the detention hearing on August 9, 2006, the court asked Mother whether she had American Indian ancestry. Mother responded that she did, but that she would need to get the details from her grandmother. The court ordered Mother, with the assistance of her guardian ad litem, to complete a JV-130 form. Two weeks later, on August 23, 2006, Mother marked the box on the JV-130 form next to the sentence, "I have no Indian ancestry as far as I know." By contrast, Mother did not mark the box next to the sentence, "I may have Indian ancestry." At the hearing on August 30, 2006, the court found that ICWA was inapplicable to Esmeralda's case.
*95 (iv) Analysis
Mother contends that if a guardian had not been appointed then her parental rights may not have been terminated because she might have argued that she had American Indian heritage, which may have made ICWA applicable to her case. Mother's appellate counsel argues that "[i]t is impossible to know what discussion the guardian ad litem had with mother that influenced her to change her position on her possible [American] Indian herita[g]e. However, had it not been for the influence of the guardian ad litem, mother may have continued to assert her belief that she, and consequently, Esmeralda, had come from Native American descent. This would have influenced the outcome of the proceedings by giving her tribe an opportunity to intervene, and possibly impacted all of the court's further decisions about the case." We disagree with this argument for two reasons.
First, despite the appointment of a guardian ad litem, Mother could have told the court that she had American Indian ancestry. Nothing in the record suggests that Mother was unable to express her thoughts to the court either directly or through her appointed guardian, as evinced by Mother testifying at both the 12-month review hearing and the termination hearing. Accordingly, because Mother could have easily raised the issue of her heritage we disagree that the outcome of a review hearing or the termination hearing was affected by the appointment of the guardian ad litem.
(3) Second, the question posed in a harmless error analysis is: Has the outcome of a proceeding been affected by the violation? Mother argues only that the outcome may have been affected, because she may have American Indian ancestry, and she may have argued that ICWA is applicable, and if such arguments had been made they may have affected the proceedings. Whether Mother has American Indian heritage is within her knowledge. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430, 1431 [49 Cal.Rptr.3d 951] [ancestry is within appealing parent's knowledge].) Mother is not asserting that she does have American Indian ancestry and that she would have claimed such heritage at the juvenile court if the guardian had not been appointed. Accordingly, Mother's argument does not convince us that the outcome of a proceeding has been affected by the violation.
Mother urges us to follow the reasoning of In re Jessica G. (2001) 93 Cal.App.4th 1180 [113 Cal.Rptr.2d 714] (Jessica G.), and In re Sara D. (2001) 87 Cal.App.4th 661 [104 Cal.Rptr.2d 909] (Sara D.). In both cases, the reviewing courts concluded that the juvenile courts violated the offending parents' due process rights by appointing guardian ad litems without following the proper procedures. (Jessica G., at p. 1189; Sara D., at p. 672.) The reviewing courts went on to conclude that the juvenile courts' errors could *96 not be deemed harmless because it was impossible to know what the offending parents might have suggested to their attorneys if the guardian ad litems had not been appointed or what impact witnesses offered by the offending parents may have had on the courts' decisions. (Jessica G., at p. 1189; Sara D., at p. 673.)
(4) We disagree with the harmless error reasoning of Jessica G. and Sara D. We agree with the reasoning of In re Enrique G. (2006) 140 Cal.App.4th 676 [44 Cal.Rptr.3d 724] (Enrique G.). In Enrique G., the appellate court found the juvenile court violated the offending parent's due process rights when it appointed the parent a guardian ad litem. (Id. at p. 684.) The reviewing court concluded that the juvenile court's error was harmless because the offending parent did not cite any prejudice resulting from the appointment of the guardian. (Id. at pp. 686-687.) We agree with this reasoningthat a finding that the juvenile court's error was prejudicial must be based on a claim of prejudice rather than speculation of possible prejudicebecause it is simply inefficient to reverse a dependency judgment based upon speculation that an offending parent may have handled the case differently than his or her guardian ad litem. (See James F., supra, 42 Cal.4th at p. 916 [there is a strong public interest in prompt resolution of dependency cases]; see also People v. Gray (2005) 37 Cal.4th 168, 230 [33 Cal.Rptr.3d 451, 118 P.3d 496] [speculation cannot support reversal of a judgment].)
(5) In sum, we find Mother's argument that the proceedings were affected by the violation to be unavailing. Mother does not contend that any issue other than the completion of her JV-130 form was affected by the appointment of a guardian. Our review of the record reveals that Mother's guardian properly advocated for her parental interests and that Mother never "expressed dissatisfaction with the guardian ad litem or asked the juvenile court to vacate [the] appointment." (James F., supra, 42 Cal.4th at p. 917.) Accordingly, we find the court's violation of Mother's due process rights to be harmless beyond a reasonable doubt.
2.
ICWA[*]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*97 DISPOSITION
The judgment is affirmed.
Ramirez, P. J., and Gaut, 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 part 2. of the Discussion.
[1] All further references to code sections are to the Welfare and Institutions Code unless otherwise indicated.
[2] Counsel for Esmeralda has submitted a letter brief urging us to affirm the judgment of the juvenile court.
[3] Judicial Council form JV-130, Parental Notification of Indian Status, is now form ICWA-020.
[4] In James F., the record reflected that (1) the father's parents had previously been appointed to act as the father's conservator under Probate Code section 1801; and (2) the father had been "found mentally incompetent to stand trial in criminal proceedings either shortly before or within days after the guardian ad litem appointment," pursuant to Penal Code section 1367. (James F., supra, 42 Cal.4th at p. 916.)
[*] See footnote, ante, page 84. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265518/ | 163 Cal.App.4th 1545 (2008)
JILL FARWELL et al., Plaintiffs and Appellants,
v.
SUNSET MESA PROPERTY OWNERS ASSOCIATION, INC., Defendant and Respondent.
No. B200693.
Court of Appeals of California, Second District, Division Eight.
June 18, 2008.
*1547 Turner, Aubert & Friedman and Steven A. Morris for Plaintiffs and Appellants.
Kulik, Gottesman, Mouton & Siegel, Leonard Siegel and Robert P. Mitrovich for Defendant and Respondent.
OPINION
FLIER, J.
The four appellants in this case brought an action against respondent Sunset Mesa Property Owners Association, Inc. (Association), and a number of homeowners in the Sunset Mesa development. The trial court sustained a demurrer to the fourth amended complaint with leave to amend, finding that the individual directors of the Association could not serve as representatives of the defendant class of Sunset Mesa homeowners. Although no judgment was entered in the case, appellants filed the instant appeal, contending that they were entitled to do so under the "death knell" doctrine. We disagree and dismiss the appeal.
THE "DEATH KNELL" DOCTRINE
(1) Notwithstanding its colorful title, the "death knell" doctrine is a tightly defined and narrow concept. Under this "doctrine," an order denying the certification of a class is appealable (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [63 Cal.Rptr. 724, 433 P.2d 732]); the rule laid down in Daar v. Yellow Cab Co. has retained its vitality. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [97 Cal.Rptr.2d 179, 2 P.3d 27].) The reason for this rule, as our Supreme Court put it in Daar v. Yellow Cab Co. is that the denial of class certification is "tantamount to a dismissal of the action as to all members of the class other than plaintiff." (Daar v. Yellow Cab Co., supra, at p. 699.) That is, an appeal is allowed because the action has in fact and law come to an end, as far as the members of the alleged class are concerned. Since, in theory, the individual plaintiff's action can go forward, the death knell doctrine fits comfortably into the exception to the "one final judgment" rule that arises when parties have separate and distinct interests; when this is true, there can be a final and appealable judgment for each such party. (See generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 69, p. 126.)
(2) The courts have not expanded the death knell doctrine beyond the limits that we have described. As the text writers show, other orders dealing with class actions have not been included in the death knell doctrine. Thus, excluded from the death knell doctrine are orders certifying a class, orders partially certifying a class, orders compelling the representative of a class to *1548 arbitrate, and orders directing service of notice to class members, to name four examples. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 2:39.2 to 2:39.5, pp. 2-25 to 2-26 (rev. # 1, 2007).)
With this preface, we state the relevant facts and procedural background.
FACTS AND PROCEDURAL BACKGROUND
We set forth appellants' synopsis of the basic controversy in this case: Appellants "seek a judicial declaration regarding the validity of the attempted amendments of covenants governing home building in their community, known as Sunset Mesa, and seek to quiet title to their real properties as the attempted amendments purport to prevent [appellants], or anyone else, from ever renovating or otherwise changing their own homes. As such, the attempted amendments not only affect [appellants] but every other one of the four hundred and fifty households within Sunset Mesa." According to appellants, it is the Association that is attempting to ramrod the passage or the adoption of these amendments.
Respondent's version is that Sunset Mesa has sweeping and majestic ocean views, that the existing covenants have preserved the unique character of this ocean view community and that appellants "seek to establish a new principle of California lawthe right of the richest and newest homeowners to build McMansions, regardless of preexisting land use restrictions."
For the purposes of this opinion, it is not necessary to set forth the extended and somewhat complex procedural history of this case. Suffice it to say that the original complaint was filed on December 28, 2004, and that it named the Association, four individuals and numerous Does as defendants; the Doe defendants were identified as other property owners in Sunset Mesa. The plaintiffs, appellants, are themselves Sunset Mesa property owners.
It was not until the third amended complaint, filed on September 28, 2006, that appellants alleged that there was a defendant class comprised of Sunset Mesa property owners. The complaint named the Association as the class representative. The Association demurred on the ground that it was not a proper class representative and the trial court sustained this demurrer. Among other things, the trial court noted that the Association could not represent the putative class since one of appellants' allegations was that the Association had harmed Sunset Mesa property owners. The court noted that it understood *1549 that appellants did not want to name each and every Sunset Mesa property owner as a defendant, intimating that there might not be a way around this.[1]
The fourth amended complaint repeated the class allegations of the previous complaint but named as the class representatives the Association's volunteer directors, along with some other Sunset Mesa property owners. Prior to the hearing on the demurrer to this complaint, appellants dismissed the other property owners, leaving only the directors as class representatives.
The hearing on the Association's demurrer to the fourth amended complaint took place on May 17, 2007, and opened with the trial court's observation that "naming the board members is no different from naming the Association." After listening to an extended argument by appellants' counsel, the trial court made a series of observations that appellants now claim in their opening brief "made clear to the parties that the complaint simply could not be amended ever to state a class action. (R.T. p. 45:8-48:24.)" (Original italics.)
It is true that the trial court stated that it had seen "the figure of 800," referring apparently to Sunset Mesa property owners, and that the interests of all these people were not the same, but were in fact different. But the court did not stop there and went on to state: "Now, your idea about a defense class action is a very creative one. You have been creative, and I've enjoyed reading your work, but what you simply want to do is to impose a class representative on this class." The court then noted appellants' papers had attacked the individual members of the Association's board of directors, claiming that these members had exceeded their powers. The court stated: "Well, on the one hand we can't have a renegade board harming the rights of the people in the class and then saying that they have to be the class representatives. There's a disconnect there." After some further remarks on the conflict between the Association and the individual property owners, the court went on to make what is its most significant statement on the issue that is now before us: "And, certainly, if this were the other way around, if this were a plaintiffs' class, a proposed class action, and these were the facts, there's no way the class would be certified; no way, not on these facts."
But this was not the end of the matter. The court had noted earlier that appellants could have chosen "narrow relief to invalidate these CC&R's"[2] or seek the "broader relief" that appellants were now actually seeking. The *1550 court returned to this point a little later: "I'm not going to tell you what you should go after for your clients, but if you want the broader relief that affects the right to everybody there, everybody there has a right to be heard." The court closed these remarks by stating that it would sustain the demurrer without leave to amend.
Appellants' counsel reacted sharply to the indication that the demurrer would be sustained without leave to amend, stating "the complaint is capable of being amended, and I wrote that in my brief at the end."[3] Counsel stated in substance that appellants had three choices. The first was to serve all the homeowners, a choice that counsel stated he wished to avoid. The second choice was "go with the narrower claims." The third was to file a petition for an extraordinary writ in the Court of Appeal. Counsel closed by stating: "I can amend in three different ways that should satisfy you, and the law is, basically, as long as the complaint is capable of being amended, you shouldn't sustain the demurrer without leave to amend."
After further argument, the trial court changed its mind and sustained the demurrer with leave to amend.
We note here that the adequacy of the representation of a defendant class is not a novel problem and has engaged the attention of the courts and text writers. (See cases and materials collected in 2 Conte & Newberg, Newberg on Class Actions (4th ed. 2002) § 4:60, pp. 375-384.) It is by no means an insurmountable task to identify persons who can serve as representatives of a defendant class, although the dynamics of such a class are different from that of a plaintiff class. (Id., § 4:46, pp. 336-339.) Indeed, defendant classes have a long history, dating back to 1853. (Id., § 4:46, p. 338, citing Smith et al. v. Swormstedt et al. (1853) 57 U.S. 288 [14 L.Ed. 942].) California has also long recognized defendant classes. (E.g., Wheelock v. First Presb. Church (1897) 119 Cal. 477, 481-482 [51 P. 841]; Rosicrucian Fellow. v. Rosicrucian Etc. Ch. (1952) 39 Cal.2d 121, 139-140 [245 P.2d 481].)
THE PURPORTED APPEAL MUST BE DISMISSED
We are not unsympathetic to the problem faced by appellants, and particularly to counsel's efforts to frame a complaint that sufficiently articulates appellants' claims without naming hundreds of homeowner defendants. Nonetheless, the question whether an order is appealable goes to the jurisdiction of an appellate court, which is not a matter of shades of grey but rather of black or white.
*1551 We have before us an order sustaining a demurrer with leave to amend; no one disputes that this is not an appealable order.[4]
Appellants' contention that the effect of this order is to terminate the class action is not sound in the abstract, nor is it borne out by the particular facts and circumstances of this case.
In the abstract, the decisions the trial court made was to rule that the board members could not serve as class action representatives and it gave appellants leave to amend to cure this defect.[5] Thus, were we to address this appeal on the merits, we would have to address what on its face is an interlocutory, nonappealable order.
In terms of the circumstances of this case, appellants themselves state that they could amend the class action allegations. They state in their opening brief: "Here, if required to do so, appellants can clearly amend in any number of ways to state an ascertainable class (or classes) and appropriate class representatives. For example, appellants could name as representatives select individuals who reside in each of the Neighborhood Tracts." It appears that this conflicts with appellants' claim that the order of May 17, 2007, was the death knell of their class action.
The only way to reconcile these conflicting statements by appellants is to interpret the trial court's May 17, 2007 ruling to mean that this particular trial court would under no circumstances permit a class action to go forward.
There are four reasons why we refuse to do so.
First. While the trial court stated at one point that it would not certify a class if this were a plaintiffs' class, the court did so on the basis of the complaint that was before the court. Evidently, a change in the relief sought may well affect the trial court's assessment of the certification of a class action. We reiterate here that there is nothing unprecedented about a defendants' class and that experience indicates that, once the characteristics of a defendants' class action are taken into account, suitable class action representatives can be identified.
(3) Second. The observation of the court that we refer to was just thatan observation and not a ruling. The question whether the court would *1552 certify a class was not before the court. Opinions voiced by the trial court are to be distinguished from the trial court's decision; the opinions voiced by the trial court do not furnish any basis for an attack on an otherwise correct decision. (Scholle v. Finnell (1916) 173 Cal. 372, 376 [159 P. 1179]; see generally 9 Witkin, Cal. Procedure, supra, Appeal, § 344, pp. 387-389.)
Third. The suggestion made by appellants in their opening brief that they could name a class represented by select individuals representing neighborhood tracts was not before the trial court; it may well be that this solution would be acceptable to the court. If so, the May 17, 2007 ruling obviously was not the death knell of the class action.
Fourth. The thrust of appellants' argument is that the trial court's order and the views expressed by the trial court amount to the death knell of this action as a defendants' class action. But the gist of the death knell doctrine is that the denial of class action certification is the death knell of the action itself, i.e., that without a class, there will not be an action or actions, as is true of cases when the individual plaintiff's recovery is too small to justify pursuing the action. In this case, as inconvenient as separate individual actions against homeowners may be both for plaintiffs and defendants, such actions can nevertheless be filed and pursued. Thus, this is not an appropriate case for the death knell doctrine.
The cases cited by appellants are of no help to them. Citing Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1451 [56 Cal.Rptr.3d 534], appellants contend that "lower court orders that effectively `demolish' an action as a class action and dispose of the class claims in their entirety" are reviewable on appeal. That of course is true as a general proposition but it is not true of the order entered by the trial court in this case on May 17, 2007. That order neither demolished the class action nor did it dispose of the class claimsit only sustained the demurrer with leave to amend. Appellants also cite Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 806-807 [50 Cal.Rptr.2d 736], for the same proposition that they cite Walsh v. IKON Office Solutions, Inc., but in Kennedy the trial court sustained demurrers to class action allegations without leave to amend, which did put an end to the class action. As we have shown, this is simply not true of the order entered in this case on May 17, 2007.
(4) In sum, under the death knell doctrine only an order denying certification of a class is appealable. The order entered in this case was not such an order.
Because we dismiss the appeal, we note there is nothing in the record to prevent appellants from filing an amended complaint naming a defendant class, albeit with class action representatives that are suitable for the class.
*1553 DISPOSITION
The purported appeal from the order of May 17, 2007 sustaining the Association's demurrer with leave to amend is dismissed. Respondent is to recover its costs in the proceedings in this court.
Cooper, P. J., and Rubin, J., concurred.
NOTES
[1] Appellants had not followed through on the Doe allegations; some property owners voluntarily appeared in the action, opposing appellants' lawsuit by demurring thereto on the ground that indispensable parties had not been joined. These demurrers were sustained with leave to amend.
[2] "Conditions, covenants and restrictions" applicable to Sunset Mesa.
[3] This is correct. Appellants' opposition memorandum closed by stating that the complaint could be amended and that appellants did not intend to give up but intended to exhaust "every reasonable alternative before naming every one of their neighbors in a lawsuit."
[4] Not even an order sustaining a demurrer without leave to amend is appealable; the appeal in such cases is from the judgment of dismissal. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032 [134 Cal.Rptr.2d 260].)
[5] Because we dismiss the appeal, we decline to express a view on the merits of this decision of the trial court. We therefore do not address appellants' contentions that the trial court erred in sustaining the Associations' demurrer to the fourth amended complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265519/ | 657 F.Supp.2d 29 (2009)
John DASTA, Plaintiff,
v.
Harley G. LAPPIN, Director, Federal Bureau of Prisons, Defendant.
Civil Action No. 08-1034 (EGS).
United States District Court, District of Columbia.
September 25, 2009.
*30 John Dasta, Lisbon, OH, pro se.
Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons discussed below, the Court will grant summary judgment for defendant.
I. BACKGROUND
Plaintiff, a federal prisoner, submitted to the Director of the Federal Bureau of Prisons ("BOP") a request under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, for the following information:
1. ADDENDUM TO THE FOOD POLICY 4700.05 FOR THE CHOICES OF MENUS EITHER 1, 2, OR 3 FOR THE NATIONAL FOOD SERVING THAT BEGAN JAN. 06, 08
2. THE MEMO TO FCI ELKTON EXPLAINING HOW TO CHOOSE MENUS 1, 2 OR 3 FOR THE NATIONAL FOOD SERVING THAT STARTED JAN. 06, 08.
Pl.'s Cross-Mot. for Summ. J., Ex. 1 (January 24, 2008 Freedom of Information/Privacy Act Request) (capital letters in original); see Compl. ¶ 1. According to plaintiff, as of the filing of his complaint in June 2008, he "ha[d] not had a response from [BOP]" to his request. Compl. ¶ 6. In this action, which the Court construes as a civil action against the BOP under the FOIA, see 5 U.S.C. § 552(a)(4)(B), plaintiff has demanded a declaratory judgment, an order directing the BOP to produce the requested *31 records, and reimbursement of costs incurred in this action.[1]Id. ¶ 9.
The BOP received plaintiff's FOIA request on February 6, 2008, and assigned it FOIA Request No. 08-03833. Def.'s Mem. of P. & A. ("Def.'s Mot."), Declaration of Monica Potter-Johnson ("Potter-Johnson Decl.") ¶ 3 & Ex. A. Although BOP staff identified no addenda to Program Statement 4700.05, Food Service Manual, the current version of which is dated June 12, 2006, staff located a "memorandum titled National Menu Implementation Procedures," a copy of which had been "forwarded to all Wardens." Potter-Johnson Decl. ¶ 4-5. On June 24, 2008, BOP sent plaintiff "a copy of the memorandum titled National Menu Implementation Procedures." Id. ¶ 6.
II. DISCUSSION
The BOP moves for summary judgment on the ground that it already has released unredacted copies of the requested records, rendering the case moot. See Def.'s Mot. at 5-6. Plaintiff counters that he is entitled to summary judgment because the BOP failed to acknowledge receipt of and respond to his requests timely in accordance with 5 U.S.C. § 552(a)(6)(A)(i). See Pl.'s Cross-Mot. for Summ. J. at 2-3. Only after he filed this civil action did the BOP release the requested records. Id. at 3. For this reason, plaintiff demands an award of costs to cover the portion of the court's filing fee paid to date and photocopies. Id.
A. Summary Judgment Standard
The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir. 1992).
In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are *32 accorded "a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)).
B. The BOP's Compliance with the FOIA
Under the FOIA, federal jurisdiction is dependent upon a showing that the agency has withheld agency records improperly. See 5 U.S.C. § 552(a)(4)(B) (stating that the district court "has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant"); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). "Once the records are produced[,] the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made." Crooker v. United States State Dep't, 628 F.2d 9, 10 (D.C.Cir.1980) (per curiam).
Here, defendant establishes that the BOP has released in full the records plaintiff requested. Absent any showing by plaintiff to the contrary, this matter is moot. See, e.g., Isasi v. Office of Attorney General, 594 F.Supp.2d 12, 14 (D.D.C. 2009) (dismissing a FOIA action as moot where there was no dispute that the requested records had been released without any redactions); West v. Spellings, 539 F.Supp.2d 55, 61 (D.D.C.2008) (dismissing Count I of the Complaint as moot "because [the agency] released the records requested"). "[H]owever fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform." Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982).
C. Plaintiff's Demand for Costs
Release of the requested records does not resolve the matter of plaintiff's demand for costs. The Court may "assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the [plaintiff] has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). A plaintiff substantially prevails if he "has obtained relief through either . . . a judicial order, or an enforceable written agreement or consent decree[,] or . . . a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). The decision to award attorneys' fees and costs is left to the Court's discretion. See Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 705-06 (D.C.Cir.1977) (commenting that the Section 552(a)(4)(E) "contemplates a reasoned exercise of the courts' discretion taking into account all relevant factors"). In making this decision, the Court considers "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents." Davy v. Central Intelligence Agency, 550 F.3d 1155, 1159 (D.C.Cir.2008) (citations omitted). "No one factor is dispositive, although the [C]ourt will not assess fees when the agency has demonstrated that it had a lawful right to withhold disclosure." Id.
The BOP does not dispute plaintiff's assertion that it failed to "determine within 20 days . . . after the receipt of [plaintiff's] request whether to comply with such request and . . . immediately notify *33 [plaintiff] . . . of such determination and the reasons therefore." 5 U.S.C. § 552(a)(6)(A)(i). Its supporting declaration does not explain the delay between its receipt of plaintiff's request and its release of the requested information, and the Court cannot determine on this record whether the BOP's actions were reasonable. It appears that the BOP released the requested records only after plaintiff filed this action, and plaintiff thus demonstrates that he "obtained relief through. . . a voluntary or unilateral change in position by the agency." 5 U.S.C. § 552(a)(4)(E)(ii). The flaw in plaintiff's position, however, is its failure to show that his "claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii).
Plaintiff's interest in and intended use of the information appears to be personal. This is not a case where the public derives some benefit from plaintiff's claim or the BOP's release of the information plaintiff requested. See Davy v. Central Intelligence Agency, 550 F.3d at 1159 (finding that the public benefit derived from the plaintiff's FOIA request and subsequent litigation, which "were intended to compel disclosure of information relating to the activities of [the CIA] in relation to a significant historical event," was a factor favoring the plaintiff's request for fees and costs); Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F.Supp.2d 159, 172-74 (D.D.C.2008) (finding that not-for-profit organization's claim was substantial, because it "attempted to expose the precise connection between three high-ranking elected officials and real estate developer [as such information] surely would aide individuals in making a political choice" and because its "sole goal . . . was to investigate potential official misconduct"). The Court concludes that an award of costs in this case is not warranted.
III. CONCLUSION
The Court concludes that the BOP has fulfilled its obligations under the FOIA by releasing all of the information plaintiff requested. In addition, the Court concludes that plaintiff's claim is insubstantial and denies his demand for costs. Accordingly, the Court grants defendant's motion for summary judgment and denies plaintiff's motion for summary judgment. An Order accompanies this Memorandum Opinion.
NOTES
[1] The proper defendant to a FOIA action is the federal government agency, not its Director. See 5 U.S.C. § 552(a)(4)(B) (granting a federal district court "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant") (emphasis added). Accordingly, the Court will dismiss Harley Lappin as a party defendant. See, e.g., Prison Legal News v. Lappin, 436 F.Supp.2d 17, 22 (D.D.C.2006) (concluding that "the BOP, despite its status as a component agency of the DOJ, is a proper defendant in this FOIA action"); Whittle v. Moschella, 756 F.Supp. 589, 596 (D.D.C. 1991) (citing Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir.1987)) (holding that the Court's jurisdiction is "limited to enjoining agency noncompliance, § 552(a)(4)(B), and consequently no [FOIA] claim may be asserted . . . against individual federal officials") | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265526/ | 657 F.Supp. 1420 (1987)
John D. TAGGART and Bettie F. Taggart, Plaintiffs,
v.
David S. RUTLEDGE; Janette G. Rutledge; David Rutledge Distributing Co., Inc.; Conoco, Inc.; and Continental Oil Company, Defendants.
No. CV 82-96-BU-CCL.
United States District Court, D. Montana, Helena Division.
March 23, 1987.
*1421 *1422 *1423 *1424 Charles E. Petaja, Helena, Mont., Jerome J. Cate, Billings, Mont., for plaintiffs.
Gregory O. Morgan, Bozeman, Mont., Urban L. Roth, Poore, Roth & Robinson, P.C., Butte, Mont., and Jerry Ashby, Houston, Tex., for defendants.
OPINION AND ORDER
LOVELL, District Judge.
This action arises out of Conoco, Inc.'s decision to sell as a "package" its properties in the area of Bozeman, Montana, and the subsequent sale to the plaintiffs of a single station within that package.
Plaintiffs (hereinafter also "Taggarts"), the owners and operators of the Four Corners Conoco station near Bozeman, filed suit in 1982 to recover damages from Conoco, Inc., and Continental Oil Company (hereinafter "Conoco"), and from Conoco jobber David S. Rutledge, for alleged federal antitrust violations as well as numerous alleged state law violations.
Federal subject matter jurisdiction is invoked pursuant to sections 1 and 4 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 4, and section 4 of the Clayton Act, 15 U.S.C. § 15. Venue is properly placed within the District of Montana pursuant to section 12 of the Clayton Act, 15 U.S.C. § 22, and 28 U.S.C. § 1391(b) and (c).
The matter is before the Court on all parties' cross motions for summary judgment.
FACTS[1]
In 1970, plaintiffs John and Bettie Taggart left their home in Illinois and traveled to Montana with the intent of starting a new business. In October, the Taggarts became lessee dealers of a Conoco station known as the "East Main Travel Shoppe" in Bozeman, Montana. In addition to Conoco gasoline products, the Taggarts sold retail convenience store items such as food, refreshments, beer, cigarettes, and souvenirs.
Plaintiffs operated the East Main station until the Spring of 1977. On April 28, 1977, they executed a new Conoco Travel Shoppe Franchise Agreement and moved to the "Four Corners Conoco Travel Shoppe," located approximately seven miles west of Bozeman, at the intersection of the highways to Big Sky Ski Resort and Yellowstone National Park.
During this period of time, Conoco's operation was structured so that all Conoco stations in Montana were owned by Conoco (or leased from third parties) and leased to dealers upon execution of franchise agreements. The franchise agreements prohibited dealers from selling any gasoline as Conoco branded gasoline, except gasoline purchased from Conoco. Conoco gasoline was distributed to the dealers through Conoco "commission agents," who operated bulk plants owned or leased by Conoco. Commission agents derived their income by securing the business of customers (including retail stations, farmers, and various commercial accounts) and delivering Conoco products to those customers. Such agents were not salaried Conoco employees.
David Rutledge commenced employment with Conoco in 1968 in Billings, Montana. From October 1, 1976 until September 30, *1425 1977, Rutledge was a Conoco Sales Manager in Houston, Texas. In the summer of 1977, while vacationing in Montana, Rutledge learned that Conoco's Bozeman commission agent had his agency for sale. Following discussions with the agent, Rutledge agreed to purchase the commission agency for $30,000. Effective October 1, 1977, Rutledge terminated his employment with Conoco and became the Bozeman commission agent.
In January, 1978, the Bozeman area Conoco dealers were informed by letter that Conoco had decided to offer its Montana properties for sale in "packages." This represented implementation in Montana and the Rocky Mountain region of Conoco's MAAP program (Marketing At A Profit), under which Conoco had been selling its bulk plants and service stations throughout the United States since 1976. Initially, the MAAP program excluded the Northwestern Division, of which Montana was a part, except for certain properties in Nebraska and the Dakotas.
Implementation of MAAP in Montana took the Taggarts by surprise because Conoco employees had told them in the past that Conoco would never sell its Montana properties. The letter received by the Taggarts in January 1978, was a form letter used by Conoco to explain to its dealers what the MAAP program involved. Essentially, MAAP consisted of the sale to a single person or entity of all Conoco properties in a given area, including both service stations and bulk plants. The purchaser of the entire package would then become a "jobber" for Conoco, operating out of the bulk plant. Commission agencies were eliminated.
Each Conoco dealer ("incumbent") affected by the package sale was given an opportunity to bid on the package. Conoco personnel traveled to Bozeman in mid-January 1978, to explain the procedures to its area dealers. Several Conoco employees visited the Taggarts at their station to inform them of the MAAP process. Although the parties disagree as to the detail in which the process was explained to plaintiffs, it is undisputed that the Taggarts were told that Conoco's asking price for the Bozeman package was $598,000, plus estimated inventory and accounts receivable of $170,000, or a total of $768,000. All dealers were told that if they wanted additional information on the package they were to submit a signed form to Conoco, upon receipt of which Conoco would provide the information. The Taggarts were informed that the Bozeman package would be sold in its entirety to one person or entity, and that unwanted properties could not be deleted from the package.
The Taggarts, interested primarily in keeping their own station, discussed the package sale with other Bozeman Conoco dealers, including David and Janette Rutledge. Rutledge informed the other area dealers that he intended to bid on the package and, if successful, would sell individual stations to the other dealers. During this time, friction developed between the Taggarts and Rutledge. At one point, Rutledge informed the Taggarts that he would not sell or lease their station to them if he purchased the package.
Afraid of losing their station, the Taggarts considered bidding for the Bozeman properties. They discussed the package with Conoco personnel, and told at least one Conoco employee that they intended to bid one dollar over Conoco's asking price. The Taggarts were then advised to attempt to make a mutually agreeable arrangement with Rutledge. Rutledge received similar advice from Conoco.
On April 5, 1978, the Taggarts and Rutledges executed an Option to Purchase Agreement. Under the terms of this agreement, Rutledge offered to sell the Four Corners station to the Taggarts for $89,000 in consideration for the Taggarts' agreement to refrain from bidding on the package. The agreement was made conditional upon acceptance of Rutledge's bid by Conoco.
By letter dated April 14, 1978, Rutledge submitted a bid of $448,235 for the Bozeman package. Conoco rejected the bid as low, and informed Rutledge he could submit a higher bid. Rutledge was further instructed to delete his bid on a vacant lot owned by Conoco which was not part of the package.
*1426 Rutledge submitted a revised bid on April 29, 1979, in the amount of $508,000, plus a separate offer of $35,200 for the vacant lot. This bid was accepted. Before closing, Rutledge negotiated a reduction in the purchase price by $29,000, attributable to a potential claim against Rutledge and Conoco asserted by a former station lessee. The purchase price was thus reduced to $514,200. Shortly prior to closing, Rutledge learned that one of the station lessees who planned to purchase his station from Rutledge had been denied $40,000 financing. Without the $40,000, Rutledge would have been unable to proceed to close the deal with Conoco. Conoco thus agreed to retain title to the parcel represented by the $40,000 shortfall a parking lot adjacent to the station and had Rutledge execute a promissory note in that amount. Conoco subsequently sold the parking lot to a third party, and released Rutledge from the note.
The Taggarts did not submit a bid on the Bozeman package, nor were they aware (at the time) of the above-referenced changes negotiated by Rutledge.
On October 12, 1978, the Taggarts and Rutledges entered into a written agreement (hereinafter referred to as the Supply Agreement). Under the terms of this agreement, in consideration for the transfer of Rutledge's interest in the Four Corners station to the Taggarts, the Taggarts agree to purchase all gasoline sold from Four Corners exclusively from Rutledge. The Supply Agreement further provides that the gasoline will be purchased at the price charged by Rutledge to other stations in the area, with cash payment to be made within 24 hours of delivery and receipt of invoice. Rutledge agreeds to pay the Taggarts $10.00 monthly pump rental in addition to a rebate of one cent per gallon of gasoline the Taggarts purchase from Rutledge. The agreement carries a term of five years, and gives Rutledge the exclusive right to terminate it upon 30 days' notice and to renew it for additional periods of five years, not to exceed 15 years in aggregate.
Under the Supply Agreement, the Taggarts are given the right to purchase gasoline from other suppliers in the event that Rutledge is unable to meet their demand. The Taggarts are also entitled to a pro rata share of Rutledge's allocation of gasoline from Conoco, and allowed to terminate the agreement if Rutledge fails to provide such pro rata share. Finally, the Supply Agreement gives Rutledge a right of first refusal in the event the Taggarts desire to sell the property. The Supply Agreement, by its terms, was to be recorded in the office of the Gallatin County Clerk and Recorder.
Pursuant to the Option to Purchase and Supply Agreements, Rutledge sold the Four Corners station to the Taggarts for $89,000, and they continue to operate it at a profit. Rutledge continues to operate the Bozeman bulk plant through David Rutledge Distributing, and also operates at the retail level through his other Bozeman stations.
On October 2, 1980, David and Janette Rutledge instituted a civil action against the Taggarts in the District Court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin. The complaint alleged that the Taggarts had purchased gasoline from suppliers other than Rutledge, in breach of the Supply Agreement, and that the Taggarts had, on several occasions, failed to remit payment within twenty-four hours of delivery and receipt of invoice, as required by the Supply Agreement. The Taggarts filed an answer on December 22, 1980, setting forth a general denial, and on January 21, 1981, the action was dismissed with prejudice by stipulation of the parties, as fully settled upon the merits.
LITIGATION BACKGROUND
This action was commenced October 4, 1982. The complaint alleges violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1-7, and state law claims of fraudulent misrepresentation, actual fraud and undue influence, price-fixing in violation of the Montana Unfair Trade Practices and Consumer Protection Act, §§ 30-14-201, et seq., and impossibility of performance of the Supply Agreement. The complaint prays for treble damages under state and federal antitrust laws and actual damages *1427 under the other state claims or, in the alternative, a declaratory judgment that the Supply Agreement is illegal and void as a matter of law.
Plaintiffs move for summary judgment as to liability only on Counts One through Four or for judgment declaring the subject agreement null and void. Plaintiffs claim the following antitrust violations:
1. Conoco's MAAP program violated section 1 of the Sherman Act, 15 U.S.C. § 1, because it concentrated many competitive dealers into one, thereby reducing competition. In support of this contention, plaintiffs assert that since only three major oil companies continue to do business in Bozeman, any attempt by Conoco to further concentrate the market must be viewed as monopolistic in nature and given antitrust scrutiny. Additionally, plaintiffs assert that the package sale process violated section 1 because, although they were not prevented form bidding, the ultimate package sold to Rutledge was materially different from the package offered by Conoco. Plaintiffs maintain that Conoco maneuvered Rutledge into position to become the Bozeman area jobber, thereby precluding them from competing for the position.
2. The Supply Agreement violates section 3 of the Clayton Act, 15 U.S.C. § 14, as an unlawful requirements contract, because it forecloses a substantial amount of competition in the relevant market.
3. The Supply Agreement constitutes a price-fixing agreement, per se unlawful under section 1 of the Sherman Act, because the contract allows Rutledge to fix the minimum price at which the Taggarts can sell gasoline.
4. The Supply Agreement constitutes a contract in restraint of trade in violation of section 1 of the Sherman Act.
5. The defendants have unlawfully engaged in an attempt to monopolize the gasoline market in Bozeman, evidenced by a specific intent to control prices and to destroy competition in interstate commerce, in violation of section 2 of the Sherman Act. In support of this contention, plaintiffs claim that Rutledge has sold gasoline at retail at a price less than his wholesale price to the plaintiffs, which constitutes predatory pricing.
6. The Supply Agreement results in unlawful price discrimination in violation of section 2 of the Clayton Act, as amended by the Robinson-Patman Price Discrimination Act, 15 U.S.C. § 13, in that: Rutledge gives the Taggarts a rebate of one cent per gallon and another retailer two cents per gallon; Rutledge requires plaintiffs to pay cash for their purchases, although credit is extended to others; and Rutledge sells gasoline to plaintiffs' competitors at a lower price than that he charges plaintiffs.
7. The Supply Agreement was unlawfully "tied in" to the sale of the Four Corners station, in violation of section 1 of the Sherman Act. Plaintiffs assert that Rutledge coerced them into accepting the Supply Agreement by threatening to refuse to sell them their station unless they accepted his terms.
Defendants each move for summary judgment on the ground that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.
Rutledge raises the defense of res judicata, claiming that plaintiffs are barred from raising any claims which should have been brought in the prior state action. Rutledge further asserts that plaintiffs' price-fixing claims are specious because there is no agreement between any of the parties to fix resale prices, and that the Robinson-Patman Act claims must fail because the requisite interstate transaction is missing.
Conoco claims entitlement to summary judgment on the following grounds:
1. Conoco's actions in offering and selling the Bozeman properties as a package reflected unilateral decisions based on legitimate business reasons, and thus as a matter of law cannot have any antitrust implications.
2. Plaintiffs' price-fixing allegations must fail as a matter of law because no evidence has been produced tending to show any vertical or horizontal price-fixing.
3. Plaintiffs have offered no evidence of restraint of trade in any relevant market *1428 by any defendant, and no evidence as to their actual damages, and therefore Conoco is entitled to judgment as a matter of law on the Sherman Act, section 1, claims.
4. Plaintiffs' claims under section 2 of the Sherman Act also must fail for the reasons that no evidence has been offered to show a conspiracy between the defendants to destroy competition or to control prices.
5. The exclusive supply contract between the Taggarts and Rutledges has no effect on competition and therefore, as a matter of law, violates no federal antitrust statute.
6. Because all sales and purchases of gasoline products between the Rutledges and Taggarts occurred within the state of Montana, the "transaction in commerce" requirement of the Robinson-Patman Act has not been met and there can be no price discrimination as a matter of law.
7. The four-year statute of limitations for bringing an antitrust action bars plaintiffs' claims under the federal antitrust laws.
DISCUSSION
I. Res Judicata
Defendant Rutledge asserts that plaintiffs' complaint is barred by the doctrine of res judicata on the ground that the claims against Rutledge brought in this action could have been raised in the 1980 state action brought by Rutledge to enforce the supply agreement.
Principles of res judicata have their origin in the full faith and credit clause of the United States Constitution.[2] Pursuant to the authority granted therein, Congress enacted the predecessor of 28 U.S.C. § 1738,[3] under which federal courts generally are required to give preclusive effect to prior state court judgments. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L.Ed. 411 (1813); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).
The Supreme Court has held that section 1738 requires federal courts to give preclusive effect to a state court judgment whenever the courts in the state from which the judgment emerged would do so. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Res judicata concepts will not apply, however, when the party against whom the earlier decision is asserted did not have a full and fair opportunity to litigate the issue in question in the earlier case. Id. at 95, 101 S.Ct. at 415.
Plaintiffs maintain that they have not had a "full and fair opportunity" to litigate the issues raised herein, since the only issues in the state case were whether the Taggarts purchased gasoline from another dealer and the resulting damage to Rutledge, and the action was dismissed by stipulation of the parties.[4] Plaintiffs therefore argue that the legality of the contract was neither raised nor determined and that the resulting judgment cannot have any preclusive effect.
Res judicata principles embody two concepts. "Issue preclusion" refers to the preclusive effect of a judgment in foreclosing litigation of a matter that has been litigated and decided. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 376 n. 1, 105 S.Ct. 1327, 1329 n. 1, 84 L.Ed.2d 274, 278 n. 1 (1985). In contrast, "claim preclusion" refers to the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit. Id. Under section 1738, this Court must refer to the preclusion law of the State of Montana *1429 to determine the effect on this action of the prior state judgment. Allen, 449 U.S. at 96, 101 S.Ct. at 415; Marrese, 470 U.S. at 379, 105 S.Ct. at 1331, 84 L.Ed.2d at 281.
The Court in Marrese noted that "claim preclusion generally does not apply where `[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts....'" Id. at 382, 105 S.Ct. at 1333, 84 L.Ed.2d at 282 (citation omitted). The Court thus declined to adopt a reading of section 1738 that would allow a plaintiff to bring state law claims initially in state court only at the cost of foregoing subsequent federal antitrust claims. Id. at 385, 105 S.Ct. at 1335, 84 L.Ed.2d at 285.
Applying Marrese in conjunction with California preclusion law, the Ninth Circuit Court of Appeals held that a federal antitrust plaintiff was not precluded from bringing a federal action when the state court in a prior action had no jurisdiction to hear the federal claims. Eichman v. Fotomat Corp., 759 F.2d 1434, 1436 (9th Cir. 1985). The court observed that California law requires jurisdictional competency for a judgment to have preclusive effect. Id. On this basis, the court concluded that plaintiff's federal antitrust claims could not be barred by res judicata, but that the pendent state claims based on conduct occurring prior to the date of judgment in the state action were precluded. Id. at 1438.
Montana appears to follow the rule of jurisdictional competency as well:
The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby, as to the parties and their privies, in all other actions in the same or any other judicial tribunal [of] concurrent jurisdiction.
Wellman v. Wellman, ___ Mont. ___, ___, 668 P.2d 1060, 1061 (1983) (quoting Meagher County Water Dist. v. Walter, 169 Mont. 358, 361, 547 P.2d 850, 852 (1976)) (emphasis added). This language indicates the Montana Supreme Court's adherence to the principles expressed in Marrese, namely, that a judgment will have no preclusive effect on claims outside the court's jurisdiction.
Therefore, applying Montana preclusion law within the framework of Eichman and Marrese, the Court concludes that plaintiffs' federal antitrust claims are not barred under the doctrine of res judicata by the judgment entered in state district court in 1981.
The remaining claims raised in the amended complaint are pendent claims based upon state law. Count Two alleges fraudulent misrepresentation against defendants Rutledge and Conoco, arising out of both the bidding process for the Bozeman package and earlier dealings between the parties. Count Three alleges fraud, collusion and undue influence against the defendants generally based upon the same course of dealing.
Under Count Four of the amended complaint, plaintiffs allege that Rutledge's practices under the supply agreement constitute price-fixing in violation of Montana law, and that his purpose in purchasing the Bozeman package was to fix the price of gasoline in the relevant market. Finally, in Count Five, plaintiffs allege that impossibility of performance and illegality of purpose render the supply agreement void.
The issue before the Court is whether any or all of these pendent state claims are barred under Montana preclusion law.
Montana historically has followed a four-pronged test for application of res judicata principles to a subsequent action: (1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same, and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Sullivan v. School District No. 1, 100 Mont. 468, 472, 50 P.2d 252 (1935); Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706 (1963). Although the Montana Supreme Court recently has harkened back to this test as the standard for res judicata, Fox v. 7L Bar Ranch Co., 198 Mont. 201, 645 P.2d 929 (1982), it appears to have done *1430 so only in the context of issue preclusion. Montana Power Co. v. Public Service Commission, ___ Mont. ___, 692 P.2d 432 (1984).
The Montana court has recognized the distinction between claim preclusion and issue preclusion, though not always articulating the precise definitions thereof. See, e.g., Aetna Life and Cas. Ins. Co. v. Johnson, ___ Mont. ___, 673 P.2d 1277, 1280 (1984) ("Collateral estoppel involves preclusion of issues previously litigated and res judicata is preclusion of claims that have been litigated."). When directly confronted with the issue, however, the court clearly has followed the general rule governing claim preclusion. As early as 1935, the court recognized that a judgment is "binding and conclusive between all the parties to the suit and their privies and successors in interest, as to all matters adjudicated therein and as to all issues which could have been properly raised, irrespective of whether the particular matter was in fact litigated." Kramer v. Deer Lodge Farms Co., 116 Mont. 152, 156, 151 P.2d 483, 484 (1935). Recently, the court stated: "It is well settled that a judgment or order is conclusive as to all matters which could have been litigated under the issues raised by the original pleadings." Matter of Estate of Pegg, ___ Mont. ___, 680 P.2d 316, 320 (1984). See also O'Neal, Booth & Wilkes, P.A. v. Andrews, ___ Mont. ___, 712 P.2d 1327, 1329 (1986) ("`Once there has been full opportunity to present an issue for judicial decision in a given proceeding ... the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised, else judgments might be attacked piecemeal and without end.'" (citation omitted.)).
Drawing from Montana case law, it seems evident that state law applies traditional principles of res judicata and collateral estoppel in determining whether a subsequent action is precluded.
The most important task in framing the vocabulary of res judicata is to distinguish clearly between two very different effects of judgments. The first is the effect of foreclosing any litigation of matters that never have been litigated, because of a determination that they should have been advanced in an earlier suit. The second is the effect of foreclosing relitigation of matters that have once been litigated and decided.
18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 at 42. Plaintiffs appear to recognize only the latter effect of the 1981 judgment by arguing that the contract's legality was neither raised nor determined. Under principles of claim preclusion, the Court' examination clearly must look further than to what was actually determined in the prior suit.
It is argued that the prior action has no preclusive effect because its dismissal was mutually requested by the parties without any matters having been litigated and decided. Thus, plaintiffs submit, they never had a full and fair opportunity to litigate the claims now presented. The Supreme Court of Montana, addressing the preclusive effects of a prior stipulation, has reached differing results. In Smith v. Baxter, 148 Mont. 291, 419 P.2d 752 (1966), the court gave preclusive effect to a stipulated dismissal upon subsequent administrative proceedings. It was there held that a prior stipulation with prejudice in compromise of litigation in state district court, as fully and finally settled on the merits, bars a subsequent adversarial administrative proceeding where the same parties, subject matter, and prayer for relief are involved in both matters. Id., 419 P.2d at 754.
Following the same line of reasoning, the court held that dismissal of one defendant by stipulation was res judicata as to other defendants whose alleged liability was premised upon respondeat superior. State ex rel. City of Havre v. District Court, 187 Mont. 181, 609 P.2d 275, cert. denied sub nom., Boucher v. City of Havre, 449 U.S. 875, 101 S.Ct. 219, 66 L.Ed.2d 97 (1980). The court reasoned that "a stipulation of dismissal with prejudice of a defendant is tantamount to a judgment on the merits; and accordingly, such a dismissal with prejudice is res judicata as to every issue reasonably raised by the pleadings.... The Court will look at the dismissal with prejudice on its face, and will not *1431 look behind the words `with prejudice.'" Id., 609 P.2d at 278.
A contrary result was reached in Hughes v. Salo, 203 Mont. 52, 659 P.2d 270 (1983), in which the court held that an action to enforce a foreign judgment was not res judicata as to a subsequent action on the merits of the underlying obligation. Distinguishing City of Havre, the court stated that where "neither the pleadings ..., nor the stipulations and accompanying dismissal with prejudice, made reference to or `reasonably raised' any issue regarding the merits [of the subsequent litigation,]" res judicata concepts were not applicable. Id., 659 P.2d at 274.
Defendant Rutledge's state court action against the Taggarts was, in essence, an action to enforce the contract between them. The stipulation for dismissal of that action was "tantamount to a judgment on the merits." City of Havre, 609 P.2d at 278. See also Bloomer Shippers Assn. v. Illinois Central Gulf Railroad Co., 655 F.2d 772 (7th Cir.1981). Accordingly, the Taggarts cannot now be heard on issues reasonably raised or which could have been raised during that proceeding. The crux of the inquiry, then, is whether any or all of Taggarts' pendent state claims should have been raised in the prior action.
Under the Montana Rules of Civil Procedure, a defendant in a civil action is required to set forth as a counterclaim any existing claim against the plaintiff "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim...." Rule 13(a), Mont.R. Civ.P. The purpose of Rule 13(a) is "to bring all logically related claims into a single litigation, thereby avoiding a multiplicity of suits." Julian v. Mattson, ___ Mont. ___, 710 P.2d 707, 709 (1985), (citing 20 Am.Jur.2d Counterclaim, Recoupment, Etc. § 15).
The Supreme Court of Montana has given strict interpretation to Rule 13(a), applying it to bar claims which should have been raised as compulsory counterclaims in a prior action. For example, in O'Neal, Booth & Wilkes, P.A. v. Andrews, supra, the plaintiff had sued the defendant in Florida state court seeking payment of attorneys' fees. Judgment was entered in plaintiff's favor for the sum of $3,229.63. Subsequently, plaintiff initiated suit in Montana to recover the balance due from defendant. The defendant then asserted a counterclaim, alleging claims of breach of fiduciary duty, fraud, coercion and others. Affirming summary judgment in favor of the plaintiff, the Montana Supreme Court held that the counterclaim was barred by the doctrine of res judicata since it arose out of the same transaction that was at issue in the Florida litigation and should have been raised therein as a compulsory counterclaim. 712 P.2d at 1329.
A similar result was reached in Robinson v. First Security Bank of Big Timber, ___ Mont. ___, 728 P.2d 428 (1986), in which a 1982 consent judgment was held to preclude the plaintiffs' subsequent complaint which should have been raised as a compulsory counterclaim to the prior suit. Observing that "a compromise agreement, when the basis for a final judgment, operates `as a merger and bar[s] all pre-existing claims and causes of action,'" the court held that the dismissal of the first action concluded all pre-existing claims between the parties and that plaintiffs' claims in the second suit were thus barred by res judicata. Id., 728 P.2d at 430 (quoting Webb v. First National Bank of Hinsdale, ___ Mont. ___, 711 P.2d 1352, 1355 (1985)).
In order for Rule 13(a) to give preclusive effect to a prior judgment, the claims raised in the subsequent action must arise out of the same transaction or occurrence that formed the subject matter of the prior suit. Julian v. Mattson, 710 P.2d at 709. The court in Julian defined "transaction" in the following manner:
that combination of acts and events, circumstances and defaults, which viewed in one aspect, results in the plaintiff's right of action, and viewed in another aspect, results in the defendant's right of action ..., and it applies to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect, or breach of contract. *1432 Id. at 710 (quoting Scott v. Waggoner, 48 Mont. 536, 545, 139 P. 454, 456 (1914)).
Simply stated, the issue is whether the claims raised in the subsequent action are "logically related" to those raised in the first action by the opposing party. See USM Corp. v. SPS Technologies, Inc., 102 F.R.D. 167, 170 (N.D.Ill.1984); Springs v. First National Bank of Cut Bank, 647 F.Supp. 1394 (D.Mont.1986).
Here, the Court concludes that the allegations raised in Counts IV and V of the Taggarts' complaint arose out of the same transaction as the Rutledges' 1980 state litigation and should have been raised therein as compulsory counterclaims under Rule 13(a). The "transaction" at issue in both cases was the execution of the October 1978 Supply Agreement between the Taggarts and Rutledges. The claims are "logically related" because Rutledge filed suit to enforce the provisions of the agreement, and Taggarts' claims in Counts IV and V of the complaint challenge the validity and enforceability of those provisions. Any claims plaintiffs had as to the legality of the contract or to the enforceability of certain provisions thereof were compulsory counterclaims within the meaning of Mont. R.Civ.P. 13(a) and are barred by res judicata from being raised in this action.
The allegations contained in Counts II and III of the complaint cannot be barred by principles of res judicata or under Rule 13(a). Counts II and III assert claims against Conoco, which was not a party to the state litigation, and broaden the relevant transaction considerably, to include events other than the negotiation and execution of the Supply Agreement. In contrast to Counts IV and V, the claims raised in Counts II and III do not go to the contract itself or to its application, but complain of actions occurring prior to the parties' execution of the agreement.
Therefore, Counts IV and V of the Taggarts' complaint will be dismissed as barred by the doctrine of claim preclusion.
II. Antitrust Issues
The parties have cross motions for summary judgment as to each of the plaintiffs' federal antitrust claims. Under Fed.R. Civ.P. 56(c), summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. "A `material' fact is one that is relevant to an element of claim or defense and [the] existence [of which] might affect the outcome of the suit." T.W. Electrical Service Inc. v. Pacific Electrical Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987).
The Supreme Court has indicated "that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles." Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). The law of the Ninth Circuit, however, is that Poller "merely teaches caution" and does not preclude summary judgment in antitrust actions where appropriate. Barry v. Blue Cross of California, 805 F.2d 866, 871 (9th Cir.1986) (quoting Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9th Cir.1985)). Generally, summary judgment is appropriate in antitrust cases when there is no "significant probative evidence tending to support the complaint." Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1406 (9th Cir. 1984).
The moving party has the initial burden of proving the absence of factual issues. However, once this burden is met, the opposing party must come forward with "sufficient probative evidence" tending to support his claim or defense. See Richards v. Nelson Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), and cases cited therein. In Sherman Act section 1 cases, "a moving defendant may meet its burden by proffering `an entirely plausible and justifiable explanation of [its] conduct' that is `consistent with proper business practices.'" Barnes, 759 F.2d at 680 (quoting Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 672 (9th Cir.1980)). The plaintiff must respond with "more than mere hearsay and legal conclusions." Kaiser Cement Corp. v. Fishback & Moore, Inc., 793 F.2d 1100, 1104 (9th Cir.1986). In the absence of a *1433 genuine issue of material fact, if the plaintiff "`does not present a record sufficient to support a reasonable finding in his favor, a district court has a duty to grant the motion for summary judgment.'" O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir.1986) (quoting Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260 (9th Cir.), cert. dismissed, 464 U.S. 956, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983)).
To prevail in their claims, the Taggarts "must establish a violation of the antitrust laws and an actual injury attributable to something the antitrust laws were designed to prevent." Kaiser Cement, 793 F.2d at 1104. Defendants' burden is to show that plaintiffs have raised no material factual issues which could be resolved by a trier of fact in plaintiffs' favor. Plaintiffs are entitled to have reasonable inferences drawn in their favor, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986), but once defendants have met their burden cannot defeat summary judgment without presenting "specific facts showing that there is a genuine issue for trial." Rule 56(e), Fed.R.Civ.P.
Thus, the court's ultimate inquiry is to determine whether the "specific facts" set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.
T.W. Electrical Service, 809 F.2d at 631 (citing Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)).
With these considerations in mind, the Court turns to the substance of the parties' motions.
A. Package Sale
Plaintiffs claim that the decision of Conoco to sell its Bozeman properties as a package violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, because the effect was to condense many competitive dealers into one, thereby reducing competition. Plaintiffs complain that only three major oil companies continue to do business in the Bozeman area and that the attempt by one to further concentrate the market must be viewed as monopolistic in nature and given antitrust scrutiny.
Plaintiffs further assert that the Bozeman package sale was the result of a conspiracy between Conoco and Rutledge to place Rutledge in a position to control the Bozeman gasoline market. They claim that Conoco manipulated the bidding process to guarantee Rutledge's success, and that Conoco thereafter ensured that Rutledge retained sufficient economic leverage over the local station operators to appreciably restrain competition in the supply and sale of gasoline by Conoco dealers in the area.
Conoco asserts that its decision was unilateral and made for legitimate business reasons and thus, as a matter of law, the package sale did not violate any antitrust laws.
Section 1 of the Sherman Act prohibits "[e]very contract, combination ..., or conspiracy in restraint of trade or commerce. ..." 15 U.S.C. § 1. To establish a section 1 violation, an antitrust claimant must prove three elements: (1) an agreement or conspiracy, (2) resulting in an unreasonable restraint of trade, and (3) causing "antitrust injury." Rickards v. Canine Eye Registration Foundation, 783 F.2d 1329, 1332 (9th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 180, 92 L.Ed.2d 115 (1986).
It is well established that independent action by a single manufacturer or seller of a product cannot give rise to a section 1 violation. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). "A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, so long as it does so independently." Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775, reh'g denied, 466 U.S. 994, 104 S.Ct. 2378, 80 L.Ed.2d 850 (1984). Accord Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1191 (9th Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985).
Numerous antitrust cases have arisen out of the termination of distributors or dealerships. Uniformly the courts refuse to find antitrust implications if the termination *1434 reflected the unilateral decision of the manufacturer. See Sierra Wine and Liquor Co. v. Heublein, Inc., 626 F.2d 129, 133 (9th Cir.1980); Sadler v. Rexair, Inc., 612 F.Supp. 491, 493 (D.Mont.1985) ("It is not an antitrust violation for a manufacturer to change distributors even if the affect [sic] is to seriously damage the former distributor's business."); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir.1969), cert. denied sub. nom., Hawaiian Oke & Liquors, Ltd. v. Joseph E. Seagram & Sons, Inc., 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970).
Plaintiffs assert that the Bozeman sale was not merely a unilateral decision by Conoco to reduce the number of distributors. Rather, they assert, the sale was the product of a conspiracy between Conoco and Rutledge to reduce competition.
A similar argument was made in Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107 (5th Cir.1979). There, Service Oil Company, a long-time Texaco distributor in the Waco, Texas, area, decided to sell its assets and go out of the petroleum business. Plaintiff, interested in acquiring the distributorship, began negotiating with Service Oil. Any sale was subject to approval by Texaco, which retained a purchase option. Texaco determined that it should assign its purchase option to Poweram Oil, which already distributed Texaco products in the area. Poweram exercised the option and purchased the assets and properties of Service Oil. Plaintiff sued, alleging that Texaco and Poweram conspired to exclude it from the market to accomplish suppression of intrabrand competition and retail price maintenance.
The court ruled that the case involved nothing more than a wholly unilateral refusal to deal by a seller (Texaco) and the choice of one replacement dealer (Poweram) instead of another potential replacement dealer (Aladdin) based on legitimate reasons. Id. at 1112. Recognizing that the conduct of Texaco and Poweram had to be examined together to determine whether any antitrust violation occurred, the court stated that such joint conduct, without more, does not violate the antitrust laws. Id. at 1114 (citing Joseph E. Seagram & Sons, 416 F.2d at 78). Thus, the court reasoned, Texaco's assignment of the purchase option to Poweram and simultaneous refusal to grant Aladdin a distributorship were unilateral decisions protected by the Colgate doctrine. Id. at 1115.
The court inquired further, however, examining Aladdin's contention that Texaco's refusal to deal produced an unreasonable restraint of trade because it was designed to lessen intrabrand competition. Finding no evidence to support this argument, the court rejected it as "inartful speculation." Id. at 1116. See also Carlo C. Gelardi Corp. v. Miller Brewing Co., 502 F.Supp. 637, 642 (D.N.J.1980) ("`[I]t is indisputable that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B and that such a transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller's termination of A.'" (quoting Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3d Cir.1972)).
Here, Conoco points to deposition testimony of its representatives in support of its argument that the package sale was a unilateral decision based on legitimate business objectives. Conoco's 1976 studies of its marketing practices concluded that its system was no longer profitable, and it developed the MAAP program in an effort to obtain a better return on its investments. In late 1977, Conoco determined it would extend the plan to its Rocky Mountain properties. Conoco states that package sales were utilized in order to "simplify the disposal of assets in a time frame that was manageable by selling them in clusters," and to design packages "that would be logistically or financially sound for a jobber to operate." (Conoco Statement of Fact No. 61.) Plaintiffs maintain that the package system was designed to broaden the range of prospective buyers and to secure sales to existing commission agents. (Plaintiffs' Statement of Facts at p. 5.)
The evidence shows that Conoco had legitimate business reasons for implementing the MAAP program. Plaintiffs do not dispute these reasons, nor have they presented *1435 any evidence that MAAP was the product of anticompetitive motives or had anticompetitive effects.
The unilateral decision of a single manufacturer to rearrange its distribution structure by limiting or increasing the number of its dealers or transferring its business to different dealers does not violate the Sherman Act.
Seabord Supply Co. v. Congoleum Corporation, et al., 770 F.2d 367, 374 (3d Cir. 1985).
Plaintiffs argue, however, that even if the MAAP System itself has no antitrust consequences, its application to the Bozeman situation violated the Sherman Act because of the alleged conspiracy between Conoco and Rutledge to guarantee that Rutledge was the successful bidder. Plaintiffs assert that Rutledge was given information about the package that was not available to them, and that the package as sold was different than the package advertised. In essence, plaintiffs' complaint is that the bidding process was a sham and that Conoco never intended to allow any potential purchaser other than Rutledge to prevail.
The evidence before the Court shows that plaintiffs never actively negotiated with Conoco for purchase of the Bozeman package, and never even submitted a bid. Rutledge, on the other hand, eagerly pursued the purchase of the properties and made serious investigation before submitting his bid. His initial bid was rejected; however, since he was the only bidder, Conoco negotiated with him to reach an acceptable bargain. Plaintiffs have produced no "specific facts" from which a reasonable inference could be drawn that Conoco and Rutledge conspired to exclude them from the bidding process.
Moreover, plaintiffs have cited no support for their position that the bidding practices in which they speculate Conoco and Rutledge were engaged violated section 1 of the Sherman Act. At least one court has held to the contrary. In Sitkin Smelting and Refining Co. v. FMC Corp., 575 F.2d 440 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978), the court ruled that the plaintiff's allegations of sham bidding did not give rise to a Sherman Act antitrust action. There, the plaintiff and a third party had both bid on the defendant's properties. Plaintiff alleged that the other party was allowed to submit a higher bid after it learned of plaintiff's bid and that the higher bid was then accepted. The court characterized plaintiff's definition of sham bidding "in the sense that one bidder was preordained to obtain the contract if that bidder would match the high bid submitted." Id., 575 F.2d at 445.
The court first rejected the idea that the mere existence of such "sham bidding" was per se violative of the Sherman Act. Id. at 447. It then went on to consider the practice under the "rule of reason" analysis that is, whether its purpose and effect imposed an undue restraint on commerce. The court found that plaintiff had produced no evidence of any anticompetitive purpose or effect in the relevant market. Id. Absent such evidence, the court concluded, the bidding practice alone was insufficient to sustain an antitrust violation.
All but one of the bidders were destined to come up "empty-handed" with or without the sham bidding. The agreement gave a preference to Krentzman. A manufacturer or trader, however, is free to choose the customers to whom it wishes to sell so long as its conduct has no market control or monopolistic purpose or effect. [Citations omitted.]
Defendant's right to exercise this free choice is not limited because of the "sham" and the "sham" does not render the exercise of the choice a violation of the Sherman Act. Conduct not within the Act is not made into an antitrust violation by accompanying conduct which is reprehensible under some moral or ethical standard or even illegal under some other law.
Id.
In this case, plaintiffs rely only on their suspicions and "feelings" to support their conclusion that an illegal conspiracy existed between Conoco and Rutledge with respect to the package sale. "[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. ... To survive a motion for *1436 summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence `that tends to exclude the possibility' that the alleged conspirators acted independently." Matsushita Elec. Indus. Co. v. Zenith Radio, ___ U.S. ___, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986) (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. at 1470). The only evidence in the record before the Court is that Conoco acted independently both in its decision to sell the Montana properties and in its decision to sell the Bozeman package to Rutledge.[5]
B. Attempted Monopoly
Plaintiffs accuse Conoco and Rutledge of attempting to monopolize the Conoco operation in the Bozeman area, and assert that Conoco, by placing significant control of its Bozeman properties in the hands of Rutledge, has attempted to restrain competition in an already limited market. Most of the facts on which plaintiffs' attempted monopoly claims are grounded arise out of the same actions and events discussed in the preceding section. Here, however, plaintiffs assert a violation of section 2 of the Sherman Act, 15 U.S.C. § 2,[6] and the Court must proceed under a different analysis.
A successful claim of attempt to monopolize requires proof of three interrelated elements:
(1) A specific intent to control prices or destroy competition in some part of commerce;
(2) Predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and
(3) A dangerous probability of success.
Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1192 (9th Cir.1984) (quoting Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1027 (9th Cir.1981)), cert. denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 61 (1982). Also recognized as a fourth element of the test is proof of causal antitrust injury. Marsann Co. v. Brammall, Inc., 788 F.2d 611, 613 (9th Cir.1986).
The interrelationship of these elements results from the ability to infer certain elements by establishing others. For example, if specific intent to monopolize cannot be proven directly, such intent may be inferred from anticompetitive conduct. Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 887 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). To obtain the benefit of such an inference, there must be proof of conduct falling into one of two categories, "`either (1) conduct forming the basis for a substantial claim of restraint of trade, or (2) conduct that is clearly threatening to competition or clearly exclusionary.'" Id. (quoting Wm. Inglis & Sons, 668 F.2d at 1029 n. 11).
Similarly, a dangerous probability of success may be inferred either (1) from direct evidence of specific intent plus proof of conduct directed to accomplishing the unlawful design, or (2) from evidence of conduct alone, provided the conduct is also the sort from which specific intent can be inferred. Wm. Inglis & Sons, 668 F.2d at 1029. Thus, "conduct is the most critical element.... Predatory or anticompetitive conduct ... can support an inference of specific intent and dangerous probability of success." Airweld, 742 F.2d at 1192.
The question then becomes the extent to which plaintiffs must prove predatory or anticompetitive conduct; if the element of conduct is not satisfied, the court need look no further.
To satisfy the attempted monopoly test, the conduct of which the plaintiff complains "must be such that its anticipated benefits [are] dependent upon its tendency to discipline or eliminate competition and thereby enhance the [defendant's] long term ability to reap the benefits of monopoly *1437 power." Wm. Inglis & Sons, 668 F.2d at 1030.
A common method of establishing anticompetitive conduct to show attempted monopoly is proof that the defendants have engaged in predatory pricing. Plaintiffs assert that Rutledge practices predatory pricing by selling gasoline at retail prices lower than the wholesale prices he charges to plaintiffs. Plaintiffs state they are aware of two or three occasions on which this has happened.
Pricing is considered predatory "`only where the firm foregoes short-term profits in order to develop a market position such that the firm can later raise prices and recoup lost profits.'" Drinkwine v. Federated Publications, Inc., 780 F.2d 735, 739 (9th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1471, 89 L.Ed.2d 727, reh'g denied, ___ U.S. ___, 106 S.Ct. 2002, 90 L.Ed.2d 681 (quoting Wm. Inglis & Sons, 668 F.2d at 1031). The Ninth Circuit generally approves of cost-based methods of determining when a price is predatory. See Airweld, 742 F.2d at 1193. Cost-based methods involve a determination of numerous costs of the seller who is accused of predatory pricing. These include fixed costs, variable costs, average costs, and marginal costs, and predatory pricing is generally established by proof that the prices charged by the defendant were below his marginal cost or average variable cost. Id. Without discussing the specific definitions and methods of proof, it suffices here to say that the plaintiff must show that the defendant is charging prices which are less than his costs, i.e., that he is losing profits. This then gives rise to an inference that the defendant is attempting to drive his competitors out of business by undercutting their prices, even though he foregoes short term profits; the end result is a monopoly in the relevant market. See generally Wm. Inglis & Sons, 668 F.2d at 1031-39.
Plaintiffs have not even mentioned Rutledge's costs, must less determined his average variable costs or marginal costs. They have alleged only that on several occasions his wholesale prices have exceeded his retail prices. These allegations clearly are insufficient to support a claim of predatory pricing. The Ninth Circuit stated in Zoslaw v. MCA Distributing Corp., 693 F.2d at 888, that the onus is upon the plaintiff to prove that the defendant "`sacrificed greater profits or incurred greater losses than necessary in order to eliminate the plaintiff.'" The court further reasoned:
In the absence of such a claim on the part of [the plaintiff], much less any evidence to that effect, [plaintiff's] predatory pricing claim is inadequate as a matter of law. Indeed, any other conclusion would support the perverse rationale that a defendant may not compete by lowering its prices "if competition would injure its competitors."
Id. [citations omitted].
On at least one occasion, the Ninth Circuit has departed from its strict rule of comparing retail price and average variable cost, and remanded the case to permit the plaintiff "to attempt to show by means other than cost-price comparisons that the anticipated benefits of [the defendant's] price `depended on its tendency to eliminate competition.'" Marsann Co. v. Brammall, Inc., 788 F.2d at 615 (quoting Wm. Inglis & Sons, 668 F.2d at 1034) (emphasis in original). The ruling in that case, however, hinged on the difficulty of fixing the identity of the "product" for which to establish average variable costs, and on the fact that the alleged predatory price was offered only to a select customer. It appears from these authorities that Taggarts have not even reached the threshold issue necessary to an allegation of predatory pricing.[7]
*1438 The Ninth Circuit has held that "[i]n the absence of predatory conduct or per se violations, an antitrust defendant may still be found liable for attempted monopoly, but only if the antitrust plaintiff can establish a relevant market as a framework for evaluating behavior that does not rise to the level of a substantial restraint of trade." Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1214 (9th Cir.1983), cert. denied, 471 U.S. 1007, 105 S.Ct. 1874, 85 L.Ed.2d 166, reh'g denied, 471 U.S. 1220, 105 S.Ct. 2369, 86 L.Ed.2d 268 (1985). The Court has concluded that plaintiffs are unable as a matter of law to establish predatory pricing. Their other assertions of anticompetitive conduct focus on the reduction of competition in the retail gasoline sales market by consolidation of the Bozeman area Conoco dealers. As discussed infra, however, plaintiffs have produced no evidence whatsoever that the alleged anticompetitive conduct of the defendants has had, or threatens to have, a restrictive effect on competition in either the retail or wholesale gasoline sales market in the Bozeman area or in any other relevant geographical area.
Plaintiffs having come forward with no "specific facts" tending to show predatory or anticompetitive conduct, their allegations of attempted monopoly must fail as a matter of law.
C. Price Discrimination
The Taggarts complain that Rutledge is engaging in illegal price discrimination in violation of section 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a),[8] by use of discriminatory credit and rebate terms and by charging different wholesale prices to different retailers.
Under the law of the Ninth Circuit, in order to establish jurisdiction under section 2(a) of the Robinson-Patman Act, a plaintiff must demonstrate:
(1) that the defendant is "engaged in interstate commerce;"
(2) that the price discrimination occurred "in the course of such commerce;" and
(3) that "either or any of the purchases involved in such discrimination are in commerce."
Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 877 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). The Robinson-Patman Act's "in commerce" requirements are more stringent than the "affecting commerce" standards of section 1 of the Sherman Act. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-95, 95 S.Ct. 392, 398, 42 L.Ed.2d 378 (1974). "The recognized purpose of the Robinson-Patman Act [is] to reach the operations of large interstate businesses in competition with small local concerns." Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 238, 71 S.Ct. 240, 243, 95 L.Ed. 239 (1951). Thus, the reach of the Robinson-Patman Act "extends only to persons and activities that are themselves `in commerce.'" Gulf Oil, 419 U.S. at 194, 95 S.Ct. at 398.
The Supreme Court has construed the "in commerce" requirement "to denote only persons or activities within the flow of interstate commerce the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer." Gulf Oil, 419 U.S. at 196, 95 S.Ct. 399. Therefore, unless Rutledge's alleged discriminatory sales occur in the course of interstate activities and at least one of such sales was made in interstate commerce, plaintiffs' claims must fail. Id.
Plaintiffs contend that the "in commerce" requirement is satisfied.
*1439 The requirement of "commerce" appears to be met. The Defendants are clearly engaged "in commerce," acting in the cause [sic] of commerce, and the purchases by Plaintiffs of gasoline are "in commerce."
Plaintiffs' Opening Brief at 68. Plaintiffs argue that the gasoline in question is produced outside the state of Montana, that it is transported to Montana through an interstate pipeline, and that it is sold to many interstate travelers passing through Montana. Plaintiffs further cite one occasion on which Rutledge purchased gasoline directly from a Conoco jobber in the State of Idaho. Aside from that single purchase, which Rutledge admits, plaintiffs do not dispute the fact that Rutledge purchases his gasoline products from Conoco through a terminal in Montana, and sells exclusively to Montana gasoline retailers, generally within the Bozeman area. Plaintiffs have submitted no evidence of any sale by Rutledge outside Gallatin County, Montana.
The actions of Conoco, and its sales of gasoline to Rutledge, are not at issue under this claim because plaintiffs' price discrimination allegations are directed solely against Rutledge. Consequently, only the conduct of Rutledge may be considered in analyzing the Robinson-Patman allegations.
It cannot be disputed that although Rutledge purchases his Conoco products within Montana some originate outside the state and are transported across state lines for resale. The only issue is whether, at the time Rutledge sells such products to the Gallatin retailers, they are still within the "flow of commerce." The Ninth Circuit has recognized that "if goods from out of state are still within the `practical, economic continuity' of the interstate transaction at the time of the interstate sale, the latter sale is considered `in commerce' for purposes of the Robinson-Patman Act." Zoslaw, 693 F.2d at 877. The "flow of commerce" ends when the goods reach their intended destination. Id. at 878.
Reviewing principles for determining when a product has left the flow of commerce, the court in Zoslaw cited factors including whether goods coming from out of state respond to a particular customer's order or anticipated needs, or whether they are put in a storage facility for general inventory purposes, with no particular customer's needs in mind. Id. The court observed that problems arise with sales by out-of-state producers to distributors or retailers who resell the goods at the allegedly discriminatory price.
In such cases the analysis of intent is useful in determining whether the initial sale from the out of state producer bears sufficient relationship to the subsequent allegedly discriminatory sale to conclude that the latter sale is part of a continuous interstate transaction and hence in commerce.
Id. at 879. The court indicated that the analysis must consider the extent to which the subsidiaries act as independent distributors in their pricing and marketing decisions, "in effect, breaking the flow of commerce between the manufacturer and the local retailer." Id. at 880. This becomes a jury question if there is a legitimate question of material fact. Id.
Where goods are shipped interstate, and only "pass through" a warehouse on their way to a specific customer, the flow of commerce is not interrupted. Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460 (1942). The Supreme Court held in Walling that the "ritual of placing goods in a warehouse ... [which] interrupts but does not necessarily terminate their interstate journey," does not stop the flow of commerce if such goods are destined for a particular customer. Id. The Court concluded that "if the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destinations, they remain `in commerce' until they reach those points." Id. The flow of commerce ends, however, if the distributor is sufficiently independent of the interstate manufacturer. Zoslaw, 693 F.2d at 880.
Construing the second jurisdictional requirement of the Robinson-Patman Act, the price discrimination does not occur "in the course of" interstate commerce unless interstate transactions are involved in the alleged violation. 16C J. Von Kalinowski, *1440 Business Organizations ¶ 26.02[2]. "Essentially, the second element removes from the reach of the statute the activities of an intrastate seller who purchases goods in interstate commerce." Id. at 26-15 to -16.
The undisputed facts show that Rutledge is an independent Conoco jobber who purchases gasoline from a Conoco terminal in Bozeman and resells it to area retailers at a price he establishes himself. Plaintiffs claim that Rutledge is merely an agent of Conoco, but have presented no facts in support of this claim. The Jobber Franchise Agreement entered into between Conoco and Rutledge expressly provides that the jobber is an "independent businessman;" it does not constitute an exclusive supply agreement. Plaintiffs do not dispute that Rutledge exercises exclusive control over his business practices, owns his own equipment, hires and fires his own employees, and directs the operations of his business. Under the franchise agreement, the jobber is obligated to "conduct its business operations according to standards which will promote the continuing good reputation of Continental and other Continental Jobbers...." Plaintiffs argue that Conoco has the right to terminate Rutledge's franchise agreement if it disapproves of his practices. They offer no evidence, however, to support their claims that Conoco has any control over Rutledge's operations.
Viewing these facts within the framework established in Zoslaw, it is clear that Rutledge comes within the definition of "independent distributor" contemplated by the court, "breaking the flow of commerce between the manufacturer and the local retailer." Id., 693 F.2d at 880.[9] To rule otherwise would fly in the face of the established purpose of the Robinson-Patman Act, since Rutledge is exclusively an intrastate seller and all of the alleged discriminatory pricing practices occurred with intrastate sales. The facts alleged here simply are not within the contemplated application of section 2(a), which requires that "at least one of the two transactions which, when compared, generate a discrimination must cross a state line." Gulf Oil, supra, 419 U.S. at 200, 95 S.Ct. at 401.
D. Price Fixing
Plaintiffs claim that the exclusive supply agreement allows Rutledge to fix the retail price of gasoline in violation of section 1 of the Sherman Act. Plaintiffs agree that the contract does not set a minimum price at which they must sell gasoline; they assert, however, that Rutledge controls that price by raising or lowering the wholesale price. Because plaintiffs are compelled to purchase from Rutledge and cannot buy at a lower price from another distributor, they assert that the supply agreement constitutes an illegal vertical price fixing arrangement.
The United States Supreme Court has long held that "there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The Ninth Circuit has recognized four categories of restraints to be per se unreasonable under this rule: horizontal and vertical price-fixing; horizontal market division; group boycotts or concerted refusals to deal; and tie-in sales. Gough v. Rossmoor Corp., 585 F.2d 381, 386 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). Recently, however, the Circuit Court indicated that allegations of vertical price-fixing generally should be evaluated under the "rule of reason" rather than considered to be per se antitrust violations. 49er Chevrolet v. General Motors Corporation, 803 F.2d 1463, 1468 (9th Cir.1986).
Normally, before the per se rule will be applied, there must be sufficient *1441 evidence to establish a combination or conspiracy under section 1. Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1261 (9th Cir.1983), cert. dismissed, 464 U.S. 956, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983). The requirement of a conspiracy will be satisfied, however, if the plaintiff can prove that the defendant coerced him into adhering to a price schedule and that the plaintiff acquiesced therein. Id. at 1266 (citing Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968)).
In this case, because of the position of Rutledge as both a retailer and distributor, plaintiffs have alleged both horizontal and vertical price-fixing. Horizontal price-fixing occurs when two or more competitors make an arrangement that interferes with the setting of prices by free market forces. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Vertical price-fixing is an agreement to fix resale prices to third parties. United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S.Ct. 503, 511, 4 L.Ed.2d 505 (1960). Plaintiffs contend that Rutledge has engaged in horizontal price-fixing in his capacity as their competitor and in vertical price-fixing in his capacity as their supplier.
Before the per se doctrine can be invoked under a theory of vertical price fixing, evidence of resale price maintenance must be present. Westinghouse Electric Corp. v. CX Processing Laboratories, Inc., 523 F.2d 668, 673 (9th Cir.1975). There can be no violation of section 1 where there is no evidence of any attempt by the antitrust defendant to dictate resale prices to its distributor nor evidence that the defendant intended to fix prices. Id.
In order for plaintiffs to succeed on their claims of vertical price-fixing, they must establish (1) that Rutledge pressured them into maintaining prices at a certain level, and (2) that this coercion actually impinged upon their freedom to set resale prices. Filco, 709 F.2d at 1266. The Court takes as true plaintiffs' allegations that they were coerced into signing the supply agreement for fear of losing their station. This, however, does not establish the first element of the test, that they have been coerced into setting a certain retail price for their gasoline. Indeed, they have admitted that Rutledge does not dictate their prices. There is no evidence that he even suggests retail prices to them.
Under the law of this circuit, actions of suppliers to influence resale prices are not illegal "unless they sufficiently induce avoidance of price competition." General Cinema Corp. v. Buena Vista Distribution, 681 F.2d 594, 597 (9th Cir.1982). Thus, claims of vertical price-fixing have been rejected where resale prices are not dictated. Id.; Westinghouse Electric, 523 F.2d at 675-76; 49er Chevrolet, 803 F.2d at 1468.
Courts also have refused to find vertical price-fixing where only wholesale prices are fixed by the supplier. For example, in Butera v. Sun Oil Co., Inc., 496 F.2d 434 (1st Cir.1974), cited with approval in Filco, the court rejected the plaintiff/retailer's price-fixing claims arising out of Sun Oil's wholesale price maintenance system, concluding:
[A] producer's tight control over its wholesale prices does not become resale price maintenance merely because retail outlets to which it sells, being highly competitive and selling at low margins, are sensitive to every change in wholesale prices.
....
The decision as to what margin to use[,] when to change it, and consequently what retail price to charge remains [the retailer's] and we agree that such economic impact as follows from Sun's tight control of its own wholesale pricing is not a Sherman Act violation.
Id. at 437-38. The Ninth Circuit similarly has held that section 1 is not violated where only wholesale prices are fixed and the plaintiffs are not bound to sell to customers at prices specified by the defendant. Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339 (9th Cir.1983), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93, see also American Telephone & Telegraph Co. v. Delta Communications Corp., 408 F.Supp. 1075 (S.D.Miss.1976), aff'd, 579 F.2d 972, partially vacated and remanded on reh'g, 590 F.2d 100 (5th Cir.1979); Fagan *1442 v. Sunbeam Lighting Co., 303 F.Supp. 356, 360-61 (S.D.Ill.1969).
Here, Rutledge controls the price of gasoline only by setting the price at which it is sold to the Taggarts. The fact that Taggarts' profit margin is not necessarily as high as it could be without the exclusive supply contract does not, in and of itself, give rise to an antitrust violation. See General Cinema Corp., 681 F.2d at 597-98. Absent resale price maintenance, there can be no per se violation of section 1.
The same conclusion must be reached with respect to plaintiffs' horizontal conspiracy claims. There is no evidence of an "agreement among competitors" to set prices. In the absence of such evidence, plaintiffs cannot establish a per se violation of section 1. 49er Chevrolet, 803 F.2d at 1467.
Having failed to find a per se violation, the Court must apply a "rule of reason" analysis. Dunn v. Phoenix Newspapers, Inc., 735 F.2d 1184, 1189 (9th Cir.1984).[10] Under the rule of reason, plaintiffs must show that the Supply Agreement actually has injured competition. O.S.C. Corp. v. Apple Computer, 792 F.2d at 1469. The Court must "consider whether the intent of the restraint is anticompetitive and whether the restraint has significant anticompetitive effects." Id. This involves a balancing of the competitive evils of the restraint against its competitive benefits. Gough v. Rossmoor, 585 F.2d at 388.
Plaintiffs argue that the supply agreement works to the exclusive benefit of Rutledge and has no competitive benefits whatsoever.
However, the fact that no competitive benefits are advanced in favor of a restraint ... does not automatically constitute it unreasonable under the Sherman Act.... [I]t must first be established to be a restraint on competition and this involves a consideration of the impact of the restraint on the competitive conditions within the field of commerce in which the plaintiff [is] engaged and upon those commercially engaged in competition within it.
Id. at 389.
Relevant market definition is critical to a rule of reason analysis. The record reflects that plaintiffs' expert, Dr. Dennis O'Donnell, did not conduct an independent study to determine the relevant geographic and product markets in which plaintiffs compete. Based upon a publication of the Bureau of Business and Economic Research of the University of Montana, he defined the relevant geographic market as the three-county area surrounding Bozeman. Assuming this to be a correct assessment of the relevant market, the Court is unable to find a shred of probative evidence in the record tending to support a claim of competitive injury to the market.
Plaintiffs assert that they have been damaged by the restrictive provisions of the supply agreement and by Rutledge's pricing practices thereunder. The law is clear, however, that "[i]njury to an antitrust plaintiff is not enough to prove injury to competition." O.S.C. Corp. v. Apple Computer, 792 F.2d at 1469; Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car System, Inc., 732 F.2d 1403, 1408 (9th Cir.1984). Plaintiffs claim that the inability of other suppliers to sell gasoline to them does constitute an injury to competition. They offer no evidence to show that the supply agreement has any effect on competition between suppliers for the business of Bozeman retailers, or on competition between the retailers themselves. Defendants, on the other hand, have presented deposition testimony indicating that the market is very competitive and that prices vary accordingly. Plaintiffs challenge these statements but offer no evidence to refute them.
Absent proof of retail price maintenance or actual restraint of competition, *1443 plaintiffs' price-fixing claims must fail as a matter of law.
E. Requirements Contract
Plaintiffs allege that the supply agreement constitutes an exclusive dealing arrangement which unreasonably restrains trade in violation of section 1 of the Sherman Act and of section 3 of the Clayton Act, 15 U.S.C. § 14.[11] The Clayton Act comes into play when the alleged "practical effect" of contract provisions is to prevent the use of goods of a competitor, thereby foreclosing competition in a substantial share of the line of commerce affected. L. Sullivan, Handbook of the Law of Antitrust § 151 at 433 (1977) (hereinafter cited as "Sullivan") (quoting Standard Oil Co. v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371 (1949)).
Purchasing restrictions imposed upon buyers by sellers which may give rise to antitrust violations usually take one of three forms:
1. Exclusive dealing arrangements, in which the seller agrees to sell on condition that the buyer agrees not to deal in competitive products;
2. Requirements contracts, which are essentially exclusive dealing agreements with the added provision that the buyer agrees to purchase all or a substantial part of his needs of a particular product or service from the seller; and
3. Tying arrangements.[12]
16A J. Von Kalinowski, Business Organizations § 6G.01[1] (hereinafter "Von Kalinowski").
The agreement between Rutledge and Taggarts represents a classic requirements contract, by which the Taggarts agree to purchase all of their needs of gasoline products from Rutledge unless Rutledge is unable to meet their demand. Generally, where a buyer is expressly or impliedly required to deal only with the seller for a specific product or service, an exclusive dealing agreement will be inferred, regardless of whether the buyer proposes the arrangement or is coerced into accepting it. Von Kalinowski, § 6G.02[1] at 6G-22. The only issue is whether this contract is unlawful under either section 1 of the Sherman Act or section 3 of the Clayton Act.
The Ninth Circuit recognizes that an exclusive dealing arrangement does not constitute a per se violation of the antitrust laws. Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1303-04 (9th Cir.), cert. denied, 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982) (Finley II) (relying on Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961)). Rather, a violation will be found only where the arrangement has the requisite anticompetitive effect upon a substantial share of the relevant market. Id. at 1304 n. 9.
Essentially the same tests are applied under section 1 and section 3. The primary distinction between the two sections lies in the types of transactions involved and in the degree of competitive injury required. See Von Kalinowski § 6G.03. Section 3 applies to a much narrower class of transactions or arrangements than those covered by the sweeping language of section 1. Sullivan § 151 at 432. The Clayton Act encompasses a broader range of injury, however, in that it proscribes all arrangements that "will probably lessen competition," whereas the Sherman Act applies only to actual restraints of trade. Von Kalinowski § 6G.03 at 6G-48. Thus, a greater showing of anticompetitive effect is required to establish a Sherman Act violation than to establish a section 3 Clayton Act violation in exclusive dealing cases. Twin City Sportservice v. Charles O. Finley & Co., 512 F.2d 1264, 1275 (9th Cir.1975) (Finley I). See Standard Oil Co. v. United States, 337 U.S. *1444 293, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949) (6.7 percent market foreclosure held sufficient under section 3). The broad proscription of section 3 evinces "an intent to arrest in its incipiency conduct which eventually might develop into a violation of section 1 or 2 of [the] Sherman [Act]." Sullivan § 151 at 432.
The Supreme Court has ruled that a section 3 violation requires that competition be foreclosed in a "substantial share of the line of commerce affected." Tampa Electric, 365 U.S. at 327, 81 S.Ct. at 628. To create a workable application of this test, the Court identified three factors for consideration:
First, the line of commerce, i.e., the type of goods, wares, or merchandise, etc., involved must be determined, where it is in controversy, on the basis of the facts peculiar to the case. [Footnote omitted.] Second, the area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies.
....
Third, and last, the competition foreclosed by the contract must be found to constitute a substantial share of the relevant market. That is to say, the opportunities for other traders to enter into or remain in that market must be significantly limited.
Id. at 327-28, 81 S.Ct. at 628.
In this case, the line of commerce affected, i.e., the relevant product market, appears to be gasoline. No party has come forth with evidence to indicate otherwise. The area of effective competition, although apparently not "charted by careful selection of the market area in which the seller operates," is assumed to be the tri-county Gallatin area.[13] The only disputed issue is whether the supply agreement forecloses competition in a substantial share of that market.
Courts have taken language from Tampa Electric to evolve two tests under which substantiality is determined. See generally Von Kalinowski § 6G.04[2]. The "quantitative substantiality" test looks only to the actual percentage of the relevant market which has been foreclosed to competition, and generally will be applied when a dominant seller uses exclusionary conditions as a general practice and the market share foreclosed is, in and of itself, substantial. The "qualitative substantiality" test, which requires consideration of a "broad range of economic factors," is used where the seller does not dominate the market and (a) the percentage of market foreclosure is not, in and of itself, substantial, or (b) the seller or buyer requires the challenged practices for the operation of his business. Id.
Rutledge is one of several "jobbers" who supplies gasoline in the Bozeman area. In response to Conoco's interrogatories, plaintiffs identified eleven jobbers as possible gasoline suppliers for Bozeman. Plaintiffs have not suggested that Rutledge is a dominant supplier who uses exclusive contracts as a general practice. On the contrary, the agreement between Rutledge and Taggarts is evidently the only requirements contract Rutledge has with any of the Conoco station operators in Bozeman. Additionally, the Court is unable to conclude from the record that the percentage of the relevant market foreclosed to competition by reason of this contract is, in and of itself, substantial. Therefore, the qualitative substantiality test seems more appropriate here to ascertain whether a substantial share of the market has in fact been foreclosed.
The qualitative substantiality test, as it has developed since Tampa Electric, suggests consideration of a number of factors:
(1) the extent to which competition is foreclosed in the relevant market;
(2) the dominance of the seller in his industry;
(3) the relative strengths of the parties;
(4) the ease with which new outlets can be developed;
*1445 (5) the sales structure of the industry;
(6) the extent to which competition has flourished despite the use of the exclusive contracts; and
(7) the duration for which the arrangements are to run.
Von Kalinowski § 6G.04[2] at 6G-73 to -75 (citing Tampa Electric).
Given the evidence in the record presented by the parties, and considering it in light of the above factors, the Court concludes that plaintiffs have raised no issue of material fact by which a jury could find that the supply agreement has foreclosed competition in a substantial share of the relevant market. The factors weighing in plaintiffs' favor include the relative strengths of the parties[14] and the duration for which the arrangements are to run.[15] These two considerations in and of themselves, however, are insufficient to satisfy the qualitative substantiality test. As the Supreme Court stated in Tampa Electric:
To determine substantiality in a given case, it is necessary to weigh the probable effect of the contract on the relevant area of effective competition, taking into account the relative strengths of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein.
Id., 365 U.S. at 329, 81 S.Ct. at 629.
Plaintiffs continue to emphasize the fact that, because of the exclusive supply agreement, other suppliers in the area are foreclosed from competing for plaintiffs' business, which constitutes a substantial dollar volume of gasoline each year. They conclude from this premise that the suppliers will be discouraged from entering the Bozeman market even to sell to other retailers. It is clear, however, that the dollar volume of the product involved is not the test of substantiality. Tampa Electric, 365 U.S. at 334, 81 S.Ct. at 631. Moreover, there is no evidence that the overall gasoline market in the Bozeman area has been affected by the Taggart-Rutledge supply agreement. Plaintiffs offer no proof of their fears that suppliers are fleeing the Gallatin Valley because there is no market. The court can draw reasonable inferences in plaintiffs' favor, "[b]ut antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case." Matsushita Electric Indus. Co., 106 S.Ct. at 1357.
There is no evidence of the proportionate volume of commerce involved in the subject contract in relation to the total volume of commerce in the relevant market area. There is no evidence that Rutledge is a dominant seller in the industry within the Gallatin area. There is no evidence that competition has not flourished despite the existence of the Taggart-Rutledge agreement. There is no evidence that new business is being foreclosed in the Bozeman market because of the defendants' actions in this case.
Even though a single contract between single traders may fall within the initial broad proscription of [section 3], it must also suffer the qualifying disability, tendency to work a substantial not remote lessening of competition in the relevant competitive market.
Tampa Electric, 365 U.S. at 333, 81 S.Ct. at 631. Plaintiffs have offered no significant probative evidence in support of their claim that performance of the contract in question will foreclose competition in a substantial share of the line of commerce affected.
F. Tying Arrangement
Plaintiffs allege that Rutledge illegally tied the sale of gasoline products to the sale of the Four Corners station in violation *1446 of section 1 of the Sherman Act and of section 3 of the Clayton Act.
A tying arrangement exists "when a seller, having a product which the buyers want (the `tying product') refuses to sell it alone and insists that any buyer who wants it must also purchase another product (the `tied product')." Sullivan § 150 at 431. Upon establishment of the requisite elements, tying arrangements may be per se unlawful under section 1 of the Sherman Act, section 3 of the Clayton Act, or both.
There are three primary elements for proof of an illegal tying arrangement:
(1) a tie-in between two distinct products or services;
(2) sufficient economic power in the tying product market to impose significant restrictions in the tied product market; and
(3) an effect on a not insubstantial volume of commerce in the tied product market.
Ariweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1189 (9th Cir.1984). Additionally, courts have imposed two "independent, but related" elements:
(1) the seller of the tying product must have an economic interest in the sale of the tied product; and
(2) there must be a showing of some extent of coercion.
Id. at 1189 n. 2. These elements are required under both section 1 and section 3. Id.
The "tying" product in this case is the Four Corners Conoco station, which plaintiffs clearly wanted to purchase and which was available only from Rutledge. The "tied" product is the gasoline, which plaintiffs assert they would not have purchased from Rutledge except to obtain the station.
Although the elements for proof of a tying violation are virtually the same under both section 1 and section 3, there are two significant differences between the two Acts. First, section 3 applies only if both the tying and tied items are "goods, wares, merchandise, machinery, supplies or other machinery." Therefore, it necessarily does not apply where the tying product involves real property. Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1214 (9th Cir.1977) (cemetery lots); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Second, the degree of proof required to show the requisite effect on commerce varies.
Under a § 3 theory, the plaintiff must establish that the effect of a tie-in "may be to substantially lessen competition." This standard is met either if the seller enjoys sufficient economic power in the tying product market to appreciably restrain competition in the tied product market or if a not insubstantial volume of commerce is restrained. The § 1 standard requires that both conditions be met.
Moore, 550 F.2d at 1214 (citations omitted).
Because the tying product in this case is essentially a land transaction, the arrangement must be analyzed under section 1. The preliminary elements are easily satisfied here. Construing the facts in plaintiffs' favor, a jury reasonably could find that the supply agreement for the sale of gasoline was tied to the sale of the station and that plaintiffs could not purchase the station without also purchasing the gasoline. Similarly, there is sufficient probative evidence to satisfy the element of coercion,[16] and there can be no question that Rutledge had an economic interest in the sale of the tied product, gasoline. The difficult elements are whether Rutledge enjoyed sufficient economic power in the tying product market to appreciably restrain competition in the tied product market and whether a "not insubstantial" volume of commerce has been restrained.
To establish the sufficient economic power requirement, plaintiffs are not required to prove a monopoly position or dominance in the market; generally, the test is whether the seller has sufficient power to raise prices or impose onerous terms that could not be exacted in a completely competitive *1447 market. Moore, 550 F.2d at 1215. "In short, the question is whether the seller has some advantage not shared by his competitors in the market for the tying product." Id. (quoting United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 620, 97 S.Ct. 861, 867, 51 L.Ed.2d 80 (1977) (Fortner II)).
Market power also may be shown by the uniqueness or desirability of the product. Northern Pacific Ry. Co., 356 U.S. at 7-8, 78 S.Ct. at 519 (tying product unique piece of land); United States v. Loew's, Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962) ("absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes."); Lessig v. Tidewater Oil Co., 327 F.2d 459, 569-70 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964) (service station lease). In Fortner II, the Supreme Court clarified what constitutes appreciable economic power in the market for the tying product, and held that such power may be inferred from the uniqueness of the product "only when the seller has some cost advantage over its competitors or when its competitors, because of some barrier, cannot offer the same distinctive product as the seller even if they desired to do so." Von Kalinowski § 6G.05[2] at 6G-90. The Court identified three such barriers:
legal, as in the case of patented and copyrighted products ..., or physical, as when the product is land, ... [or] economic, as when competitors are simply unable to produce the distinctive product profitably...."
Fortner II, 429 U.S. at 621, 97 S.Ct. at 868 (quoting United States Steel Corp. v. Fortner Enterprises, Inc., 394 U.S. 495, 505 n. 2, 89 S.Ct. 1252, 1259 n. 2, 22 L.Ed.2d 495 (1969) (Fortner I)).
Here, the tying product being a service station located on a desirable piece of land in the heart of Montana's Gallatin Valley, it is reasonable to conclude that the product is sufficiently unique to permit an inference of the requisite economic power therefrom.
The remaining question is whether the arrangement affects a not insubstantial volume of commerce in the tied product market.[17] Unlike other measures of antitrust violations, the "not insubstantial volume" element does not require reference to the size or scope of any relevant market foreclosed by the tie.
Rather, the controlling consideration is "whether a total amount of business, substantial enough in terms of dollar volume so as not to be merely de minimis, is foreclosed to competitors." ... The relevant figure is the total volume of sales tied and not the portion of sales allocable to the plaintiff.
Moore, 550 F.2d at 1216 (quoting Fortner I, 394 U.S. at 501, 89 S.Ct. at 1257). This dollar volume test has presented a troublesome model for courts to follow and naturally has been subject to a number of interpretations. Fortner I indicated that courts must look to the totality of the defendant's sales of the tied product sold by means of the challenged practice, including but not limited to the portion of such total accounted for by sales to the particular plaintiff who brings suit. Id., 394 U.S. at 502, 89 S.Ct. at 1258.
The evidence in this case shows that plaintiffs purchase a substantial number of gallons of gasoline per year. The damage estimate originally calculated by plaintiffs' expert was based upon their purchase from Rutledge of 2,632,104 gallons of gasoline between October 12, 1978, and December 31, 1984. This would show an average purchase in the neighborhood of 440,000 gallons annually. A reasonable argument could be made that the dollar volume represented by plaintiffs' yearly requirements is "not insubstantial" within the meaning of the Fortner I test.
Recently, the Supreme Court has further amplified the meaning of a "not insubstantial volume of commerce." Discussing *1448 the per se illegality of tying arrangements, the Court held:
application of the per se rule focuses on the probability of anticompetitive consequences. Of course, as a threshold matter there must be a substantial potential for impact on competition in order to justify per se condemnation. If only a single purchaser were "forced" with respect to the purchase of a tied item, the resultant impact on competition would not be sufficient to warrant the concern of the antitrust law. It is for this reason that we have refused to condemn tying arrangements unless a substantial volume of commerce is foreclosed thereby.
Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 16, 104 S.Ct. 1551, 1560, 80 L.Ed.2d 2 (1984) (emphasis added). It is clear from the quoted language that even though plaintiffs' purchase of gasoline may involve as much as a few hundred thousand dollars per year, because they are but a single purchaser, the tying arrangement as a matter of law cannot be held to be a per se violation of section 1.
III. Pendent Claims
The Court having determined that plaintiffs have raised no issue of material fact by which a jury might conclude that they are entitled to judgment on their federal antitrust claims, and that defendants are entitled to judgment as a matter of law, the only remaining claims in the complaint are Counts II and III, each of which arises only under state law. The remaining claims being asserted against all defendants, there is no independent basis for jurisdiction based upon diversity of citizenship between the parties.
Once a plaintiff's federal claims have been dismissed, exercise of pendent jurisdiction over purely state claims is within the court's discretion. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1362 (9th Cir.1985) (en banc). The Supreme Court has indicated a preference for dismissal of remaining state claims on the ground that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of state law." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
Under Montana law, parties have one year from the date of dismissal of a federal action for want of jurisdiction within which to bring suit in state court. See Mont. Code Ann. § 27-2-407 (1985); Cassidy v. Finley, 173 Mont. 475, 568 P.2d 142, 144 (1977). See also McCracken v. City of Chinook, et al., 652 F.Supp. 1300 (D.Mont. 1987). Thus, plaintiffs will not be prejudiced by dismissal of the state claims.
ORDER
Based upon the foregoing opinion,
IT IS HEREBY ORDERED:
1. Plaintiffs' motion for summary judgment is DENIED.
2. The motion for summary judgment on behalf of defendants David S. Rutledge, Janette G. Rutledge, and David Rutledge Distributing Company, Inc., as to Counts IV and V of the amended complaint is GRANTED on the ground that such claims are barred by the doctrine of claim preclusion.
3. The motions of all defendants for summary judgment as to Count I of the amended complaint (all federal antitrust claims) are GRANTED.
4. Counts II and III of the amended complaint are DISMISSED without prejudice for want of jurisdiction.
Judgment shall enter accordingly, all parties to bear their own costs.
NOTES
[1] The facts are drawn from the complaint, from Conoco's Statement of Material Facts, from plaintiffs' Statement of Material Facts, and from copies of the court file in Case No. 26818, in the District Court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin, of which the Court takes judicial notice. Fed.R.Evid. 201. Where disputed, the facts are construed in plaintiffs' favor. See T.W. Electrical Service, Inc., et al. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-31 (9th Cir.1987).
[2] Article IV, Sec. 1, provides in pertinent part:
Full faith and credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.
[3] 28 U.S.C. § 1738 provides in pertinent part:
[The] Acts, records and judicial proceedings [of the legislature or any court of any State, Territory, or Possession of the United States] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
[4] Plaintiffs claim that they never even filed a responsive pleading in the state action. The record indicates, however, that an answer was filed December 22, 1980, consisting of a general denial of the allegations contained in the complaint.
[5] Indeed, the only evidence of a "conspiracy" is the agreement between Rutledge and Taggarts that Rutledge alone would submit a bid. See 16A J. Von Kalinowski, Business Organizations § 6A.02[3] at 6A-21 (discussing collusive bidding practices as unlawful price fixing under sections 1 and 3 of the Sherman Act).
[6] Section 2 makes it unlawful to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations. ..."
[7] Fed.R.Civ.P. 56(f) allows the Court to order a continuance to permit further discovery or submission of additional affidavits if the nonmoving party cannot present facts "essential to justify his opposition." Plaintiffs, however, have not suggested that they have had inadequate opportunity for discovery, and indeed, the discovery generated in this case is voluminous. Rule 56(f) will not assist a party where a full and fair opportunity for discovery has been provided, as here. See Pfeil v. Rogers, 757 F.2d 850 (7th Cir.1985); Creusot-Loire International, Inc. v. Coppus Engineering Corp., 585 F.Supp. 45 (S.D. N.Y.1983).
[8] 15 U.S.C. § 13(a) provides in pertinent part:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States ..., and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them....
[9] Although the court in Zoslaw indicated that this "threshold" issue would normally be a jury question, summary judgment is appropriate where plaintiffs have not presented an adequate record to support a finding in their favor. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1477 (9th Cir.1986), reh'g denied, 810 F.2d 1517 (9th Cir.1987).
[10] The "rule of reason" is also applied in analyzing restrictions imposed in the context of "dual distributorships." Dimidowich v. Bell & Howell, 803 F.2d at 1481. This concept refers to a situation where, as here, the defendant "operates at two distinct levels of the distribution chain in the same market by acting as both a supplier and a distributor of [the] product." Id. at 1480; Krehl v. Baskin Robbins Ice Cream Co., 664 F.2d 1348, 1350-51 (9th Cir.1982).
[11] Section 3 of the Clayton Act makes it unlawful for any person, in the course of interstate or foreign commerce, to lease or sell any commodity, or to contract to do so, "on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the ... commodities of a competitor or competitors of the lessor or seller, where the effect ... may be to substantially lessen competition or tend to create a monopoly in any line of commerce." 15 U.S.C. § 14.
[12] Tying arrangements are defined and discussed infra, pp. 1445-48.
[13] The Court makes no finding as to whether this represents the appropriate geographic market, but merely draws this inference in plaintiffs' favor from the evidence submitted.
[14] Although defendants maintain that the supply agreement was a fully negotiated armslength transaction desired by plaintiffs to guarantee a supply of gasoline, the Court assumes as true, for purposes of this ruling, plaintiffs' contention that they were compelled to execute the agreement or risk losing their station.
[15] The potential 15-year term involved in the contract, although not inordinately long, carries a sufficient suggestion of restraint to resolve this factor in plaintiffs' favor.
[16] See Moore, 550 F.2d at 1217 (coercion occurs when the buyer must accept the tied item and forego possibly desirable substitutes).
[17] Because this arrangement is being tested under section 1 of the Sherman Act, the strict "in commerce" requirements of the Robinson-Patman Act discussed supra do not apply. For the purposes of this ruling, the Court takes as true plaintiffs' contention that the "affecting commerce" standard of section 1 is satisfied by the evidence presented herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265530/ | 657 F.Supp. 1260 (1987)
Mario R. LIBERTA, Petitioner,
v.
Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent.
No. CIV-85-830C.
United States District Court, W.D. New York.
April 21, 1987.
*1261 State University of New York at Buffalo, Faculty of Law and Jurisprudence (R. Nils Olsen, of counsel), Buffalo, N.Y., for petitioner.
Richard J. Arcara, Dist. Atty. of Erie County (John J. DeFranks, Jo W. Faber, Asst. Dist. Attys., of counsel), Buffalo, N.Y., for respondent.
Elizabeth Holtzman, Dist. Atty. of Kings County (Peter A. Weinstein, First Deputy Bureau Chief, Appeals Bureau, of counsel), Brooklyn, N.Y., amicus curiae.
CURTIN, Chief Judge.
The petitioner was convicted of forcible sodomy and rape of his estranged wife, Denise Liberta, in the presence of their two-year-old son while they were living apart under a "Temporary Order of Protection."[1] On appeal, this conviction was affirmed by both the Appellate Division, Fourth Department, People v. Liberta, 100 A.D.2d 741, 473 N.Y.S.2d 636 (4th Dept. 1984), and the New York Court of Appeals, People v. Liberta, 64 N.Y.2d 152, 485 N.Y. S.2d 207, 474 N.E.2d 567 (1984).
In its opinion, the New York Court of Appeals determined that a marital exemption under the rape and sodomy laws constitutes an unconstitutional violation of the Equal Protection Clauses of the United States Constitution. It therefore struck the exemption from sections 130.35 and 130.50 of the New York Penal Law. The court further held that section 130.35 of the Penal Law violated equal protection because it exempted females from criminal liability for forcible rape, and as a result, the gender exemption was also struck from that section of the statute. Notwithstanding the above, the New York Court of Appeals affirmed the petitioner's conviction based on the reasoning that petitioner was not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the court's decision. See supra, footnote 1.
Following this decision, petitioner applied for a writ of certiorari to the United States Supreme Court, which was ultimately denied. Liberta v. New York, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310 (1985). Petitioner then filed an application for a writ of habeas corpus with this court (Item 1).
Petitioner's current petition makes essentially three claims. He says that 1) the forcible rape and sodomy statutes, as written and under which he was indicted and convicted, violate equal protection; 2) the New York Court of Appeals applied two new judicially created statutes against petitioner ex post facto when it affirmed his conviction and, therefore, violated his due process and equal protection rights; and 3) the prosecutor did not prove its case beyond a reasonable doubt at trial and, therefore, denied petitioner due process. Each of these arguments will be addressed separately below.
The Equal Protection Issue
In challenging the constitutionality of his conviction, petitioner asserts that the statutes as written were unconstitutional and violated his right to equal protection. I disagree and find that the statute, as it was applied to petitioner, was not unconstitutional *1262 and did not violate his equal protection rights. Those portions of the statutes that were determined by the New York Court of Appeals to be unconstitutional and consequently were stricken did not affect this petitioner in any way. Because the court determined that the applicable statutes were unconstitutionally underinclusive, it eliminated the marital and sex-based exemptions and retained the remaining constitutional portions. In declining the grant of certiorari, the Supreme Court impliedly recognized the right of the state court to enlarge the class of persons subject to criminal penalty as a remedy of a statute's unconstitutional underinclusiveness. It is clear that the petitioner himself was not directly affected by this expansion and, therefore, it cannot now be said that his rights were violated as a result. The New York Court of Appeals affirmed the petitioner's conviction below based upon this reasoning. People v. Liberta, 64 N.Y.2d at 171-73, 485 N.Y.S.2d at 218-20, 474 N.E.2d at 578-79.
The Ex Post Facto Issue
This issue is closely related to petitioner's first claim. I find that it cannot be said that there was an ex post facto application of law to petitioner below because the acts committed by him were not criminalized for the first time by the New York Court of Appeals' 1984 decision but were proscribed when he committed them and remained criminal thereafter. As such, I find that petitioner had fair notice at the time of his conduct that it was criminal and, therefore, find that he suffered no violation of his due process rights. Further, I find that plaintiff's equal protection rights were not violated because, as was stated above, he was not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the Court of Appeals' decision.
Proof of Conviction Issue
Finally, petitioner argues that proof of forcible compulsion, as well as evidence supporting a finding that he and the victim were living apart was inadequate for a conviction.
I find the testimony presented at trial was ample to prove forcible compulsion. At the time of petitioner's arrest, "forcible compulsion" was statutorily defined, under section 130.00(8) of the New York Penal Law, as follows:
"Forcible compulsion" means physical force or a threat ... which ... places a person in fear of immediate death or serious physical injury to himself, herself or another person ....
Denise Liberta testified at trial that the petitioner threatened at least twice during his attack to kill her and/or their young son. I also find that the jury could reasonably conclude, based upon the testimony of petitioner himself, that he was capable of causing physical injury to Denise Liberta and their son, and that Denise Liberta could have been placed in fear of such injury by the actions of petitioner on the day in question. Item 17, pp. 28-30.
With respect to the finding of the jury that the petitioner and his wife were living apart "pursuant to a valid and effective" order of protection, the record indicates that petitioner not only admitted that he was not living with his wife at the time of the crime, but that he also stated that his leaving the house was related to the court order. Moreover, this court notes that section 130.00(4)(b)(i) of the New York Penal Law is written in the disjunctive, requiring that the order at issue necessitate living apart either by its terms or its effect. As such, I believe the statutory element is clearly satisfied by the language of the order itself, which explicitly requires the petitioner to stay away from "the house, the other spouse or the child" on the day of the events at issue. Id. at 30-32.
In light of the foregoing, I find that evidence of both forcible compulsion and the effect of the court order was sufficient to sustain petitioner's conviction below.
In summary, the present petition for a writ of habeas corpus is denied in all respects. The certificate of probable cause is granted. If petitioner wishes to file a notice of appeal, he must do so within 30 days *1263 of the entry of the judgment by filing such notice with the Clerk of the United States District Court, United States Court House, Buffalo, New York 14202. The $5.00 filing fee is waived.
Permission to appeal in forma pauperis is denied. Further requests for permission to appeal in forma pauperis should be directed, on motion, to the United States Court of Appeals for the Second Circuit, United States Court House, Foley Square, New York, New York 10007, in accordance with Rule 24(a) of the Federal Rules of Appellate Procedure.
So ordered.
NOTES
[1] In a decision entitled People v. Liberta, 90 A.D.2d 681, 455 N.Y.S.2d 882 (4th Dept.1982), the New York State Appellate Division, Fourth Department, said that because of this "Temporary Order of Protection," petitioner and his estranged wife were "not married" for purposes of the criminal statutes at the time of the acts involved here. See section 130.00, subd. 4(b)(i)-(iii) as amended in 1978). As a result, it was found that petitioner did not come within the ambit of the so-called "marital exemption" of section 130.00, subd. 4. Accord, People v. Liberta, 64 N.Y.2d at 161, 485 N.Y.S.2d at 211, 474 N.E.2d at 571. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265532/ | 657 F.Supp. 1257 (1987)
DESIGNS BY GLORY, LTD., Plaintiff,
v.
MANHATTAN CREATIVE JEWELERS, INC., Rekha Samtani, Sunil Samtani, and Luvi Samtani, Defendants.
No. 87 Civ. 676 (EW).
United States District Court, S.D. New York.
April 17, 1987.
Weg & Myers, P.C., New York City, for Designs by Glory, Ltd.; Ira M. Myers, of counsel.
*1258 Lubell & Koven, New York City, for Manhattan Creative Jewelers, Inc., Rekha Samtani, Sunil Samtani and Luvi Samtani; Irving Hamada, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
Defendant Manhattan Creative Jewelers, Inc. ("Manhattan"), et al., a Texas corporation with its principal place of business in Laredo, Texas, moves for an order pursuant to 28 U.S.C. § 1404(a) transferring this action to the United States District Court for the Southern District of Texas, Laredo Division, where a previously filed action is pending between the parties.
Seven weeks after the commencement of the foregoing Texas action, originally filed in Texas State Court and removed by Designs By Glory, Ltd. ("Designs"), a New York corporation with its principal place of business in New York City, under diversity jurisdiction to the United States District Court for the Southern District of Texas, Laredo Division, Designs instituted the instant action in this Court. By this action, Designs seeks to recover over $125,000.00 for gold jewelry it sold to Manhattan, the jewelry being the subject of Manhattan's claims against Design in the Texas suit. Designs also charges that Sunil Samtani, one of Manhattan's principals, libeled Designs by statements to an alleged customer that Designs sells inferior grades of gold and engages in fraudulent sales practices by short-weighing and short-karating its gold.
In the Texas action, Manhattan charges Designs with breach of express and implied warranty on the grounds that Designs represented the gold it sold to Manhattan as 14 karat gold, when in fact it was an inferior grade of gold. Manhattan seeks damages in excess of $1,000,000 flowing from the alleged breach, as well as the return of promissory notes issued in connection with the transaction.
In support of its motion to transfer, Manhattan asserts that: 1) its "first-filed" action now pending in that Court arises out of the same facts and raises similar issues as in the instant action and should therefore take precedence over the instant action; 2) it expects to call as witnesses five customers, representatives of Texas jewelry businesses, who will testify as to the inferior quality of the gold and the loss of goodwill suffered by Manhattan; and 3) this cause of action arose in Texas, where Manhattan took delivery of the goods, and that Texas law thus applies to its adjudication.
Designs, in resisting the motion, asserts that this cause of action arose in New York, where a representative of defendant would travel to enter into contracts with Designs; it also asserts that none of its agents telephoned or traveled to Texas in connection with any business it had with Manhattan. Designs does not dispute that the injury allegedly sustained by Manhattan occurred in Texas.
Discussion
28 U.S.C. § 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
It is clear that this action, brought against a Texas domiciliary by a New York corporation with an amount in controversy over $10,000, could have been brought in the Southern District of Texas in the first instance. While the burden is on the moving party to establish that there should be a change of forum and the plaintiff's choice of forum is entitled to some consideration,[1] the Court is required to analyze the factors that traditionally come into play on a motion to transfer. These factors include: 1) the convenience of parties; 2) the convenience of witnesses; 3) the relative ease of access to sources of proof; 4) the availability of process to compel attendance of unwilling *1259 witnesses; 5) the cost of obtaining willing witnesses; 6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and 7) the interests of justice.[2] Each of these factors will be discussed separately.
1. Convenience of the Parties
No matter where this action is to be heard, should it proceed to trial, either the plaintiff or the defendant will be inconvenienced by having to travel a substantial distance. Because Manhattan has not made a clear-cut showing[3] that it will be more inconvenienced by having to come to New York to defend this action than Designs would be in going to Texas to prosecute it, Manhattan has not met its burden that the convenience to the parties favors a transfer of this case.
2. Convenience of Witnesses; Availability of Process
Manhattan has, however, made a substantial showing that the convenience to witnesses favors a transfer to the Southern District of Texas. Manhattan has listed five non-party witnesses, all Texas residents selling gold at the retail level, who are expected to testify as to the inferior quality of gold they purchased from Manhattan. None of these witnesses are within the subpoena power of this Court, and it would be unnecessarily expensive to have them come to New York to testify were they willing. Moreover, Designs has not listed a single non-party witness it expects to call, let alone a witness who would be inconvenienced by traveling to Texas.[4]
3. Access to Sources of Proof
Apart from the testimony of live witnesses, much of the proof in this case appears to consist of invoices, receipts, promissory notes, checks, and other documentary evidence, all of which is easily discoverable. Manhattan's proof concerning the quality of the gold it purchased will also consist of testimony from the above-mentioned Texas witnesses. Manhattan therefore has met its burden that sources of proof will be more accessible if the matter is transferred to Texas.
4. Where the Case Will Be Tried More Expeditiously
The parties' dispute as to where this cause of action arose and which state's law should apply is irrelevant. The bulk of this case is governed by Article 2 of the Uniform Commercial Code,[5] which has been adopted in both New York and Texas. Were this case to be transferred, it is probable that it would be consolidated with the pending Texas action. The Texas Court has already set a discovery deadline for the related litigation, which seems to be proceeding at a quicker pace than the instant litigation.[6] Moreover, it is significant that *1260 in removing the action to Texas federal court, Designs failed to interpose a counterclaim based on its claims in this action and waited seven weeks before commencing this action.
Having considered all the relevant factors, including the conservation of judicial resources, the Court holds that the interests of justice require that this action be transferred to the Southern District of Texas. There is no good reason to require five witnesses (who will most likely testify for Manhattan in the first-filed action in Texas) to travel to New York, or to require Manhattan to prove much of its case via deposition testimony should the witnesses be unwilling to travel to New York, when a more desirable and convenient forum for this litigation exists in the Southern District of Texas.
Conclusion
Defendants' motion to have this case transferred to the United States District Court for the Southern District of Texas is granted.
So ordered.
NOTES
[1] Factors Etc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979).
[2] Schneider v. Sears, 265 F.Supp. 257, 263 (S.D. N.Y.1967). See also Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 (1964).
[3] See Vincent v. Davis-Grabowski, Inc., 628 F.Supp. 430, 433 (S.D.N.Y.1985).
[4] Although Designs states a cause of action for a libelous statement made to a Mr. Berger who apparently is from New York, Designs has not stated that it expects to call him to the witness stand. In any event, the inconvenience he may suffer in going to Texas to testify is outweighed by the reciprocal inconvenience faced by Manhattan's five Texas witnesses.
[5] As stated earlier, although Designs asserts that it also has a claim for libel which arose in New York, Designs does not include the person who heard the allegedly libelous statement in its list of witnesses.
[6] In this connection, the Court rejects Manhattan's argument that the existence of a related litigation filed prior to the filing of this litigation compels a transfer to the Southern District of Texas. Although there is a "general policy that where two actions embrace the same issues, as a matter of sound judicial administration, the first action should have priority absent special circumstances supporting a different result," National Patent Development Corp. v. American Hospital Supply, 616 F.Supp. 114, 117 (S.D.N.Y. 1984); see also Meeropol v. Nizer, 505 F.2d 232, 235 (2d Cir.1974); William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 423 (2d Cir.1965), petition for certiorari dismissed, 384 U.S. 948, 86 S.Ct. 1475, 16 L.Ed.2d 546 (1966); Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir.1951), the "first-filed" rule should not be applied to the exclusion of other considerations. Hammet v. Warner Bros. Pictures, Inc., 176 F.2d 145, 150 (2d Cir.1949); National Patent, 616 F.Supp. at 118. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265534/ | 163 Cal.App.4th 590 (2008)
U.S. WESTERN FALUN DAFA ASSOCIATION, Plaintiff and Appellant,
v.
CHINESE CHAMBER OF COMMERCE, Defendant and Appellant.
Nos. A115535, A116307.
Court of Appeals of California, First District, Division Five.
May 30, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*593 Holme Roberts & Owen, Roger Myers, Katherine Keating, Isela Castaneda; Breall & Breall and Joseph H. Breall for Plaintiff and Appellant.
Renne Sloan Holtzman Sakai, Randy Riddle, K. Scott Dickey and Steve Cikes for Defendant and Appellant.
OPINION
SIMONS, J.
For more than 50 years the San Francisco Chinese Chamber of Commerce (the Chamber)[1] has sponsored a series of events to commemorate the Chinese New Year. A "Chinese New Year Parade" (Parade), a "Community Street Fair" (Street Fair), and a "Flower Market Fair" (Flower Fair), are among the activities conducted by the Chamber to educate the public on the subjects of Chinese culture and history. Each is open to the public to attend. U.S. Western Falun Dafa Association (Falun Gong) has applied multiple times to participate in one or more of these events, usually without success. Falun Gong sued the Chamber alleging it violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (Act) by denying Falun Gong's applications to participate. Falun Gong appeals from the trial court's order granting the Chamber's motion to strike the Act claim pursuant to Code of Civil Procedure section 425.16 (A115535).[2] Falun Gong contends that the trial court erred because Falun Gong's allegations were not based on conduct in furtherance of the Chamber's right to free speech, and because Falun Gong has established a probability of prevailing on its claim. We disagree. Each of the Chamber's events is expressive, and the First Amendment bars the government from compelling the Chamber to include in the presentation of its message the very different message communicated by Falun Gong.
In the unpublished portion of this opinion, we address an appeal by the Chamber from the trial court's order granting its motion for attorney fees (A116307), contending the trial court erred in reducing its requested attorney fees by two-thirds. We agree with the Chamber's contentions and reverse the order granting attorney fees and costs.
*594 BACKGROUND
The Complaint
Falun Gong's first amended complaint, filed in February 2006, alleges in part as follows: Falun Gong is a group of "practitioners of a Chinese self-cultivation practice group that originated in China and is practiced throughout the world." The Parade is an annual event organized by the Chamber, and the Street Fair is "part of the festivities for Chinese New Year that occurs immediately prior to the Parade."
In the lunar years corresponding to 2000 through 2003, the Chamber denied Falun Gong's applications to participate in the Parade and Street Fair. In 2004, the Chamber allowed Falun Gong to participate in the Parade, but not the Street Fair. Falun Gong was informed it had been excluded from the Street Fair because it opposed the policies of the Chinese government. In 2005, the Chamber again rejected Falun Gong's application to participate in the Parade. Then, "[a]t the last minute," the Chamber allowed Falun Gong to participate as the last entry in the Parade; however, the Chamber stopped Falun Gong before it entered Chinatown so that the Chinese government officials in attendance could exit the review stand.
In 2006, Falun Gong again applied to participate in the Parade. The Chamber denied Falun Gong's application, stating that the Parade could not accommodate everyone who wanted to participate. The Chamber also denied Falun Gong's application to operate a booth at the Street Fair. A letter from the Chamber's Street Fair director, Arnold Chin, stated that "I personally told you that your group(s) would be denied participation because of the political posture and position of the Falun Gong's views. This policy is in conformity with the Parade Committee decision to reject your request for participation."
The foregoing allegations are incorporated by reference in each of the complaint's three causes of action.[3] The second cause of action, brought by *595 Falun Gong against the Chamber, is the subject of this appeal and contains the Act claim. It alleges in relevant part: "[Falun Gong] continually attempted to apply for the services provided by [the Chamber] to all members of the San Francisco Community in general and the Chinese Community in particular. This includes but is not limited [to] all street fairs, cultural events, and other community activities sponsored and promoted by [the Chamber]. [¶] . . . [The Chamber] has and continues to discriminate against [Falun Gong] by denying it access to all events sponsored by [the Chamber] due to [Falun Gong's] beliefs. In addition, [the Chamber] openly supports the Chinese Government's persecution of [Falun Gong], which has led to both persecution and violence in the United States. [¶] . . . [The Chamber's] wrongful conduct is continuing in that [the Chamber] continues to deny [Falun Gong's] practitioners the full and equal accommodations, advantages, facilities, and services of the [Chamber], including but not limited to participation in Chinese New Year festivities, and all cultural and civil activities afforded to other groups." Falun Gong seeks damages and an injunction against the Chamber.
The Anti-SLAPP Motion
In April 2006, the Chamber filed an anti-SLAPP motion as to the first amended complaint. In support of its motion, the Chamber submitted two declarations from Wayne Hu (Hu), a member of the Chamber and the director of the Parade. Hu declared that since 1958, the Chamber has organized and produced the San Francisco Chinese New Year Festival. The festival "includes a string of intimately connected and intertwined events designed by the Chamber to educate the public on the subjects of Chinese culture and history and to encourage participation in the New Year celebration." These events include the Parade, the Street Fair, and the Flower Fair, and are free and open to the public.
Hu declared that the Parade is a procession of over 100 groups including school marching bands, stilt walkers, martial arts groups, lion dancers, and Chinese acrobats. It has been televised since 1987, and attracts over three million spectators and television viewers. Participants proceed along the parade route into Chinatown and the Street Fair.
Hu further declared that the Street Fair is a two-day event held in Chinatown during the weekend of the Parade. The Street Fair has hundreds of exhibitors, including exhibitors promoting Chinese culture and history. The Street Fair's center stage hosts cultural performances such as lion dancing, *596 folk dancing, exhibitions of Chinese music, puppet shows, and martial arts displays. The Street Fair also has a children's area where children can learn how to perform lion dances, and learn about Chinese toys, games, and calligraphy. It attracts between 250,000 and 400,000 attendees each year. The Flower Fair is the Festival's first event, held the weekend before the lunar New Year. The Flower Fair begins with a miniparade with lion dancers and fireworks. Participants operate booths selling fresh flowers, fruit, candy, and other supplies for the New Year.
Hu stated that participation in the Parade, Street Fair, and Flower Fair is by invitation only. To participate in the Parade or to operate a booth at the Street Fair or Flower Fair, applicants must submit an application to the Chamber. In selecting participants for the Parade, the Chamber considers how the applicant will contribute to expressing themes related to Chinese New Year, and how the applicant will visually enhance the parade's appearance for spectators and the television audience. In choosing participants for the Street and Flower Fairs, the Chamber gives preference to businesses and community service organizations operating within Chinatown. The Chamber does not accept applications from groups who seek to promote a particular political message, even if that political message is related to the interests of the Chinese community. Since 1971, it has been the Chamber's practice to prevent participation in the Festival by groups who intend to use it as a platform to express political beliefs. Hu further stated that this restriction "is necessary to prevent political groups from obscuring the Festival's message-the promotion of education of and participation in Chinese Culturein controversy."
In opposition to the Chamber's motion, Falun Gong filed declarations from Huy Lu (Lu) and Chuk. Lu stated that he was a member of Falun Gong and had submitted applications to the Chamber to operate a booth at the 2004 and 2006 Street Fairs and the 2004 Flower Fair, and each had been rejected. Lu declared that "the street fairs are separate from the . . . Parade both as an event and as an application process, even though . . . Hu attempts to link the street fairs and parade together."
Chuk stated that she also was a member of Falun Gong, and also submitted an application for the 2006 Street Fair, which the Chamber rejected. She further declared that "the decision of who will be granted a booth in the street fairs is not public knowledge and generates little to no interest outside of the applicants that seek rental of a booth. The street fair itself has no television or radio coverage and is no different th[a]n the myriad of street fairs held through[out] San Francisco during any given year."
*597 The Chamber filed objections to the evidence offered in support of Falun Gong's opposition to the anti-SLAPP motion, along with a request for a ruling on their objections. Falun Gong also submitted objections to the evidence submitted in support of the Chamber's reply and a request for a ruling on those objections. The court did not rule on either set of objections.
In May 2006, the court held a hearing on the Chamber's anti-SLAPP motion. In July, the court issued a written order granting the Chamber's motion to strike the second cause of action. The court stated that Falun Gong lacked representative standing to assert an Act claim because it had not sufficiently alleged harm to its members in the first amended complaint. The court further stated that the Chamber's decision to exclude Falun Gong was protected under the First Amendment because the Street Fair was an expressive event and mandating Falun Gong's inclusion would interfere with the Chamber's ability to communicate its own message. Falun Gong filed a timely notice of appeal from the court's order striking the second cause of action.
The Motion for Attorney Fees and Costs
In September 2006, the Chamber filed a motion for attorney fees and costs pursuant to section 425.16, subdivision (c). The Chamber sought a base lodestar amount of $85,674 for time spent on the anti-SLAPP motion and the fee petition, and requested a lodestar multiplier of 1.75. Thus, the Chamber sought a total of $149,929.50 in attorney fees, and an additional $517.32 in costs. Falun Gong opposed the motion, arguing that the time spent by the Chamber's attorneys was unreasonable and duplicative, a multiplier was inappropriate, and the total fees should be reduced because the Chamber had achieved only partial success. The Chamber filed a reply, requesting an additional base lodestar amount of $10,266 in fees for time spent on the reply memorandum and the hearing on the fee motion. Thus, the total amount of attorney fees and costs sought by the Chamber was $168,412.32.
On November 8, 2006, the court heard argument on the fee motion. On November 17, it issued a written order granting the Chamber's motion for attorney fees in the amount of $28,558. The order stated that no lodestar multiplier had been applied and "[t]he attorneys fees requested are reduced to one-third, because two of three causes of action were denied because of no standing." The Chamber filed a timely notice of appeal from the court's order granting attorney fees and costs.
The two appeals were consolidated.
*598 DISCUSSION
I. Falun Gong's Appeal from the Court's Dismissal of the Second Cause of Action
A. Anti-SLAPP Statute
Under section 425.16, subdivision (b)(1), "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
(1) "Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon).) First, the court determines whether the moving defendant has made a threshold showing that the challenged causes of action arise from protected activity, that is, activity by defendants in furtherance of their constitutional right of petition or free speech. (Id. at p. 67.) These protected acts include (1) written or oral statements made before a legislative, executive, or judicial proceeding; (2) written or oral statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e).)
Second, if the court finds that the defendant has met its initial burden, it then determines whether the plaintiff has demonstrated a probability of prevailing on its claim. (Equilon, supra, 29 Cal.4th at p. 67.) To satisfy this prong, "the plaintiff `must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should *599 grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. [Citation.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733].) We review the trial court's ruling de novo. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103 [15 Cal.Rptr.3d 215] (Mann I).)
B. The Second Cause of Action was Based on Protected Activity[*]
C. Probability of Prevailing
Falun Gong next contends that the trial court erred in concluding that Falun Gong had no probability of prevailing on its Act claim. Falun Gong argues that (1) it had standing to sue under the Act, both as an organization in its own right and as a representative of its members, and (2) the Street and Flower Fairs are not expressive and, therefore, mandating inclusion of Falun Gong would not interfere with the Chamber's First Amendment rights. Even if Falun Gong has standing to sue, it has no probability of prevailing. Because the Street and Flower Fairs are expressive events and because requiring the Chamber to admit Falun Gong as a participant in the events would interfere with the message expressed in them, the First Amendment protects the Chamber's selection decision.
"[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense. [Citation.]" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 [35 Cal.Rptr.3d 31].) In addition, in assessing whether the plaintiff has a probability of prevailing, the court does not weigh the credibility or comparative strength of the competing evidence, but instead should grant the motion "if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) The Chamber asserted the First Amendment as an affirmative defense to Falun Gong's Act claim, and bears the burden of proving, as a matter of law, that the Street and Flower Fairs are expressive activities that merit First Amendment protection.
*600 In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557 [132 L.Ed.2d 487, 115 S.Ct. 2338] (Hurley), the organizer of South Boston's St. Patrick's Day-Evacuation Day Parade denied participation to a group of gay, lesbian and bisexual descendents of Irish immigrants (GLIB) who wished to march in the parade. (Id. at pp. 560-561.) The Massachusetts high court held that exclusion of GLIB from the parade violated the antidiscrimination provisions of the state's public accommodations statute, and rejected the parade organizer's argument that mandating GLIB's admission would interfere with its First Amendment rights. (Hurley, at pp. 563-564.) The United States Supreme Court reversed, holding that mandating inclusion of GLIB "violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." (Hurley, at p. 573.)
(2) First, Hurley concluded that the parade was expressive. Parades are generally expressive, as they involve "marchers who are making some sort of collective point, not just to each other but to bystanders along the way." (Hurley, supra, 515 U.S. at p. 568.) The South Boston parade, in particular, was expressive, as "[s]pectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e.g., `England get out of Ireland,' `Say no to drugs'); marching bands and pipers play; floats are pulled along; and the whole show is broadcast over Boston television." (Id. at p. 569.) The expressive content of the parade was not diminished by the fact that the organizers were lenient about admitting participants (id. at pp. 569-570), or that the parade had no "particularized message": "if confined to expressions conveying a `particularized message,' [citation], [constitutional protection] would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (Id. at p. 569.) GLIB's participation in the parade was equally expressive: the group sought to march in the parade "to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants." (Id. at p. 570.) The court concluded that the parade organizer "clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another." (Id. at p. 574.)
Second, Hurley rejected GLIB's argument that their inclusion would not threaten the parade organizer's right to free speech because the organizer was merely a conduit for speech. The court held that GLIB's message would likely be identified with the parade organizer, "because GLIB's participation would likely be perceived as having resulted from the [organizer's] customary determination about a unit admitted to the parade, that its message was *601 worthy of presentation and quite possibly of support as well." (Hurley, supra, 515 U.S. at pp. 575-576.) Hurley distinguished Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622 [129 L.Ed.2d 497, 114 S.Ct. 2445], which upheld regulations requiring cable operators to reserve channels for certain broadcast signals. Hurley stated that there was a "common practice" by which cable operators could disclaim responsibility for views expressed on their broadcasts, but reasoned that "[p]arades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed," and therefore "there is no customary practice whereby private sponsors disavow `any identity of viewpoint' between themselves and the selected participants." (Hurley, at p. 576.) The court concluded that "[w]ithout deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole." (Id. at p. 577.) The court also noted that disclaimers would be impractical in a moving parade. (Id. at pp. 576-577.)
Falun Gong argues that Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) 547 U.S. 47 [164 L.Ed.2d 156, 126 S.Ct. 1297] (FAIR), not Hurley, governs the determination of the expressive nature of the Street and Flower Fairs. In FAIR, an association of law schools and law faculties sought to exclude military recruiters from their campus job fairs "because they object to the policy Congress has adopted with respect to homosexuals in the military." (FAIR, at p. 52.) Section 983 of title 10 of the United States Code, the Solomon Amendment, however, required the Department of Defense to deny federal funding to institutions of higher education that prohibited military representatives access to and assistance for recruiting purposes. (FAIR, at p. 51.) The United States Supreme Court held that this law did not violate the law schools' First Amendment rights: "In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper...." (FAIR, at p. 64.) The court also rejected the law schools' argument that they "could be viewed as sending the message that they see nothing wrong with the military's policies, when they do." (Id. at pp. 64-65.) The court held the military recruiters' speech would not likely be attributed to the law schools, *602 because the law schools were free to disassociate themselves from the military's views, and students could appreciate the difference between schoolsponsored and nonsponsored speech. (Id. at p. 65.)
Hurley is more apt. Hu declares that the Street and Flower Fairs are "designed by the Chamber to educate the public on the subjects of Chinese culture and history and to encourage participation in the New Year celebration." To communicate this message, the Chamber holds the Street and Flower Fairs at a particular time (Chinese New Year) and in a particular place (Chinatown). The events and activities at the Street and Flower Fairs further contribute to the Chamber's message. The Street Fair has exhibitors promoting Chinese culture and history, a center stage with cultural performances such as lion dancing, folk dancing, exhibitions of Chinese music, puppet shows, and martial arts displays, and a children's area where children can learn how to perform lion dances and learn about Chinese toys, games, and calligraphy. The Flower Fair begins with a miniparade with lion dancers and fireworks, and participants sell fresh flowers, fruit, candy, and other supplies for the New Year. The expressive nature of these events is similar, if not identical, to the parade in Hurley, and merits First Amendment protection.
(3) Falun Gong's participation would also be expressive. In 2004, when permitted to take part in the parade, Falun Gong members distributed "pamphlets containing information regarding ... Falun Gong's beliefs, political views and practices." And the Chamber's selection of participants in the Street and Flower Fairs, like the selection of parade participants in Hurley, promotes the Chamber's message(s), in part by ignoring those of others. The Chamber has reasonably concluded that inclusion of Falun Gong, a group seeking to promote a particular political message, would interfere with the message the Chamber seeks to communicate. When an event is expressive, the selection of some and rejection of other applicants seeking to participate is an important mechanism in shaping the message conveyed. Unlike in FAIR, it cannot be said that the Chamber is "not speaking" when it hosts the Street and Flower Fairs, or that requiring the Chamber to accept the participation by Falun Gong in the Street and Flower Fairs "does not sufficiently interfere with any message" of the Chamber. (FAIR, supra, 547 U.S. at p. 64.)
Falun Gong contends that the commercial aspects of the Street and Flower Fairs demonstrate that they are not expressive. Falun Gong argues that street fairs are generally more commercial in nature than parades, and points to evidence that booths at the Flower Fair sell products for the New Year and *603 the "Flower Fair's purpose essentially limits participation only to merchants who sell cultural products." However, neither the Street Fair nor the Flower Fair is purely commercial; for example, the Street Fair has a center stage with cultural performances, and the Flower Fair begins with a miniparade with lion dancers and fireworks. Moreover, Falun Gong cites no authority for the proposition that the Street and Flower Fairs are less expressive simply because they sell merchandise or have commercial elements. (See Startzell v. City of Philadelphia (E.D.Pa., Jan. 18, 2007, No. 05-05287) 2007 U.S.Dist. Lexis 4082, *38. (Startzell).)
Falun Gong argues that the evidence regarding the expressive nature of the Street and Flower Fairs is disputed and, therefore, the Chamber has not demonstrated as a matter of law that the Street and Flower Fairs are expressive. Falun Gong relies heavily on the declarations submitted with its opposition, which state that the "street fairs are separate from the ... Parade both as an event and as an application process," and that, unlike the Parade, the "street fair itself has no television or radio coverage and is no different th[a]n the myriad of street fairs held through[out] San Francisco during any given year."[5]
Even crediting these statements as true as we must (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821), they do not undermine the Chamber's evidence regarding the expressive nature of the Street and Flower Fairs. Even if the Street and Flower Fairs are separate events from the Parade and have separate application processes, the Chamber's evidence nevertheless demonstrates that the Street and Flower Fairs are organized for the same expressive purpose as the Parade. In addition, though media coverage may help prove that an event is expressive, Falun Gong has presented no authority requiring such coverage; an event without media coverage may also be expressive. Finally, the statement that the Street and Flower Fairs are "no different" from other street fairs in San Francisco is so vague as to be meaningless, and does not contradict any of the Chamber's factual assertions.
*604 (4) Falun Gong relies on Parks v. City of Columbus (6th Cir. 2005) 395 F.3d 643 (Parks) to argue that a street fair, unlike a parade, must have a "very specific" or "particular" message to warrant First Amendment protection. We disagree. Hurley held a parade could be expressive, though it lacked a particularized message, and neither law nor logic compels the conclusion that the Street and Flower Fairs fall outside the scope of Hurley simply because they are stationary events rather than moving processions. Courts have recognized that Hurley's "precepts hold equally for stationary assemblies" such as political rallies. (Schwitzgebel v. City of Strongsville (N.D. Ohio 1995) 898 F.Supp. 1208, 1219; see Startzell, supra, 2007 U.S.Dist. Lexis 4082, *35-*36.) In Startzell, for example, the court applied Hurley to a street festival and held that organizers of a gay pride festival (Outfest) had the right to exclude a group expressing an antigay message. (Startzell, at pp. *32-*39.) Outfest was a crowded street festival with vendors, "stages, dance, sports, and amusement areas, a family zone, and a flea market" (id. at p. *38), was held in conjunction with National Coming Out Day in the center of Philadelphia's gay community, and was "designed to advance lesbian, gay, and bisexual rights" (id. at p. *36). The court concluded that Hurley had "broad application beyond parades" (Startzell, at p. *35), and found Outfest to be an expressive event (id. at p. *35). Although stationary, the Street and Flower Fairs are also expressive events, educating the public regarding Chinese culture and history.
Falun Gong misreads Parks to argue that the collective message of the Street and Flower Fairs does not deserve First Amendment protection. In Parks, the Columbus (Ohio) Arts Festival (CAF) brought "`visual and performing artists to the city.'" (Parks, supra, 395 F.3d at p. 645.) Parks attended, wearing a sign bearing a religious message and, for that reason, was barred from the CAF. (Id. at p. 646.) In the course of reaching its conclusion that Parks's First Amendment rights were violated, the court found that Hurley did not provide the CAF with a First Amendment right of its own to exclude a message inconsistent with the one it was expressing. Parks stated, "While it is unclear that the [CAF] was actually expressing a particular message, the City [of Columbus] `submitted that the collective message of the Greater Columbus Arts Council is to bring visual and performing artists to the City [of Columbus] to be enjoyed by those who wish to go to the [CAF].'... This is not an expressive message, but merely a purpose for the event. The [CAF] is an event that most likely has many artists who are expressing various messages of their own. It is therefore difficult to determine a collective message for the [CAF] itself. If, however, we were to construe the message of the [CAF] to be `visual and performance art,' nothing in the record indicates that Parks interfered with or prevented this `message' from being conveyed." (Parks, at p. 651.)
*605 Parks did not create a different test of expressiveness for stationary assemblies that was more rigorous than the test Hurley imposed on parades. In fact, Parks assumed that a collective message warranted protection, but was skeptical the CAF conveyed one. In any event, Parks did not turn on the CAF's inability to prove its own message. Instead, Hurley was found inapplicable because Parks did "not seek inclusion in the speech of another group." (Parks, supra, 395 F.3d at p. 651.) Parks was "merely another attendee of the [CAF], walking up and down the street." (Ibid.) As such, Parks did not interfere with any message conveyed by the CAF. Nothing in that case undermines our conclusion that Hurley protects the Street and Flower Fairs, and each was entitled to exclude a particular messenger from participation to promote its own, very different message. (See Hurley, supra, 515 U.S. at p. 574.)
(5) Additional cases relied on by Falun Gong are likewise inapposite. These cases address situations in which individuals promoting a particular viewpoint seek to be present in a public place or to attend a public event, not to participate in that event. In Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [64 L.Ed.2d 741, 100 S.Ct. 2035], the Supreme Court held that a privately owned shopping center could not exclude a group of high school students who wanted to set up a table in the shopping center courtyard and circulate materials related to a United Nations resolution. The court reasoned that because the shopping center was open to the public, "[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner." (Id. at p. 87; see id. at pp. 85-87.) Similarly, in Wickersham v. City of Columbia (W.D.Mo., Mar. 31, 2006, No. 05-4061-CV-C-NKL) 2006 U.S.Dist. Lexis 15438, affirmed (8th Cir. 2007) 481 F.3d 591, the court held that the organizer of a Memorial Day airshow open to the public could not deny entry to individuals wishing to distribute leaflets at the event. (Wickersham, at p. *30.) The court distinguished Hurley because the leafletters were not trying to participate in the airshow and were "not even asking to operate a booth." (Wickersham, at p. *16.) Instead they merely sought to attend the airshow, and, therefore, "there is no reasonable likelihood that the [leafletters] will be seen as spokesmen for the [event organizer] merely because they are present in a public area of the [a]ir [s]how." (Id. at p. *18; see Parks, supra, 395 F.3d at p. 651.) The court further noted that there was no evidence in the record that the airshow was perceived to be expressive. (Wickersham, at p. *18.) In Wickersham and Pruneyard, the courts concluded that where individuals merely attend a public event, their views are not likely to be identified with those of the event organizer. Falun Gong, by contrast, does not seek merely to attend the Street and Flower Fairs as a spectator, but asks to participate in the events by operating a booth.
*606 Finally, Falun Gong contends its presence at the Street and Flower Fairs would not interfere with any expressive activity by the Chamber, because the Chamber could post disclaimers disassociating itself from Falun Gong's views. But if Falun Gong operated a booth at the Street and Flower Fairs, spectators would likely associate the Chamber with Falun Gong's views. It certainly seems unlikely that spectators viewing an array of participants in booths at a street fair will distinguish between those who present sponsored rather than nonsponsored speech. As a result, "[Falun Gong's] participation would likely be perceived as having resulted from the [organizer's] customary determination about a unit admitted to the [Street and Flower Fairs], that its message was worthy of presentation and quite possibly of support as well." (Hurley, supra, 515 U.S. at p. 575.) Unlike the law schools and law faculties in FAIR, the Chamber cannot easily disassociate itself from the views of its participants. As with the parade in Hurley, the overall message of the Street and Flower Fairs "is distilled from the individual presentations" selected by the Chamber, and there is no customary practice by which the Chamber can disclaim responsibility for the views expressed by its participants. (See Hurley, at p. 577.) Given the nature of the Street and Flower Fairs, even if the Chamber posted disclaimers disassociating itself from Falun Gong's views, it is likely spectators would associate those views with the Chamber.
(6) In sum, the Street and Flower Fairs are expressive events and are entitled to exclude as participants those who wish to express their own discordant views. Falun Gong could have held its own fair or attended the Street and Flower Fairs and expressed its views verbally or by signs, pamphlets or other paraphenalia. (See Sistrunk v. City of Strongsville (6th Cir. 1996) 99 F.3d 194, 199.) It had no right to insist on being included in the Chamber's expressive activity. Falun Gong has no probability of success on the claim in its second cause of action.[6]
II. The Chamber's Appeal from the Court's Award of Attorney Fees and Costs[*]
*607 DISPOSITION
The order granting the Chamber's motion to strike Falun Gong's Act claim is affirmed (A115535). The order granting the Chamber's motion for attorney fees and costs is reversed and remanded for recalculation, consistent with this opinion, of the Chamber's attorney fees and costs (A116307). The Chamber is entitled to attorney fees and costs on appeal.
Jones, P. J., and Needham, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105 and 8.1110, parts I.B. and II. of this opinion are not certified for publication.
[1] The Chamber "is a non-profit civic organization whose stated mission is to advance the business interests of the Chinese community."
[2] All undesignated section references are to the Code of Civil Procedure.
We will sometimes refer to section 425.16 as the anti-SLAPP (strategic lawsuit against public participation) statute.
[3] The first and third causes of action are brought by Eva Chuk (Chuk), an individual, against the City and County of San Francisco (CCSF). Chuk alleges that she is a San Francisco taxpayer and a Falun Gong practitioner, and brings this claim for illegal expenditure of CCSF funds on behalf of San Francisco taxpayers. (§ 526a.) In the first cause of action, Chuk seeks an injunction against the CCSF prohibiting future funding to the Parade and an order requiring the Chamber to reimburse any funds received for the 2006 Parade. In the third cause of action she seeks a judicial declaration that the CCSF's funding of the Parade violates the antidiscrimination provisions of the San Francisco Administrative Code, section 12C. The court denied the Chamber's motion to strike the first and third causes of action on the ground that the Chamber was not a party to these causes of action and therefore had no standing to bring a motion to strike. The ruling as to the first and third causes of action is not an issue in this appeal, and CCSF is not a party to this appeal.
[*] See footnote, ante, page 590.
[5] The Chamber filed evidentiary objections to this evidence in the trial court, and contends on appeal that its objections were not waived. In the anti-SLAPP context, evidentiary objections are waived when counsel does not seek or obtain rulings on its evidentiary objections at the hearing (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710, 713 [27 Cal.Rptr.3d 318] ["`[i]f evidentiary objections have previously been filed in writing, it is [counsel's] job (tactfully) to remind the court at the hearing of the necessity to rule on [the objections]'"]), unless counsel's further requests for a ruling would have been futile (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1580 [31 Cal.Rptr.3d 368]). Here, the Chamber filed a written request for a ruling on the same date that it filed its evidentiary objections. However, the trial court did not rule upon the Chamber's objections at the hearing, and the Chamber did not orally request a ruling at the hearing. Therefore, we deem the Chamber's evidentiary objections waived.
[6] Because of our conclusion that the Street and Flower Fairs are expressive activities, entitled to the protection of the First Amendment, we need not discuss the Chamber's contention that because the second cause of action is based in part on the Parade allegations and Falun Gong has no probability of prevailing on these allegations, the entire cause of action lacks merit.
[*] See footnote, ante, page 590. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265538/ | 163 Cal.App.4th 359 (2008)
MARTIN A. STEINER, Plaintiff and Appellant,
v.
PAUL THEXTON, as Trustee, etc., Defendant and Respondent; SIDDIQUI FAMILY PARTNERSHIP, Intervener and Appellant.
No. C054605.
Court of Appeals of California, Third District.
May 28, 2008.
*362 Law Office of Robert Vaughan and Robert Vaughan for Plaintiff and Appellant.
Law Office of Klaus J. Kolb and Klaus J. Kolb for Intervener and Appellant.
Law Office of David L. Price and David L. Price for Defendant and Respondent.
OPINION
SIMS, Acting P. J.
In this action seeking specific performance of a real estate sales agreement, the hopeful buyer, plaintiff Martin A. Steiner, and his partial assignee, intervener Siddiqui Family Partnership, (collectively, plaintiffs) appeal from a judgment, following a bench trial, entered in favor of the property owner, defendant Paul Thexton, as trustee for the FAS Family Trust (Thexton). Plaintiffs contend the trial court erred in construing the contract as an unenforceable option to buy the property, void for lack of consideration, *363 and in awarding attorney's fees to defendant. We shall affirm the judgment and the attorney's fee award.
FACTUAL AND PROCEDURAL BACKGROUND
On October 20, 2004, Steiner filed a complaint seeking specific performance of a "REAL ESTATE PURCHASE CONTRACT."
Thexton filed an answer, asserting a variety of defenses, including a defense that the "contract" was a disguised option, void for lack of consideration.[1]
On March 21, 2006, Siddiqui, with leave of court, filed a complaint in intervention, based on Steiner's partial assignment of his rights under the "contract" to Siddiqui, pursuant to an agreement for Steiner and Siddiqui to participate in the expenses of the effort to subdivide the property. Siddiqui sought specific performance. Siddiqui's complaint also sought damagesfor capital gains taxes it owed on the sale of other property, which it planned to defer by using the money to buy Thexton's property in a "1031 exchange" under the Internal Revenue Code. However, Siddiqui later withdrew the claim for monetary damages, asking instead for reformation of the Steiner/Thexton agreement to allow additional time to pay Thexton.
As adduced in the bench trial, Steiner, a real estate developer, was interested in buying and developing several residences on a 10-acre portion of Thexton's 12.29-acre parcel. In order for this to happen, county approvals for a parcel split and development permits were required. Steiner approached Thexton, who had not been interested in selling the property on which he resided, but considered selling a portion of the property. Thexton had previously turned down an offer from a different party for $750,000, because that party wanted Thexton to obtain the required approval and permits. The agreement between Thexton and Steiner, which was prepared by Steiner, was for Thexton to sell the 10-acre portion to Steiner for $500,000 by September 2006, if Steiner decided to purchase the property after pursuing, expeditiously and at Steiner's own expense, the county approvals and permits. However, the "contract" also provided that Steiner was not obliged to do anything and could abandon the effort with notice to Thexton and delivery to Thexton of any work performed up to the time of such notice.
*364 Thus, the document executed by Steiner and Thexton on September 4, 2003, was labeled, "REAL ESTATE PURCHASE CONTRACT." (A copy is attached as an appendix.) It stated in part:
"Martin A. Steiner and/or Assignee, hereinafter called `Buyer,' offers to pay to FAS Family Trust, Paul Thexton, hereinafter called `Seller', the purchase price of Five Hundred Thousand Dollars ($500,000.00) for 10 acres of a 12.29 acre property situated in the County of Sacramento . . . hereinafter called `Property' . . . .
"TERMS OF SALE:
"1. Upon Seller's acceptance escrow shall be opened and $1,000.00 . . . shall be deposited by Buyer, applicable toward purchase price.[2]
"2. During the escrow term, Seller shall allow Buyer an investigation period to determine the financial feasibility of obtaining a parcel split for development of the Property. Buyer shall have no direct financial obligation to Seller during this investigation period as Buyer will be expending sums on various professional services needed to reach the financial feasibility determination. Buyer hereby warranties that all fees shall be paid for said professional services by Buyer and neither the Seller nor the Property will in any way be obligated or indebted for said services. [¶] . . . [¶]
"5. Buyer will pay for the required civil engineering and surveying for the entire parcel map. Any agency requirements of Seller's remaining 2.29 acre parcel will be paid by Seller. Any agency requirements for planning, development or entitlement of the 10 acre parcel will be paid by Buyer. [¶] . . . [¶]
"10. If any condition herein stated has not been eliminated or satisfied within the time limits and pursuant to the provisions herein, or if, prior to close of escrow, Seller is unable or unwilling to remove any exceptions to title objected to, and Buyer is unwilling to take title subject thereto, then this Contract shall at the end of the applicable time period, become null and void. [¶] . . . [¶]
"17. Buyer hereby agrees to purchase the above-described Property for the price and upon the terms and conditions herein expressed. . . . [¶] . . . [¶]
*365 "CONTINGENCIES:
"The Buyer shall have from date of acceptance until the closing of escrow to satisfy or waive the items listed herein below:
"1. Seller is aware that Buyer plans to subdivide, apply for planning entitlements and develop 10 acres from the existing parcel and agrees to cooperate, as needed, with Buyer as Buyer attempts to obtain the necessary permits and authorizations from the various local jurisdictions.
"2. Buyer, at his sole option and expense, will conduct all necessary investigations, engineering, architectural and economic feasibility studies as outlined earlier in this Contract.
"3. Both Buyer and Seller understand that Buyer could have substantial investment during this development period.
"4. Buyer shall hereby indemnify and hold Seller harmless for any acts, errors or omissions of Buyer or Buyer's agents; and Buyer and Buyer's agent hereby agree that, upon the performance of any test, they will leave the Property in the condition it was in prior to those tests.
"5. By acceptance of this offer, the Seller has granted Buyer and/or Buyer's agents, the right to enter upon subject Property for the purpose of conducting said tests and investigations.
"6. Buyer shall indemnify and hold Seller harmless for any costs associated with Buyer's investigations. In the event that this contract is terminated prior to the close of escrow, Buyer shall deliver to Seller the originals or copies of all information, reports, tests, [etc.]
"7. It is the intent of Buyer that the time period from execution of this contract until the closing of escrow is the time that will be needed in order to be successful in developing this project. It is expressly understood that the Buyer may, at its absolute and sole discretion during this period, elect not to continue in this transaction and this purchase contract will become null and void.
"CLOSE OF ESCROW:
"Upon successful completion of subdividing the 10 acres from the existing parcel, Buyer will pay Seller the balance of the purchase price to escrow and close immediately.
"Buyer will move expeditiously with the parcel split. It is anticipated it will take one to three years, due to existing governmental requirements.
*366 "Buyer will give quarterly reports to Seller as to progress of the parcel split.
"If parcel split is not completed by September 1, 2006, this real estate purchase contract will be cancelled." (Italics added.)
Steiner began pursuing the necessary county approvals and (with his partial assignee, Siddiqui) ultimately expended thousands of dollars in this endeavor.[3]
Steiner and Thexton signed an addendum to the "contract" in January 2004. The addendum allowed Steiner to purchase up to 10.17 acres (as opposed to the 10 acres in the original agreement), with a concomitant increase in price. The addendum also deleted original requirements that Steiner grant an easement to Thexton and not build within 100 feet of Thexton's home, and called for Steiner to demolish some old buildings and provide a standard water hookup at no cost to Thexton.[4]
In May and August 2004, Thexton cooperated with Steiner's efforts by signing, as property owner, (1) Siddiqui's application to the county planning department for a tentative parcel map, and (2) a letter stating an existing structure on the property had no historical significance and would be razed.
In October 2004, Thexton asked the title company to cancel escrow.[5] When Steiner inquired, Thexton said he no longer wanted to sell the property. Steiner nevertheless proceeded with the final hearing of the parcel review committee and apparently obtained approval for a tentative map (evidence which the trial court admitted as going to Steiner's state of mind). Steiner opposed the cancellation of escrow and filed this lawsuit seeking specific performance. The escrow agent continued to hold the money pending trial of this lawsuit.
Following the bench trial, the trial court issued a statement of decision, stating in part:
"Th[e] contract is unenforceable against Defendant Paul Thexton because it is, in effect, an option that is not supported by any consideration. [¶] . . . [¶]
*367 "[T]he contract must be construed as an option contract because defendant bound himself to sell the subject property to plaintiff at a stated price for an undefined period of up to three years (described in the contract as the `investigation period'), while plaintiff retained the `absolute and sole discretion' to elect not to continue in the transaction at any time during that period, in which case the purchase contract would become `null and void.' The unilateral nature of this agreement is the classic feature of an option. . . .
"Based on the evidence and the language of the contract itself, the Court finds that the option was not supported by consideration. There was no evidence that any money was paid directly to defendant for his grant of the option to purchase the property, or that defendant received any other benefit or thing of value in exchange for the option. As provided in the contract, plaintiff did deposit $1,000 into an escrow account (and subsequently, plaintiff-in-intervention placed another $1000 into the same escrow account), but the contract provided (Terms of Sale, par. 1) that such payment was to be applicable to the purchase price, and was not for the grant of an option. That this payment was not for the option is confirmed by the fact that plaintiff was under no contractual obligation to remit the $1000 (or $2000) to defendant upon termination of the escrow.
"Plaintiff contends that the work that was done, and expenses incurred, in preparing for the parcel split, conferred a benefit upon defendant, or at least constituted a prejudice assumed by plaintiff, such that such work and expenses amount to consideration sufficient to support the contract. This contention must be rejected. The evidence did not support the contention that any work plaintiff did in furtherance of the parcel split conferred any actual benefit on defendant. To the extent that such work imposed a burden or prejudice upon plaintiff, the contractual language refutes the concept that it was intended to be or should be seen as consideration for the option, because notwithstanding any such work or expense he might undertake, plaintiff still retained the absolute discretion to elect not to continue in the transaction at any time. Consideration must be measured as of the time the contract is entered into. [Citation.] At the time the subject contract was entered into, as at all relevant times, plaintiff could have elected not to continue with the purchase without undertaking any work or expense at all. In fact, plaintiff had not bound himself to do anything, and thus had provided no consideration for the option. Plaintiff has also described as consideration certain additional provisions contained in the purchase agreement itself (i.e. the obligations to `move expeditiously with the parcel split,' to `give quarterly reports to Seller as to the progress of the parcel split,' to `indemnify . . . Seller . . . for any costs associated with Buyer's investigations,' and to `deliver to Seller the originals or copies of all information' gathered in his investigations if the contract were terminated). These matters still do not constitute consideration for the option. First, plaintiff had the contractual right to terminate the *368 contract at any time, which may well have been before any of these items were undertaken. We cannot look with hindsight to find consideration in some obligation which plaintiff may have undertaken, even though not compelled to undertake. [Citation.] Second, the very items which plaintiff describes as obligations were subject to his own language that he could cancel the contract at any time, for any reason, at which time the contract would be null and void.
"The Court likewise rejects plaintiff's claim that in the absence of consideration for the option, his actions constituted a consideration substitute and thus the Court should apply the doctrine of promissory estoppel to avoid injustice. Neither plaintiff nor plaintiff-in-intervention pleaded or otherwise sought promissory estoppel in his or its complaint, and neither sought to amend at any time thereafter. A prerequisite for maintaining a claim for promissory estoppel is that `the party claiming estoppel must specifically plead all facts relied on to establish its elements.' [Citation.] Even if the Court were to consider the equities involved over and above the pleading and proof requirements, plaintiff cannot establish a claim for promissory estoppel for the reasons set forth above: even if his actions following the execution of the contract could give rise to a claim for promissory estoppel, these actions are not tied to the consideration necessary for the option itself. Plaintiff retained his ability to walk away from the contract at any time and therefore the elements of the doctrine are not satisfied."
The trial court entered judgment in favor of defendant.
Thexton then filed a motion for contractual attorney's fees (Civ. Code, § 1717), as we describe post. The trial court granted the motion and awarded attorney's fees in favor of Thexton, as against both Steiner and Siddiqui.
Steiner and Siddiqui appeal from the judgment and attorney's fee award. Siddiqui filed the appellate brief, in which Steiner joined.
DISCUSSION
I. Standard of Review
Plaintiffs contend all issues on appeal present issues of law subject to de novo review. Thexton says the appeal involves a mix of questions of fact and law.
The interpretation of the contract, which does not involve conflicting extrinsic evidence, is a question of law subject to de novo review. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866 [44 Cal.Rptr. 767, 402 P.2d 839].)
*369 As to the question of adequacy of consideration, Thexton cites Chalmers v. Raras (1962) 200 Cal.App.2d 682 [19 Cal.Rptr. 531], which said that adequacy of consideration "`"is always peculiarly a question of fact for the trial court to determine, in the light of all the facts and circumstances of each particular case."'" (Id. at p. 689.) Plaintiffs reply that where, as here, the facts are not in dispute, the appellate court faces a question of law and is not bound by the trial court's findings. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278].) As will appear, even under a de novo standard, there was no adequate consideration in this case.
The attorney's fee award is subject to review under an abuse of discretion standard. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096 [95 Cal.Rptr.2d 198, 997 P.2d 511].) Plaintiffs again assert their challenge presents a question of law on undisputed facts, and again plaintiffs' challenge fails under either standard.
II. The Contract Is a Disguised, Unenforceable Option
Plaintiffs argue the trial court erred in concluding the "REAL ESTATE PURCHASE CONTRACT" was really a disguised option, unenforceable due to lack of consideration. We shall conclude (a) the agreement, despite its label as a real estate purchase contract, was really an attempt to create an option agreement; and (b) the attempt to create an option failed due to lack of consideration, such that the "contract" was nothing more than a continuing offer to sell which could be revoked by Thexton at any time.
A. Disguised (Attempted) Option
(1) That the document called itself a "REAL ESTATE PURCHASE CONTRACT" is not dispositive; the law looks through the form to the substance. (Welk v. Fainbarg (1968) 255 Cal.App.2d 269, 272-273 [63 Cal.Rptr. 127].)
"When by the terms of an agreement the owner of property binds himself to sell on specified terms, and leaves it discretionary with the other party to the contract whether he will or will not buy, it constitutes simply an optional contract." (Johnson v. Clark (1917) 174 Cal. 582, 586 [163 P. 1004].) Johnson held the agreement was an option rather than a sales contract, despite the facts that (1) the would-be buyer paid $100, which he would lose if he refused to buy the mining property, and (2) he took possession of the property with his employee in order to examine it and prospect it for the purpose of determining whether he would buy it. (Id. at p. 586.)
*370 (2) An option to purchase property is "a unilateral agreement. The optioner offers to sell the subject property at a specified price or upon specified terms and agrees, in view of the payment received,[6] that he will hold the offer open for the fixed time. Upon the lapse of that time the matter is completely ended and the offer is withdrawn. If the offer be accepted upon the terms and in the time specified, then a bilateral contract arises which may become the subject of a suit to compel specific performance, if performance by either party thereafter be refused." (Auslen v. Johnson (1953) 118 Cal.App.2d 319, 321-322 [257 P.2d 664].)
(3) There is a difference between an option and the exercise of the option which results in a contract of purchase and sale. Thus, "[a]n option may be viewed as a continuing, irrevocable offer to sell property to an optionee within the time constraints of the option contract and at the price set forth therein. It is, in other words, a unilateral contract under which the optionee, for consideration he has given, receives from the optioner the right and the power to create a contract of purchase during the life of the option. `An irrevocable option is a contract, made for consideration, to keep an offer open for a prescribed period.' [Citation.] An option is transformed into a contract of purchase and sale when there is an unconditional, unqualified acceptance by the optionee of the offer in harmony with the terms of the option and within the time span of the option contract. [Citation.]" (Erich v. Granoff (1980) 109 Cal.App.3d 920, 927-928 [167 Cal.Rptr. 538].)
Here, the agreement was an (attempted) option in which defendant bound himself to sell on specified terms and left it discretionary with Steiner whether he would or would not buy the property.
Plaintiffs argue the agreement was not an option, because nothing in the agreement required Thexton to keep the property off the market for the three-year term of the contract. However, plaintiffs continue on to defeat their own argument, by saying the agreement did not require Thexton to keep the property off the market "if Buyer decides to cancel the Contract at any time before September 1, 2006." Of course, if plaintiffs cancelled the option, Thexton would no longer be bound by it. But while it was still in effect (if it was a valid option supported by consideration), Thexton could not sell the property to anyone else.
Plaintiffs argue the contract required Thexton to keep the property off the market only as long as plaintiffs moved forward "expeditiously" with the government approvals. However, despite plaintiffs' assertion that Thexton could have sued them if they failed to act expeditiously, the promise to act *371 "expeditiously" was an unenforceable promise, since the agreement did not require plaintiffs to move forward at all. The same applies to Steiner's promise to pay for the investigations and applications for the county approvals. This was an unenforceable promise because he had to pay only if he went forward seeking the county approvals. The agreement did not require him to move forward.
(4) We conclude the agreement was not a contract of purchase and sale, but was rather an unsuccessful attempt to create an option, which in any event was never exercised by plaintiffs. Plaintiffs are incorrect in saying they exercised the option by pursuing the county approvals. The flaw in their position is evident from their assertion that they "had already accepted the offer" when Thexton tried to revoke. However, under the express terms of the agreement, their "acceptance" remained subject to contingencies which had not been satisfied, such as county approval, and they remained free to walk away.
We now turn to the question whether Thexton was entitled to withdraw from the deal.
B. Option Unenforceable Due to Lack of Consideration
Plaintiffs argue that, even if the contract was a disguised option, the trial court erred in concluding the option was unenforceable due to lack of consideration. We disagree with plaintiffs.
(5) To be enforceable, an option, like any contract, must have consideration. (Civ. Code, § 1550 [elements essential to existence of contract include a sufficient cause or consideration].) Thus, "`[a]n agreement for an option not based upon consideration is simply a continuing offer which may be revoked at any time.' [Citation.]" (Kelley v. Upshaw (1952) 39 Cal.2d 179, 191 [246 P.2d 23].) "An option based on consideration, whether it be the proverbial peppercorn or some other detriment, is itself a binding contract. . . and is mutually enforceable. [Citations.] In other words, an option based on consideration contemplates two separate cont[]racts, i.e., the option contract itself, which for something of value gives to the optionee the irrevocable right to buy under specified terms and conditions, and the mutually enforceable agreement to buy and sell into which the option ripens after it is exercised. Manifestly, then, an irrevocable option based on consideration is a contract. . . . [¶] On the other hand, an option without consideration is not binding on either party until actually exercised, and is not a contract in the traditional sense, nor is it a contract under section 1550 of the Civil Code. In short, `[i]t is essential to the existence of a contract that there be sufficient cause or consideration, for a promise unsupported by consideration has no *372 binding force. . . .' [Citations.] In other words, an option given without any consideration contemplates only one contract, the one which comes into existence after it is exercised. Thus, until exercised such an option is merely `a continuing offer which may be revoked at any time.' [Citations.]" (Torlai v. Lee (1969) 270 Cal.App.2d 854, 858-859 [76 Cal.Rptr. 239].)
Additionally, though not cited by the parties, Civil Code section 3391 provides in part: "Specific performance cannot be enforced against a party to a contract in any of the following cases: [¶] 1. If he has not received an adequate consideration for the contract . . . ."
Thus, the "contract" was nothing more than a revocable offer unless there was consideration.
Plaintiff argues there was consideration. We disagree.
"Consideration" is defined in Civil Code section 1605, which states: "Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise." Civil Code section 1606 states, "An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise."
The trial court found plaintiffs paid nothing other than $1,000 each, but that money was not paid for the grant of an option. The "contract" expressly stated such payment was to be applied to the purchase price. If no purchase took place, the money would go back to plaintiffs upon termination of escrow. Plaintiffs cite no evidence and present no argument that Thexton was entitled to keep that money in the event no purchase took place. Steiner testified it was his understanding that the money (which was still being held in escrow pending trial) would go back to him if he decided not to purchase the property.
(6) Plaintiffs argue there was consideration, in that they conducted the investigations, at their own expense, and the contract called for them to turn over the results to Thexton, such that Thexton benefitted from plaintiffs' efforts. However, the agreement did not require them to conduct the investigations at all. As noted by the trial court, "the adequacy of consideration must be determined as of the date of the agreement, and not at the time of performance. [Citations.]" (Drullinger v. Erskine (1945) 71 Cal.App.2d 492, 495 [163 P.2d 48].)
*373 As of the date the agreement was executed, the agreement did not require plaintiffs to do anything (other than pay the deposit toward the purchase price). The agreement stated, "It is expressly understood that the Buyer may, at its absolute and sole discretion during this period, elect not to continue in this transaction and this purchase contract will become null and void." Thus, the agreement required Steiner to assume the expense of the parcel split, but only if he chose to do so. This does not constitute consideration for the option.
Even assuming Thexton specifically negotiated the provision requiring expeditious action by Steiner (though the transcript cited by plaintiffs shows only that Steiner testified Thexton said the provision was important to him), we reject plaintiffs' argument that Steiner's promise to act "expeditiously" constituted consideration for the option and a legal obligation under the implied covenant of good faith and fair dealing. This argument is defeated by the express clause allowing Steiner to walk away without doing anything.
(7) We similarly reject the argument that legal consideration is found in the provision that "[i]n the event that this contract is terminated prior to the close of escrow, Buyer shall deliver to Seller the originals or copies of all information, reports, tests, studies and other documentation obtained by Buyer from independent experts and consultants concerning the Property." In order for these provisions to constitute consideration, they must impose binding legal obligations on Steiner. (Mattei v. Hopper (1958) 51 Cal.2d 119, 122 [330 P.2d 625] [in a contract where consideration consists of mutual promises, and the promise of one party is not enforceable, the obligations imposed thereby are not mutual, and consideration is lacking].) Here, the provisions did not impose binding legal obligations on Steiner, because of the clause allowing Steiner to back out of the deal without doing anything at all.
The same applies to the January 2004 addendum to the contract, which added items in the event the sale was consummated but did not alter Steiner's power to withdraw.
Thus, the agreement did not legally bind Steiner to make any expenditures.
We therefore need not address plaintiffs' argument that their expenditures constituted consideration by benefitting the property or Thexton (though we will address this argument in our discussion of promissory estoppel, post).
Plaintiffs cite Bleecher v. Conte (1981) 29 Cal.3d 345 [213 Cal.Rptr. 852, 698 P.2d 1154], which found mutuality of obligations in a real estate contract that required the buyers to "`proceed with diligence'" and "`do everything in their power to expedite the recordation of the final map,'" without which *374 the sale would not go forward. (Id. at pp. 350-351.) There, however, "the buyers expressly promised . . . to refrain from withholding their approval unreasonably." (Id. at p. 351.) Bleecher, supra, 29 Cal.3d at p. 351, distinguished a case (Sturgis v. Galindo (1881) 59 Cal. 28) where enforcement was denied because the land sale contract gave one party the right to withdraw at its discretion.
Here, we have a case more like Sturgis than Bleecher, because here the agreement expressly gave Steiner the right to walk away at his discretion for no reason whatsoever.
Though not mentioned by the parties, we note Civil Code section 3386 states, "Notwithstanding that the agreed counterperformance is not or would not have been specifically enforceable, specific performance may be compelled if: [¶] (a) Specific performance would otherwise be an appropriate remedy; and [¶] (b) The agreed counterperformance has been substantially performed or its concurrent or future performance is assured or, if the court deems necessary, can be secured to the satisfaction of the court." The statute, as amended in 1969, "discarded the rigid requirement of mutuality in favor of a flexible rule that allows courts to ensure equity is done to both parties." (Converse v. Fong (1984) 159 Cal.App.3d 86, 92 [205 Cal.Rptr. 242].) We need not consider this matter, because plaintiffs do not invoke Civil Code section 3386 and do not contend Thexton could have compelled specific performance against plaintiffs. To the contrary, plaintiffs merely claim (without supporting authority) that, if they failed to move expeditiously, Thexton could have sued for monetary damages, which they assert would have been de minimis in any case.
Plaintiffs cite a federal case, Fosson v. Palace (Waterland), Ltd. (9th Cir. 1996) 78 F.3d 1448, which cited Bleecher v. Conte, supra, 29 Cal.3d 345, for the propositions that (1) an implied covenant of good faith and fair dealing is implied in every contract, and (2) if a contract is capable of two constructions, the court must choose an interpretation that will make the contract binding if it can be done without violating the parties' intentions. (Fosson, supra, 78 F.3d at p. 1454.)
The federal Fosson case is not binding on us (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55 [134 Cal.Rptr.2d 420]), and in any event, it is distinguishable. It involved a license agreement pursuant to which the defendants, film producers, agreed to pay a fee of $1,250 to the plaintiff, a musician, if the defendants used his composition in their film (which they did). However, the lawsuit was not an action to enforce the contract, but rather a copyright infringement action brought by the composer, who sought $10,000 in damages based on the defendants' delay in paying the $1,250 *375 license fee. (Id. at p. 1450.) The composer argued the license lacked consideration because the producers were not obligated to use the composition, and the composer rescinded the license due to the producers' failure to pay. (Id. at pp. 1453, 1455.) Fosson rejected the arguments, stating that, even though use of the composition was within the producers' discretion and control, a valid contract arose by virtue of the obligations the producers agreed to assume in the event they used the composition. Also, they were under an implied obligation to act fairly. (Id. at p. 1454.) There was no rescission because the agreement contained a provision pursuant to which the composer expressly waived his right to rescind the agreement. (Id. at p. 1455.) Therefore, the composer could not recover for copyright infringement. (Id. at pp. 1454.)
Later in their brief, under a subheading that the agreement is enforceable even if considered an option agreement, plaintiffs cite Patty v. Berryman (1949) 95 Cal.App.2d 159 [212 P.2d 937], that ambiguous agreements should be interpreted to be bilateral rather than unilateral. Here, however, the agreement was not ambiguous. Even if it were ambiguous, the ambiguity would be construed against Steiner, as drafter of the document. (Civ. Code, § 1654; Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1287 [66 Cal.Rptr.3d 704].)
We conclude the agreement was an unsuccessful attempt to create an option and was therefore merely a revocable offer.
C. Estoppel
Plaintiffs argue their actual performance in reliance on the contract provided any missing consideration under the doctrine of promissory estoppel. They argue they completed between 75 and 90 percent of the work needed for the county approvals by the time Thexton tried to cancel the escrow. We shall explain there is no basis for reversal.
(8) The trial court first stated plaintiffs' failure to plead estoppel precluded them from raising the issue. However, the case cited by the trial court (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48 [275 Cal.Rptr. 17]) involved a dismissal following a demurrer, not a judgment following trial. A defect in the pleading is not controlling where the issue has been developed at trial. (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 16 [105 Cal.Rptr. 414].) We therefore do not rest our opinion on the pleading defect.
The trial court went on to say the court would deny the estoppel argument anyway, because plaintiffs' actions following execution of the contract were *376 not tied to the consideration necessary for the option itself, and they always retained the ability to walk away from the contract at any time.
(9) The elements of promissory estoppel are as follows: "`A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'" (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 6 [151 Cal.Rptr. 323, 587 P.2d 1136], adopting Rest., Contracts, § 90.[7]) "`[P]romissory estoppel is a peculiarly equitable doctrine designed to deal with situations which, in total impact, necessarily call into play discretionary powers . . . .'" (C & K Engineering, supra, 23 Cal.3d at p. 7, italics omitted.)
Here, plaintiffs cite Steiner's testimony that he "relied on [Thexton's] promise to sell [him] the property." However, plaintiffs fail to show any injustice in denying enforcement of the agreement. As the trial court observed in denying promissory estoppel, Steiner retained the ability to walk away from the agreement at any time. Steiner gave himself this power in the agreement, which he drafted. There is no injustice in a resolution of this case that effectively accords the reciprocal right to Thexton.
(10) Looking at the equities, we see that, although Steiner and Siddiqui spent thousands of dollars in pursuing the county approvals, they did so at their own risk and for their own benefit. Although plaintiffs assert the only risk they intended was that the county might refuse to approve the parcel split, this intent does not appear in the written document, and any ambiguity would be resolved against Steiner as the drafter of the document. (Civ. Code, § 1654; Zipusch v. LA Workout, Inc., supra, 155 Cal.App.4th at p. 1287.)
Despite the clause requiring Steiner to turn over his work product regarding the parcel split in the event the agreement was terminated, and even assuming plaintiffs' efforts increased the value of the property, plaintiffs fail to substantiate their insinuation that Thexton wanted the county approvals as much as plaintiffs did and deliberately waited until plaintiffs did the work before cancelling the agreement.
Thus, according to Steiner's own testimony, it was Steiner who initiated the idea of this agreement, by writing one or two notes to Thexton expressing interest in buying the property. Thexton did not respond at all. Steiner then approached Thexton in person. Thexton said he received a lot of such *377 inquiries but did not respond to them. Thexton said he might consider selling a portion of the property, but he had never split property before and did not know how it was done. Thexton also expressed concern about maintaining his privacy. Steiner said he would handle the parcel split. Over time, they negotiated the number of acres, with Steiner insisting he wanted 10 acres and rejecting Thexton's proposal for eight acres. Steiner, who is a contractor as well as a developer, gave Thexton referrals of persons to help with home improvement. Thexton later expressed his thanks and said he felt badly because he wanted a million dollars for the property, which he thought was more than Steiner wanted to pay. Steiner said he would pay $500,000 and do the work necessary for the parcel split. Thexton later called and said he had received an offer of $750,000 but would prefer to sell to Steiner because of the help Steiner gave for the home improvement. Steiner said he was not willing to pay more than $500,000. Thexton later called and said the $750,000 deal fell through because the buyer wanted Thexton to handle the parcel split. Thexton asked if Steiner was still interested, and Steiner said yes. They talked about terms. Steiner drafted the document. Thexton said he planned to show it to his lawyer. Thexton later asked for changes, to which Steiner agreed, regarding matters such as an easement and mineral rights.
Thexton testified the property has been in his family since 1944, and he has resided there most of his life and planned to continue living there.
In sum, even assuming plaintiffs' efforts increased the value of the property, the equities do not support compelling Thexton to sell the property.
This case is distinguishable from plaintiffs' cited authority, e.g., Drennan v. Star Paving Co. (1958) 51 Cal.2d 409 [333 P.2d 757], which held a paving company could not withdraw its bid to do certain paving work at a certain price, after the general contractor used the bid and was awarded a general contract. There, however, the agreement between the general contractor and the paving company was silent as to revocation. (Id. at p. 413.) Here, the agreement spoke of revocation, but gave that right only to Steiner, not to Thexton. The agreement was drafted by Steiner.
We conclude the equities do not warrant application of promissory estoppel in this case.
We parenthetically observe plaintiffs try to distort a comment of the trial court, by suggesting it supports their estoppel argument. They quote the judge's comment: "He [Thexton] obstructed the thing and he canned the whole program and that's about all you need. [¶] . . . [¶] . . . He did it at the time when it was all finished, virtually. There was nothing more to do but sign his name." However, the context of the cited quote shows the judge was *378 merely indicating he understood plaintiffs' position, and it was unnecessary for them to adduce a lot of evidence about their claim that Thexton failed to cooperate with the county approvals after he gave notice to cancel escrow. The judge said, "rather than get into all this, can't we just assume that he did obstruct the completion of this transaction." Thus, the trial court's comment does not support plaintiffs' position.
We conclude plaintiffs' promissory estoppel argument does not provide a basis for reversal.
We conclude plaintiffs fail to show grounds for reversal of the judgment.
III. Attorney's Fees
Plaintiffs contend Thexton's motion for attorney's fees failed to provide sufficient evidence for the award, because the motion lacked sufficient evidence as to how many hours were reasonably spent and on what issues. We shall conclude plaintiffs fail to show grounds for reversal.
A. Background
Thexton filed a motion for attorney's fees (Civ. Code, § 1717), based on the contract clause in paragraph 17 under "TERMS OF SALE," that "[i]n the event any litigation or other legal proceedings are instituted to enforce or declare the meaning of any provision of this Contract, the prevailing party shall be entitled to its costs, including reasonable attorneys fees."
In support of the motion, Thexton's attorney submitted a declaration stating in part that "from the inception of this file to date, I have expended a total of 271.0 hours incident to this mat[t]er. Of that time, approximate[ly] 21 hours were spent incident to the proceedings subsequent to receipt of the court's intended decisioni.e., drafting and preparing the statement of decision, opposing the plaintiffs' opposition thereto, and preparing the request for court costs and this motion for attorneys' fees. (The actual time spent following the entry of judgment is actually higher but I have not added that time to these applications. . . .) Excluding that particular post-trial time for the moment, of the total time through entry of the court's intended decision, 79% (or 197.9 out of 250.4 hours) was spen[t] subsequent to the court's mandatory settlement conference. In other words, the vast majority of the total attorney time was spent in the last few weeks before trial, in the depositions of trial experts, in the preparation and completion of the trial itself, and in the post trial steps including preparation of the statement of decision and judgment. In addition, I tracked 33.2 hours of legal assistant time and 115.8 hours of law clerk time related to this file. (I only tracked *379 such time if the efforts undertaken by my staff involved matters which I otherwise would have to have completed if they were not performed by others.) The legal assistant time was billed at the rate of $60.00 per hour. The law clerks who assisted on this file were primarily responsible for trial preparation, research incident to the trial brief and outlines of anticipated trial testimony, preparation of the memorandum of costs, and preparation of the post trial pleadings. Of the total law clerk time spent on this file, I wrote off 31.9 hours. In other words, no one was billed for that time. The law clerks' time was otherwise billed at $90.00 per hour (even though one of them has since passed the California bar exam). (I also used an outside or `contract attorney' for one project incident to this file. She billed me a total of 19 hours for which I wrote off 3.2 and billed Mr. Thexton 15.8 at $175.00/houreven though this attorney has been a member of the bar since 1988.)" (Emphasis omitted.) The declaration stated in a footnote: "This litigation involved a real estate breach of contract with claims for specific performance, damages and restitution. It involved complex income tax issues and the effects of a tax-deferred 1031 exchange.[8] It involved an intervening plaintiff who waited until the literal last moment to intervene, causing a delay in the trial proceedings and significant last minute discovery concerning the 1031 exchange, the alleged damages and lack-of-mitigation defenses. The plaintiffs' contentions necessitated expertise (on the part of defense counsel) in land use development, real estate acquisition, and the terms and conditions typically part of commercial property development. The contractual defenses asserted by the defendant involved lack of mutual assent, lack of ability to contract, lack of consideration, and the literal plethora of related evidentiary concerns." The declaration stated in another footnote that the client billing statements contained privileged communications, but counsel would make the billings available to the court for in camera review. The declaration said a summary identifying the total time spent month by month was attached as an exhibit (which we do not find in the superior court file).
The motion sought a total of $104,683.70.
Steiner and Siddiqui opposed the motion for attorney's fees. They argued the amount was excessive; the fees were inadequately documented; the referenced exhibit was not submitted; and the amount included fees incurred on issues on which defendant did not prevail. Steiner and Siddiqui also filed a motion to tax costs (challenging expert witness fees as a cost element while acknowledging they may be recoverable with attorney's fees).
*380 In reply, Thexton's attorney submitted a supplemental declaration describing some of the proceedings.
On January 23, 2007, the trial court denied the motion to tax costs and granted defendant's motion for attorney's fees, though not for the requested amount of $104,683. Applying the "lodestar" formula (multiplying number of hours reasonably expended by reasonable hourly rate), the court ruled defendant was entitled to an attorney's fee award in the amount of $85,279.
The court's ruling stated in part:
"2. Based on its familiarity with the issues raised and tried in this matter, which consumed seven full days of trial and involved complex legal and factual matters such as the characterization of the contract as an option unsupported by consideration (the issue which eventually proved to be dispositive), defendant's alleged lack of capacity to enter into the contract, and plaintiff-in-intervention's potential claim for damages based on a Section 1031 exchange, the Court finds that the time claimed for work performed by defendant's counsel, David L. Price, and by others working under his direction . . . were directly connected with the litigation, are reasonable and are not excessive.
"3. The time expended by Mr. Price and those working under his direction are documented adequately for the purposes of this motion in Mr. Price's Declaration and Supplemental Reply Declaration. Given the Court's ruling that the time spent on this matter was reasonable in the particular context and circumstances of this case, detailed line-item billing sheets are not necessary. (See, Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [46 Cal.Rptr.2d 677].)"
The trial court awarded a total of $85,279, calculated as follows: 232 hours at $250 per hour; 44 hours at $275 per hour; legal assistants' time of 33.2 hours at $60 per hour; law clerks' time of 115.8 hours at $90 per hour; and a contract attorney's time of 15.8 hours at $175 per hour.
As to plaintiffs' motion to tax costs in the amount of $5,560 for expert witness fees, the trial court's ruling stated: "In their motion, [plaintiffs] suggest that they may be prepared to concede that defendant may recover the claimed costs as part of his claim for attorney's fees. California law does provide that disbursements of counsel for the fees of expert witnesses and consultants may be recoverable as a component of attorney's fees recovered under a contract pursuant to Civil Code section 1717, notwithstanding the fact that expert witness fees may not be recoverable as ordinary costs under Code of Civil Procedure section 1033.5. [Citation.] [¶] Defendant's claim for *381 expert witness fees as an element of costs therefore may have been technically incorrect, but defendant is nonetheless entitled to recover such disbursements in this case as part of the attorney's fees award. Plaintiff's motion to tax these costs is therefore denied."
B. Analysis
As indicated, the attorney's fee award is subject to review under an abuse of discretion standard (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, 1095-1096), but plaintiffs contend their challenge presents a question of law subject to de novo review. We conclude that, under either standard, plaintiffs fail to show grounds for reversal.
(11) "`[T]he fee setting inquiry in California [including Civil Code section 1717 fees] ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case . . . . Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.'" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134 [104 Cal.Rptr.2d 377, 17 P.3d 735], citation omitted; see PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1096-1097 [lodestar approach applies to Civ. Code, § 1717 fees in absence of contract provision as to how to calculate fees].) "The `"experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."' [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1132.)
Plaintiffs contend they were entitled to sufficient information about how and when defense counsel incurred all the fees in order to allow plaintiffs to identify items that potentially should not be recoverable.
A similar contention was rejected in Weber v. Langholz, supra, 39 Cal.App.4th 1578, which in the course of affirming an attorney's fee award stated: "Plaintiff complains that counsel did not state the total number of hours nor substantiate the hours or amounts with copies of time records or copies of billing statements. Counsel's declaration and verified cost memorandum were, however, made under penalty of perjury. Mathematical calculation could show the number of hours was between 90 and 103. The work done was described. The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel's declaration unsubstantiated by time records and billing statements. Although a fee request ordinarily should be documented in *382 great detail, it cannot be said in this particular case that the absence of time records and billing statements deprived the trial court of substantial evidence to support an award; we do not reweigh the evidence. [Citation.]" (Id. at p. 1587.)
Plaintiffs argue Weber is distinguishable because it involved less money (an initial request of $18,075), and the work done was described. However, here too, the work done was described in counsel's declaration (even though there is a question whether a referenced exhibit was actually submitted). That this case involves more money does not support reversal. Plaintiffs argue defendant's attorney spent 50 hours more on the case than either of plaintiffs' attorneys, despite plaintiffs having submitted twice as much briefing as defendant. However, the trial court could and did make its own evaluation.
Plaintiffs argue some of the attorney's fees were incurred on issues on which Thexton did not prevail or for issues for which attorney's fees were not recoverable. However, plaintiffs fail to identify any such issues in their appellate brief, other than one amount which the trial court excluded from the award and which therefore affords plaintiffs no basis for appeal. To the extent plaintiffs want to talk about the expert witness fees, they have forfeited the matter by failing to assign error or present any factual or legal analysis as to the trial court's denial of plaintiffs' motion to tax those costs. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [32 Cal.Rptr.2d 762, 878 P.2d 521] [reviewing court may disregard contentions not adequately briefed].) To the extent plaintiffs might be trying to argue (without development) that Thexton should not be allowed attorney's fees for defenses which ultimately were not dispositive, such as the issue of alcoholism, the argument would fail because plaintiffs did not prevail on those issues either, and they fail to show any abuse of discretion in the trial court making the award without trying to separate out fees for each affirmative defense. (See, e.g., Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997 [242 Cal.Rptr. 272] [trial court has discretion to award all or substantially all of party's attorney's fees, even if court did not adopt each claim raised by the party].)
We conclude appellants fail to show grounds for reversal of the attorney's fee award.
*383 DISPOSITION
The judgment and attorney's fee award are affirmed. Defendant shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Nicholson, J., and Cantil-Sakauye, J., concurred.
*384 APPENDIX
*385
*386
NOTES
[1] Plaintiffs engage in a lengthy discussion about evidence concerning other defenses, particularly Thexton's assertion that his alcoholism rendered him unable to enter a meeting of minds, and Steiner took advantage of him. Although plaintiffs claim this evidence is relevant to provide context for the "disguised option" defense upon which the trial court reached its decision. Thexton also wants to talk about alcoholism on appeal. However, it is not relevant to our resolution of this appeal, and we therefore do not discuss this evidence.
[2] The trial court found that, since this money was to be applied to the purchase price, it did not constitute consideration for the option.
[3] Plaintiffs say they spent $60,000. The trial court at one point said it was less. We will assume for purposes of this appeal that plaintiffs spent $60,000.
[4] There is no indication that the addendum required Steiner to do anything as consideration for the option to buy.
[5] Plaintiffs suggest Thexton was influenced by a meddling companion, Michelle James. Since we conclude the agreement was in effect a revocable offer, Thexton's reasons for withdrawing are immaterial.
[6] As we explain post, here there was no payment received for the option.
[7] The provision remains substantially the same in the Restatement Second of Contracts, though the phrase "of a definite and substantial character" has been deleted.
[8] Siddiqui intended to sell other property it owned and use the proceeds to pay for Thexton's property, making use of an Internal Revenue Service "1031 exchange" to defer taxes on the capital gain. Thexton's agreement with Steiner required Thexton to cooperate with IRS 1031 exchanges. Siddiqui sold its property in 2005, after Thexton cancelled his agreement with Steiner in October 2004. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265540/ | 657 F.Supp. 1409 (1987)
Louis J. DAMIANI and Ronald Herrington, dba Plantation Coal & Land Co., Plaintiffs,
v.
Linda ADAMS, et al., Defendants.
Civ. No. 85-1834-R (IEG).
United States District Court, S.D. California.
March 17, 1987.
*1410 *1411 Louis J. Damiani, et al., pro se.
Donald McGrath II and Cynthia P. Garrett, San Diego, Cal., for defendants.
RHOADES, District Judge.
On April 10, 1986, the Court filed and entered an order granting either summary judgment or dismissal of the complaint as to all of the defendants in this action; the same order denied motions by the plaintiffs for leave to file an amended complaint and for an order substituting an executrix for a deceased defendant. A further hearing on certain of the defendants' motions for sanctions and injunctive relief against the plaintiffs was held on May 19, 1986. At the May 19, 1986, hearing, the Court indicated that it intended to grant the defendants' motions. This Memorandum Decision expounds upon the reasons for the Order of April 10, 1986, orders the imposition of sanctions, and grants the injunctive relief sought by the defendants.
Issuance of this Memorandum Decision and Order was delayed due to the filing by the plaintiffs of a civil action in the Central District of California which named Judge Rhoades, among a number of other judges and attorneys, as a defendant. The Court felt that while it was not obligated to refrain from issuing this order, a delay was appropriate while the Central District case was before Judge Keller. That matter having been resolved in favor of the judicial officers named in the complaint, the Court believes that no further purpose is served in withholding publication of this decision and order.
BACKGROUND
Plaintiffs,[1] who have proceeded in pro se, brought the instant action against some twenty-six individual defendants ("Defendants"). They invoked the jurisdictional basis of the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO"), 18 U.S.C. §§ 1961 et seq. While the complaint is far from a model of clarity, its thrust is that Defendants, who include judicial officers and numerous attorneys, conspired to deprive the Plaintiffs of certain real property located in Monongalia County, West Virginia, and the mineral rights associated with that property. The alleged "continuing conspiracy" purportedly encompasses *1412 virtually the entire court system of Monongalia County. It includes judges, court personnel, attorneys practicing in those courts, law enforcement officers, and other persons who have been involved in one way or another in the many lawsuits Plaintiffs have filed. Various types of "racketeering activities" are alleged, such as mail fraud, wire fraud, extortion, interference with interstate commerce, and perjury.
From the information presented to the Court on these motions, it appears that the underlying property transactions began in 1975, when plaintiff DAMIANI, and other persons apparently residing in California ("DAMIANI's group"), began negotiations with plaintiff HERRINGTON for the purchase by DAMIANI's group of some real property HERRINGTON had acquired by inheritance sometime prior to 1975. The property consisted of some 371 acres; however, DAMIANI's group only sought to purchase a 62 acre tract for purposes of mining coal. HERRINGTON and DAMIANI's group entered into an agreement for the purchase and sale of the 62 acre tract. Defendants TOMASKY and FRIEND were retained as attorneys by HERRINGTON in connection with this proposed transfer.
This transaction was never consummated. Instead, HERRINGTON entered into negotiations with the principals of a West Virginia corporation, Met Coal & Coke, Inc. ("MET"), for the transfer of the entire 371 acres. Although subsequently subject to extensive litigation, the upshot of these negotiations was that during 1976, MET became the owner of the entire 371 acres.
Plaintiffs allege that during the 1975-1976 period another transaction occurred between HERRINGTON, on the one hand, and defendant TOMASKY, on the other. Plaintiffs allege that HERRINGTON, relying upon the trust relationship between attorney and client, loaned TOMASKY $100,000.00 in cash. In the instant case and in other actions, Plaintiffs have made various allegations about this aspect of the lawsuit, including claims that HERRINGTON was induced into entering the arrangement as a means of defrauding the Internal Revenue Service. At their core, however, Plaintiffs' allegations are that TOMASKY committed theft by fraud by submerging a proposed repayment of the $100,000.00 loan into the transaction that resulted in MET acquiring title to the 371 acre tract.
Beginning in 1977, DAMIANI and HERRINGTON were parties in a lengthy series of lawsuits. Usually one or the other was a plaintiff, and often the two men were, at least formally, on opposite sides of a case. Of the fifteen legal actions examined by this Court, ten involve issues related to the two "core" events described above, the transfer to MET of the 371 acres and the alleged $100,000 loan to TOMASKY. The remainder include malicious prosecution and abuse of process suits brought by HERRINGTON against defendants EDWARD HEFLIN and HAROLD WEISS; a habeas corpus petition by a person who apparently is HERRINGTON's son (not a party in this action) against defendant JOSEPH JANCO; a civil rights action filed by DAMIANI against defendant COSTIANES HALL; and a false arrest case HERRINGTON brought against an entity not a party to this action.
Two of these fifteen legal actions are of particular interest in the instant case: Ronald Herrington v. Michael Tomasky, L. Edward Friend, II, Jasper Petitte, Wayne Fortney, Jr., and Met Coal and Coke Co., Civil Action No. 78-C-711 ("No. 78-C-711"), filed in the Monongalia County Circuit Court in October, 1978, and Ronald Herrington v. Met Coal and Coke Company, Civil Action No. 79-C-222 ("No. 79-C-222") filed in the same court in March, 1979.
Case No. 78-C-711
Case No. 78-C-711 went to trial by jury in November, 1979, with Judge DEPOND (a defendant in the instant lawsuit) presiding. The pretrial order set out the following issues for trial:
(a) Whether or not Ronald Herrington delivered the sum of $100,000.00 to Michael Tomasky, as is evidenced by a note purportedly executed by Michael Tomasky.
(b) Did the defendants Tomasky and Friend, or either of them, make any *1413 fraudulent inducements to the damage of Ronald Herrington by reason of Herrington's conveyance of certain real estate located in Monongalia County, West Virginia, and, if so, what are the damages of Ronald Herrington?
(c) Was the deed executed by Ronald Herrington, bearing date the 28th day of June, 1976, whereby certain real estate was conveyed to Met Coal and Coke, Inc., valid? If said deed is valid, there is no issue of usury in this case and, conversely, if the deed was not valid, was the transaction between Herrington and Met Coal and Coke, Inc., usurious?
(d) Did the plaintiff Herrington breach his covenants of general warranty and quiet enjoyment by bringing this civil action against Met Coal and Coke, Inc., and, if so, what are the damages of Met Coal and Coke?
Page 3 of the October 29, 1979, Order in No. 78-C-711.
Defendant AMOS represented HERRINGTON, defendant UNDERWOOD represented TOMASKY and FRIEND, and defendant HEISKELL represented MET, PETITTE and FORTNEY.
The jury returned a verdict on November 9, 1979. It found that TOMASKY was "not guilty", that HERRINGTON was not entitled to recover any damages on the basis of fraud on the part of any of the defendants, and that the HERRINGTONMET deed was a valid deed.
Case No. 79-C-222
Case No. 79-C-222 was a declaratory relief action in which HERRINGTON sought to have the "MET deed" reformed and given the legal effect of a mortgage. The case was heard without jury by Judge STARCHER, also named as a defendant in this lawsuit. After denying each side's motion for summary judgment, Judge STARCHER held the trial beginning in October, 1980. By agreement of the parties, he took judicial notice of the entire record of No. 78-C-711 to supplement the evidence and exhibits received in the trial before him.
On May 27, 1982, Judge STARCHER issued a Memorandum Order finding that the HERRINGTON-MET agreement was a deed, with an option held by HERRINGTON to repurchase, and not a deed of trust, or mortgage. The Order further stated that since HERRINGTON failed to exercise his option to repurchase within the period allotted by the agreement, the deed operated as an absolute conveyance of the property to MET.
HERRINGTON'S petition for an appeal from the judgment in No. 78-C-711 was denied by the West Virginia Supreme Court of Appeals in September, 1980. In January and September, 1983, the same court denied two separate petitions for appeal from the judgment in No. 79-C-222. In April, 1984, the United States Supreme Court denied HERRINGTON's petition for a writ of certiorari in No. 79-C-222.
As previously mentioned, Plaintiffs were involved in numerous other lawsuits related to the transfer of the 371 acres. For example, in Shirley Herrington v. Ronald Herrington, Monongalia County Circuit Court No. 9347, SHIRLEY HERRINGTON, HERRINGTON's former wife, succeeded in having two deeds recorded by HERRINGTON declared null and void. These deeds purported to convey SHIRLEY HERRINGTON's one-half undivided interest in certain parcels of the 371 acres as a gift to HERRINGTON. SHIRLEY HERRINGTON's counsel was S.J. ANGOTTI. Both are named as defendants in the present action, as well as the presiding judge (DEPOND) and the third-party defendant's (MET) attorney, HEISKELL.
Another related case, Louis Damiani v. Michael Tomasky, L. Edward Friend, II, Continental Insurance Co. aka CNA, Ronald Herrington, Martha Patterson, Civil Action No. 77-0085-C ("No. 77-85-C"), was filed in the U.S. District Court for the Central District of California, but was promptly transferred to the Northern District of West Virginia. DAMIANI alleged in his complaint that HERRINGTON defrauded him of $50,000.00 by falsely representing that a grant deed to 121.125 acres of HERRINGTON's West Virginia real property, securing a $50,000 debt, had been properly recorded. This property was part of the 371 acres subsequently sold to MET. *1414 The complaint in No. 77-85-C included allegations that TOMASKY and FRIEND conspired with HERRINGTON to defraud DAMIANI. Similar, albeit less clear, claims are made against PATTERSON, a former friend of HERRINGTON.
HERRINGTON confessed judgment in the amount of $56,700.00. DAMIANI moved for a default judgment as to PATTERSON, but that motion was denied by the district court.
Summary judgment was entered in favor of TOMASKY, FRIEND, and their insurer on the basis of DAMIANI's admission that he had no attorney-client relationship with the individual defendants. Further, the district court relied upon the preclusive effects of the state court judgments described above. The district court's judgment was upheld on appeal by the Fourth Circuit Court of Appeals, which noted in an unpublished opinion that DAMIANI had, in effect, already pursued his fraud claims against TOMASKY and FRIEND through the state court actions on behalf of DAMIANI's closely-held corporation, PLANTATION COAL & LAND CO. Those cases, Nos. 78-C-454 and 80-C-349, were resolved in favor of the defendants.
At this point, it will suffice to note that of all the lawsuits reviewed by the Court, in only one could a plaintiff in the instant action be viewed as having been a "prevailing party", and that action bears little or no relation to the core events underlying the plaintiffs' conspiracy theories. In Ronald Herrington v. Harold Weiss, Civil No. 81-0043-N(M), U.S. District Court, Southern District of California, HERRINGTON alleged that WEISS, a jeweler who formerly resided in Monongalia County, without having reasonable or probable cause, caused an arrest warrant to be issued for HERRINGTON for issuing a worthless check. The record shows that HERRINGTON and WEISS settled out of court, with WEISS' insurer paying HERRINGTON $10,000.00, and the case was dismissed pursuant to Federal Rule of Civil Procedure 41(a). Still, WEISS is alleged to be a part of the RICO conspiracy involved in this action.
Defendants are aligned in three groups, as described in the order of April 3, 1986. Hereinafter, the use of UNDERWOOD, FORTNEY, or STARCHER will refer to all the defendants named in the April 3d order as members of their respective group, unless otherwise indicated. Similarly, unless otherwise stated, the orders as to the FORTNEY group will apply to defendant HEISKELL.
DISCUSSION
A. MOTIONS FOR SUMMARY JUDGMENT
The initial moving papers submitted by the UNDERWOOD and FORTNEY groups in support of their respective motions to dismiss included a number of exhibits. These exhibits relate to the prior litigation involving the 371 acres formerly owned by HERRINGTON. Because these previous cases appeared to involve the central issues in this action, and had reached, in some instances, determinations upon the merits of Plaintiffs' claims here, the Court chose to treat the UNDERWOOD and FORTNEY motions as motions for summary judgment. Fed.R.Civ.P. 12(b), 56. The parties did not object to this procedure. The Court set a further briefing schedule, and the parties filed additional briefs and exhibits relating to the summary judgment motions.
Counsel for the UNDERWOOD group, apparently acting as a de facto "lead counsel" for Defendants, submitted a voluminous declaration in support of the motion. This declaration contains certified copies of numerous actions previously filed by, or against, Plaintiffs. In exhaustive detail, the exhibits to the declaration cover the tortuous, and torturous, course followed by plaintiffs in their attempts to somehow reverse the sale of the 371 acres to the company owned by the FORTNEY group.
Plaintiffs' opposition to the factual submissions of Defendants was meager, consisting of declarations from each of the plaintiffs, and disjointed, isolated extracts from various transcripts, some of which were inadequately identified. After examining the materials presented by both sides, the Court found that summary judgment in *1415 favor of Defendants was appropriate pursuant to Federal Rule of Civil Procedure 56(e). Plaintiffs' response essentially "rests upon the mere allegations" of their complaint, rehashed in the form of declarations. However, in deference to Plaintiffs status as pro se litigants, the Court elected to go beyond the procedural deficiencies and weigh the question of whether triable issues of fact remained.
The summary judgment motions were based on Defendants' contentions that Plaintiffs' claims were barred by application of the doctrines of res judicata or collateral estoppel because these claims had been litigated to a final determination on the merits in previous actions. As noted above, the West Virginia actions No. 78-C-711 and 79-C-222 seem to be the keystones of Defendants' arguments. Accordingly, the motions stand or fall upon the question of whether the present claims and/or issues were fully litigated before.
The complaint is based upon the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. section 1961, et seq. ("civil RICO"). The gravamen of the complaint is that Defendants formed a wide-ranging conspiracy to injure Plaintiffs' business interests, specifically with regard to their ownership and use of the 371 acres. Plaintiffs allege that members of the conspiracy gained control of the court system of Monongalia County, West Virginia, and used this control to "defraud plaintiffs of their coal land". The requisite predicate acts are alleged to be "numerous acts of mail and wire fraud".
Case No. 78-C-711 was tried to a jury. The specific issues submitted to the jury are set out above. The jury found that TOMASKY and FRIEND (UNDERWOOD group members here) did not defraud HERRINGTON of the 371 acres, that TOMASKY was "not guilty" of defrauding HERRINGTON of $100,000.00, and that the deed executed by HERRINGTON transferring the 371 acres to the FORTNEY group's company was valid. HERRINGTON appealed this verdict through the West Virginia courts. His appeal was denied by the West Virginia Supreme Court.
The judgment of No. 78-C-711 appears to have been reinforced by that in No. 79-C-222, the declaratory relief action filed by HERRINGTON seeking reformation of the deed into a mortgage. In that action, the court considered the entire record of No. 78-C-711 plus additional evidence submitted by the parties. Contrary to the assertions of Plaintiffs, it does appear that the judge presiding over No. 79-C-222 (STARCHER) received into evidence all the materials offered by HERRINGTON before issuing his decision. Judge STARCHER rejected HERRINGTON's claims, and upheld the validity of the deed. Again, HERRINGTON's appeals were denied.
In conjunction with the other factual materials submitted in support of these summary judgment motions, the results of Nos. 78-C-711 and 79-C-222 eviscerate Plaintiffs' RICO claims. DAMIANI's claims regarding his injuries as a result of his loss of the 371 acres are derivative, arising from his alleged contract for its sale to his group with HERRINGTON. The verdicts, after trial, were that no fraud was committed in the transfer of the property. Plaintiffs may not resurrect these claims by retitling them as RICO predicate acts. The issues relating to the property transfer were decided and put to rest long ago. As to these, there are no triable issues of fact, and summary judgment must be granted to Defendants.
Plaintiffs have also alleged other injuries inflicted upon them by the purported conspirators through their "control" of the Monongalia County courts. After reviewing all the submissions by the parties, and giving Plaintiffs the benefit of all reasonable inferences, the Court could find no specific facts supporting this conspiracy theory. The Plaintiffs have had ample opportunity, in this action and in previous lawsuits, to present a factual showing of their allegations of the supposed conspiracy's pervasive and adverse influence upon the Monongalia County courts, but have not done so. Absent specific facts, this Court cannot find any basis for permitting further litigation of Plaintiffs' conclusory and unsupported claims. All the factual *1416 material before the Court negates the existence of Plaintiffs' conspiracy theory, and supports the granting of Defendants' motions.
B. MOTIONS TO DISMISS
Defendants STARCHER and GARLOW filed motions to dismiss for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3). While Plaintiffs cited a flurry of cases in opposition, the Court found the citations inapposite, as none addressed jurisdiction in a RICO context.
The initial requirement which must be met to confer personal jurisdiction in a RICO action is set out in 18 U.S.C. § 1965(a):
Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.
Plaintiffs failed to controvert the affidavits of STARCHER and GARLOW, which plainly show that these defendants do not reside, may not be found, do not have an agent, and do not transact their affairs in the Southern District of California. The focal point of Plaintiffs' claims against all defendants, including STARCHER and GARLOW, is in the Northern District of West Virginia. Neither jurisdiction nor venue as to the claims against STARCHER and GARLOW lies in San Diego. Their motions were well-taken and were accordingly granted.
C. MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT
Plaintiffs' motion for leave to file an amended complaint was heard in conjunction with Defendants' motions. The proposed amended complaint essentially repeats the allegations of the original complaint, but adds some twenty-five defendants to Plaintiffs' ever-expanding theory of a conspiracy dedicated to harming their interests.
While it is true generally that leave to amend under Rule 15(a) is liberally granted, the proviso contained in the rule is that leave shall be given when "justice so requires." The district courts retain discretion to deny leave to amend when the movants seek the amendment for improper purposes, or when undue prejudice would result to the opposing parties. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In light of the circumstances of this case, as set forth in this Memorandum, the Court concluded that an amendment would not serve the interests of justice.
In brief, as noted below, Plaintiffs' purposes in initiating this lawsuit are, at best, suspect. To allow Plaintiffs to include more defendants in their unwarranted claims would serve only to compound the costs and inconvenience incurred by the present defendants. Moreover, the Court has decided that an end must be made to Plaintiffs' incessant harassment of apparently anyone who they perceive as standing in their way. For all of the above reasons, the motion for leave to file an amended complaint was denied.
D. MOTIONS FOR INJUNCTIVE RELIEF AND SANCTIONS
The FORTNEY group brought motions for an injunction from repetitive litigation pursuant to 28 U.S.C. § 1651, and for an award of sanctions, including costs and attorneys' fees, against Plaintiffs. These motions were subsequently joined by the UNDERWOOD group, and by defendant HEISKELL. In general, the bases for these motions rest upon the record of the litigation initiated by Plaintiffs, and the inferences as to purpose and motive which Defendants argue should be drawn from that record.
1. Injunction
Three recent Ninth Circuit decisions dealing with similar factual and legal situations guide the Court's decision as to the motion for injunctive relief. In each case, a district court issued an injunction that barred a plaintiff from continuing a pattern of bringing repetitious litigation. These cases point out that the district courts possess discretionary power to issue such an injunction when it is shown that a plaintiff *1417 has repeatedly forced defendant to contest the same, or substantially the same, frivolous or previously litigated claims and issues. De Nardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 1962, 90 L.Ed.2d 648 (1986); Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1032-1036 (9th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 2919, 91 L.Ed.2d 547 (1986); Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1523-1524 (9th Cir.1983) cert. denied, 465 U.S. 1085, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984).
These three cases stress that the issuance of an injunction is not a remedy which should be used as a matter of course, but is a "last resort" to be considered when it is clear that a plaintiff cannot be dissuaded by "traditional" means from a course of conduct which severely harasses and injures a defendant.
In the earlier sections of this Memorandum, Plaintiffs' legal activities since 1975 with regard to various defendants were outlined. As noted, with one exception, the record before the Court shows that Plaintiffs have been unsuccessful. The obvious inference to be drawn from the series of lawsuits filed by Plaintiffs subsequent to the judgments and unsuccessful appeals in Nos. 78-C-711 and 79-C-222 is that they seek to harass or punish those involved in the 371 acre transfer. Along the way, they tend to lump anyone, or any entity, into the "conspiracy" which allegedly seeks to do them harm.
In the number of actions brought by Plaintiffs, and the apparent vindictive nature of these cases, this lawsuit most closely parallels the facts of the Wood case (in contrast, De Nardo involved three lawsuits over six years, and Cook dealt with three lawsuits in one year). Like Wood, the plaintiffs here lost on the merits in their early cases, but repeatedly filed against the same defendants in various forums on the same claims and issues.
In sum, the Court finds that Defendants have established that they have been subjected to repetitive and increasingly meritless litigation by these plaintiffs. Based upon their "track record", it also seems highly unlikely that Plaintiffs would be dissuaded from continuing this pattern of conduct by any means short of a court order. Accordingly, Defendants' motion for a permanent injunction from repetitive litigation is granted, under the terms and conditions set forth below.
2. Sanctions
Beyond the motion for an injunction, Defendants also seek an award of sanctions under Federal Rule of Civil Procedure 11. Reference was made in the FORTNEY group's supplemental memorandum to 28 U.S.C. § 1927 as a basis for a sanctions' award of attorneys' fees. Sanctions under section 1927, however, may be imposed only against attorneys and not parties. See, e.g., Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir.1986). In deciding this question, this Court relied instead upon Federal Rule of Civil Procedure 11.
Rule 11 mandates the imposition of sanctions where an attorney or party has signed pleadings, motions or other papers that are frivolous or without merit, or which were filed for an improper purpose, such as to harass, vex or delay an opponent or the course of the litigation. The Rule is clear: If a court finds that the papers are frivolous or interposed for an improper purpose, then the court "shall impose" sanctions, which may include costs and a reasonable attorney's fee.
a. Frivolous Papers
The Ninth Circuit has adopted the standard applicable for the award of fees to prevailing defendants in litigation under the civil rights acts to determine whether a pleading or other paper is without merit or frivolous. In Zaldivar v. City of Los Angeles, supra, 780 F.2d at 831, the court stated:
[W]e affirm that Rule 11 sanctions shall be assessed if the paper filed in district court and signed by an attorney or an unrepresented party is frivolous, legally unreasonable, or without factual foundation, even though the paper was not filed in subjective bad faith. (emphasis added). *1418 The standard adopted by the Ninth Circuit thus does not require that the litigant have acted in "subjective bad faith". The papers are to be judged by an objective standard. Id. at 831-832.
Applying this standard to the instant lawsuit, this Court finds that the legal arguments proffered by Plaintiffs are frivolous on their face. They have presented legal arguments already aired, and rejected, in numerous other lawsuits. If anything, the papers submitted by Plaintiff's are indicative of subjective bad faith.
b. Improper Purpose
Like the test for determining the merit of a party's legal argument, the Ninth Circuit has adopted an objective standard for determining whether the papers are interposed for an improper purpose. Id. at 832. The Zaldivar court stated that:
[w]ithout question, successive complaints based upon propositions of law previously rejected may constitute harassment under Rule 11.
Id. The court then elaborated upon this:
For a claim of harassment to be sustained on the basis of successive filings, there must exist an identity of parties involved in the successive claim, and a clear indication that the proposition urged in the repeat claim was resolved in the earlier one.
Id. at 834.
The Court concludes that the standard adopted by the Ninth Circuit fits the facts of the instant case like a glove. The list of defendants in the instant action reads like a well-worn litany. The litigation history recounted in previous sections of this decision underscores the fact that Plaintiffs have filed one lawsuit after another against the same parties; the only newly-named parties in any given lawsuit appear to be the court officers from the immediately preceding action.
Moreover, Plaintiffs' claims have repeatedly been rejected. Undaunted by each previous adverse ruling, the Plaintiffs have sought out a new, and which they hope will be a more favorable forum. Plaintiffs apparently refuse to take "no" for an answer.
Finally, the fact that Plaintiffs chose this District in which to file this lawsuit lends credence to the conclusion that they seek to discomfit Defendants, as Plaintiffs could not have found a forum in the contiguous 48 states that is more distant from the original West Virginia forum.
Accordingly, the Court concludes that Plaintiffs have interposed papers in this action for the improper purpose of harassing Defendants.
c. The Amount of the Sanctions
Once a court determines that a violation of Rule 11 has occurred, its mandate is clear: The court "shall impose" sanctions. These sanctions may include costs and a reasonable attorney's fee. Fed.R.Civ.P. 11.
Counsel for Defendants have submitted affidavits in support of their request for costs and attorneys' fees. See Second Supplemental Declaration of Mark S. Lee (counsel for FORTNEY Group), filed April 24, 1986; Declaration of Cynthia Purcell Garrett (counsel for UNDERWOOD Group), filed April 25, 1986; and supplemental Declaration of Michael I. Lipman (counsel for HEISKELL), filed April 25, 1986. The Court has determined that costs and attorneys' fees shall be imposed as indicated below.
In reaching the figures for each award, the Court considered the factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). In particular, as to the UNDERWOOD Group, the Court notes that their counsel undertook the task of researching Plaintiffs' litigious past and compiling the extensive documentation central to the motions for summary judgment.
Other factors considered by the Court which are pertinent to the issue of the amount of sanctions include the rates charged by counsel, which are reasonable and in line with those commonly billed in this area, the geographic separation of defense counsel and their clients and the nature *1419 of this case and the particular plaintiffs involved. A consideration of all of these factors supports granting the Defendants' requests in full.
However, an additional factor a court must consider in determining the reasonableness of an award of attorney's fees is the plaintiffs' ability to pay the sum. Matter of Yagman, 796 F.2d 1165, 1185 (9th Cir.1986). The total sum requested by the attorneys in the instant case is only about one-seventh of the "immense sum" of $293,000.00 in fees that the Yagman court found unreasonable. Nevertheless, this court feels that in light of Plaintiffs' present circumstances, and the injunction the Court has ordered, granting the requests for fees in full would serve little purpose. Accordingly, the court will adjust the fees requested by Defendants proportionately.
The court is cognizant of Plaintiffs' status as pro se litigants. In some instances, a plaintiff's pro se status might warrant a court's refusal to impose any costs or attorney's fees. See, e.g., Mitchell v. Office of Los Angeles County Superintendent of Schools, 805 F.2d 844 (9th Cir. 1986). However, Mitchell is easily distinguishable from the instant case. In Mitchell, after he had received an EEOC "probable cause" determination, the plaintiff filed a federal suit alleging employment discrimination against the Superintendent of Schools and others. After the plaintiff presented his case, the district court dismissed the action with prejudice. After the defendants had brought a motion for attorneys' fees on the ground that Mitchell had filed his suit in bad faith, the district court awarded $72,993.75 to the defendants.
The Ninth Circuit reversed the award of attorneys' fees on appeal. After first noting that "the plaintiff is the `chosen instrument of Congress' for vindication of Congressional policy," the court reasoned:
Moreover, it would certainly not serve `the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII,' Christianburg, [Garment Co. v. Equal Employment Opportunity Commission], 434 U.S. [412] at 422, 98 S.Ct. at 701 [54 L.Ed.2d 648 (1978)], to uphold an award of $72,933.75 in fees against a plaintiff like Dr. Mitchell who, in propria persona, pursues a case of the type involved here. Such an award after a trial lasting only two and one-half days would bode ill for plaintiffs pursuing more complex claims requiring more time in court for the presentation of their evidence and rebuttal of defendants' claims. The chilling effect upon civil rights plaintiffs would be disporportionate to any protection defendants might receive against the prosecution of meritless claims.
Id. at 848.
No such equitable considerations are involved in the instant law suit. Rather, this lawsuit more closely parallels the facts of Wood v. McEwen, 644 F.2d 797 (9th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1437, 71 L.Ed.2d 654 (1982), where the court awarded attorney's fees against a pro se litigant after he had filed thirty-seven actions that repeatedly raised the same claims, and had "become burdensome and costly to the litigants." Id. at 802. See also Cook v. Spillman, 806 F.2d 948 (9th Cir.1986).
Accordingly, as to the motions for an injunction against repetitive litigation and for sanctions, the Court orders:
1. INJUNCTION. That the plaintiffs herein, the Executrix of LOUIS J. DAMIANI and RONALD J. HERRINGTON, formerly dba PLANTATION COAL & LAND CO., their agents, representatives, assigns, heirs, employees, servants, and attorneys, be, and hereby are, permanently enjoined and restrained from filing, bringing, or otherwise instigating, any legal or equitable action, of any type, in any court or administrative agency in or of the United States, or any State of the United States, which is based upon the transfer of 371 acres, more or less, of real property located in the Cass District, Monongalia County, West Virginia, from RONALD HERRINGTON to Met Coal and Coke, Inc., by deed dated June 28, 1976, against any of these moving defendants. *1420 It is further ordered that these plaintiffs, their agents, representatives, assigns, heirs, employees, servants, and attorneys, shall not file, bring, or instigate any legal or equitable action against any of these moving defendants, their attorneys, or Court personnel based upon the factual and legal issues involved in this action, including any reasonable attempts by Defendants to recover the attorneys' fees and costs awarded against Plaintiffs. It is further ordered that Plaintiffs shall not file, bring, or instigate any legal or equitable action based upon the above-described acts or issues against any person, corporation, organization, or agency, without the express permission of this Court, or of a District Court of the United States having jurisdiction over the proposed action.
2. SANCTIONS. That pursuant to the provisions of Federal Rule of Civil Procedure 11, the plaintiffs herein, LOUIS J. DAMIANI and RONALD HERRINGTON, formerly dba PLANTATION COAL & LAND CO., pay, jointly and severally, as sanctions, the sums indicated to the following defendants, through their attorneys of record:
(a) As to defendants WAYNE FORTNEY, SR., WAYNE FORTNEY, JR., JASPER PETITTE and JOHN PETITTE, the plaintiffs shall pay the sum of $2,479.31;
(b) As to defendant EDGAR F. HEISKELL, the plaintiffs shall pay the sum of $581.94;
(c) As to defendants HERBERT G. UNDERWOOD, WILLIS O. SHAY, SHIRLEY HERRINGTON, EDWARD A. HEFLIN, MARTHA PATTERSON (also known as MARTHA MARTIN), L. EDWARD FRIEND, II, JOSEPH KUDLA, MICHAEL TOMASKY, PAUL DAPNICKY, ROBERT DINSMORE, HAROLD WEISS, S.J. ANGOTT, JOSEPH JANCO and CHARLES J. WHISTON, the plaintiffs shall pay the sum of $4,438.75.
3. SERVICE. That the U.S. Marshal serve a copy of this Memorandum Decision and Order upon the Plaintiffs in this action: Lenore Damiani, Executrix of Louis J. Damiani, and Ronald Herrington.
IT IS SO ORDERED.
NOTES
[1] Plaintiff DAMIANI died in July, 1986. Although no formal papers have been submitted, it is the court's understanding that Mr. DAMIANI's executrix is now prosecuting this lawsuit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265541/ | 163 Cal.App.4th 1342 (2008)
SUSAN PATERNO, Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
AMPERSAND PUBLISHING, Real Party in Interest.
No. G038555.
Court of Appeals of California, Fourth District, Division Three.
June 13, 2008.
*1345 Holland & Knight, Charles D. Tobin, Judith F. Bonilla and Shelley G. Hurwitz for Petitioner.
No appearance for Respondent.
Dreier Stein & Kahan, Stanton L. Stein, Samuel R. Pryor, Lauren Sudar and Jesse M. Leff for Real Party in Interest.
OPINION
ARONSON, J.
Here we consider whether a plaintiff in a defamation action subject to the constitutional malice standard established the requisite "good cause" (Code Civ. Proc., § 425.16, subd. (g)) to conduct discovery, thereby delaying resolution of the defendant's pending anti-SLAPP motion.[1] We conclude that where, as here, the plaintiff fails to demonstrate the allegedly defamatory statements are provably false factual assertionswhich the plaintiff must do to establish the necessary probability of prevailing on its defamation claimno good cause exists to conduct discovery concerning *1346 actual malice. We therefore grant the writ petition, and direct the trial court to vacate its discovery order and enter a new order denying plaintiff's discovery motion.
I
Factual and Procedural Background
Plaintiff and real party in interest Ampersand Publishing (Ampersand) is the corporate owner of the Santa Barbara News-Press. Wendy McCaw, its principal, publishes the newspaper. Defendant and petitioner Susan Paterno directs the journalism program at Chapman University in Orange, California, and is a senior writer for the American Journalism Review, a magazine published by the University of Maryland.
Paterno wrote an article, "Santa Barbara Smackdown," for the magazine's December 2006 issue. The article offered a "behind-the-scenes look" at the "turmoil" engulfing the News-Press, including the dismissal or resignation of more than half of its 50-member newsroom, leaving others to work in a "climate of fear and paranoia ripped from the pages of Kafka's `The Trial ...'...." The article described McCaw's efforts to "silence" criticism by filing or threatening to file libel lawsuits.
In preparing for the article, Paterno spoke with more than a dozen former employees, and reviewed court records and documents. Ampersand refused permission to contact current employees; its lawyers informed her that such efforts "are by no means protected activities" and were "actionable." Ampersand suggested instead that she submit written questions to its public relations and crisis management consultant, which would be "reviewed by the appropriate News-Press agents and employees, including Wendy McCaw, and ... answered when appropriate." Paterno declined the offer.
Ampersand filed a libel and trade disparagement lawsuit against Paterno for falsely implying that McCaw's personal agenda improperly influenced the newspaper's reporting. To the contrary, the complaint alleges, "Ampersand management (including ... McCaw) has sought to end bias at the paper...." (Original italics.) The complaint alleged that Paterno's article contained 32 libelous statements.[2]
*1347 Paterno filed a timely special motion to strike under the anti-SLAPP statute. To prevail on the motion, Paterno had to make a threshold showing that her conduct occurred in furtherance of the constitutional right of free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(4).) The burden then would shift to Ampersand to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).)
Ampersand conceded Paterno's statements arose from constitutionally protected activity, thereby meeting the first prong of the anti-SLAPP statute. But Ampersand claimed its evidence demonstrated a probability it would prevail on the merits, thwarting the motion to strike.
Ampersand filed a motion for expedited discovery pursuant to section 425.16, subdivision (g).[3] Ampersand sought to depose Paterno and her editorial assistant Hallie Falquet to obtain any documents "reflect[ing], relat[ing] or refer[ring]" to their preparation of the article. It also sought documents from the American Journalism Review relating to the article. Ampersand claimed this "limited" discovery was necessary to show Paterno's subjective state of mind regarding the truth or falsity of her statements. According to the motion, "There is a great deal of information with respect to this incident that Paterno did not include in her libelous account, and Ampersand is entitled to discovery with respect to what Paterno knew about the incident, and what information she deliberately chose not to include in her story so as to paint a false picture."
Ampersand's attorney, Stanton Stein, attached a one-page declaration to the motion authenticating Ampersand's proposed document requests and deposition notices. His declaration discussed neither the relevancy nor the need for the discovery, and did not describe whether Ampersand made any efforts to obtain the requested information through other means.
At the hearing on the motions, the trial court concluded Ampersand had not met its burden to show a probability of success on 29 of the 32 libelous statements because "[m]ost appear as a matter of law to be opinion, or [Ampersand] fails to establish prima facie falsity." The trial court, however, found that Ampersand met its burden of proof on 3 of the 32 statements, and subsequently issued a formal order granting Ampersand leave to conduct discovery on whether Paterno made the following three statements with actual malice:
*1348 (1) that orders from "on high" forced former News-Press editor Jerry Roberts to "kill" a story about a drunk driving sentence imposed on the editorial page editor, Travis Armstrong;
(2) that the News-Press pursued a workplace restraining order against former employee Michael Todd, costing him approximately $7,000 in attorney fees, before dropping the case in October 2006; and,
(3) that Ampersand "slashed" benefits and overtime pay for newsroom employees over a two-year period.
The court continued the hearing on Paterno's anti-SLAPP motion to allow Ampersand to depose Paterno and Falquet, and obtain the subpoenaed documents.
Paterno filed a petition for writ of mandate with this court, contending all the statements were true, and that the third statement amounted to nonactionable opinion. We issued a temporary stay and an order to show cause. Ampersand filed a verified return, and Paterno filed a reply.
II
DISCUSSION
A. The Anti-SLAPP Statute's "Good Cause" Requirement for Discovery
Ampersand contends relevance is the sole criterion to determine whether a defamation plaintiff may delay a hearing on an anti-SLAPP motion to conduct discovery on actual malice. According to Ampersand, "The trial court's ruling is consistent with the anti-SLAPP statute and the case law, which establishes that courts should exercise their discretion liberally when considering a request for discovery regarding the defendant's state of mind in defamation cases." Having demonstrated to the trial court's satisfaction the relevance of the requested discovery on the issue of malice, Ampersand argues it satisfied the anti-SLAPP statute's "good cause" requirement for discovery. (§ 425.16, subd. (g).)
(1) Relevancy, however, is not the only hurdle a defamation plaintiff must overcome to establish good cause for discovery, given the purpose of anti-SLAPP legislation. To "encourage continued participation in matters of public significance" (§ 425.16, subd. (a)), the anti-SLAPP statute "protect[s] defendants from having to expend resources defending against frivolous SLAPP suits unless and until a plaintiff establishes the viability of its claim by a prima facie showing" (Britts v. Superior Court (2006) 145 Cal.App.4th *1349 1112, 1124 [52 Cal.Rptr.3d 185] (Britts); see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247 [83 Cal.Rptr.2d 677] (Sipple) ["We conclude that to allow appellant such extensive discovery would subvert the intent of the anti-SLAPP legislation."]). "Indeed, `[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.'" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193 [25 Cal.Rptr.3d 298, 106 P.3d 958], original italics.)
(2) The anti-SLAPP statute reinforces the self-executing protections of the First Amendment. In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 [72 Cal.Rptr.3d 231], the court directed a trial court to quash a subpoena to discover the identity of an anonymous Internet poster. To protect First Amendment expression, Krinsky required the discovery proponent to make a prima facie showing the message board statement was libelous. (See Civ. Code, § 44 ["libel" defined as defamation effected in writing].) "Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism." (Krinsky, at p. 1171.)
The constitutional malice standard under New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280 [11 L.Ed.2d 686, 84 S.Ct. 710], protects freedom of expression by requiring public figure plaintiffs who bring defamation actions to plead and prove falsehood, and to further establish actual malice by clear and convincing evidence. (See Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71 [55 Cal.Rptr.3d 600] (Christian Research).) "To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of fact that is `provably false.'" (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048 [72 Cal.Rptr.3d 210] (Nygård), see Civ. Code, § 45, italics added [defamation requires a "false and unprivileged publication ... [that] exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation"].)
Accordingly, plaintiffs who bring defamation actions subject to the constitutional malice standard cannot show good cause for discovery on the question of actual malice without making a prima facie showing that the defendant's published statements contain provably false factual assertions. Trial judges should refrain from ordering "unnecessary, expensive and burdensome" discovery proceedings "if it appears from the SLAPP motion there are significant issues as to falsity or publicationissues which the plaintiff should be able to establish without discovery...." (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162 [12 Cal.Rptr.3d 506] (Garment Workers) [no "good cause" for discovery under § 425.16, subd. (g), on issue of actual malice because trial court failed to determine whether defendant's allegedly defamatory statements were false].)
*1350 Our Supreme Court explored, in Mitchell v. Superior Court (1984) 37 Cal.3d 268 [208 Cal.Rptr. 152, 690 P.2d 625] (Mitchell), the First Amendment underpinnings for the rule that a plaintiff must demonstrate falsity before obtaining invasive and expensive discovery concerning the defendant's allegedly malicious mental state. In Mitchell, the Supreme Court issued a writ of prohibition to block a plaintiff's efforts to engage in wide-ranging discovery from a couple who furnished the allegedly defamatory information to Reader's Digest magazine. The plaintiff, Synanon, "wanted to review all documents available to the [couple] in order to prove that [they] selectively relied on some documentary evidence and ignored other evidence more favorable to Synanon." (Id. at p. 273.) To safeguard the freedom of expression enshrined in the First Amendment, the high court concluded a plaintiff in such circumstances must "make a prima facie showing that the alleged defamatory statements are false before requiring disclosure." (37 Cal.3d at p. 283.) The court reasoned, "`[t]he falsity of the ... charges ... should be drawn into question and established as a jury issue before discovery is compelled,'" because "`to routinely grant motions seeking compulsory disclosure ... without first inquiring into the substance of a libel allegation would utterly emasculate ... fundamental principles....'" (Ibid.)
In analogous situations involving other fundamental constitutional rights, such as the right to privacy, courts have required discovery proponents to demonstrate a "compelling public interest" for discovery which is "directly relevant" to the litigation. "Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery." (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387 [64 Cal.Rptr.2d 731] [trial court in a wrongful termination case abused its discretion in ordering former employee to answer questions relating to her marital relationship].) "Because the requested material is constitutionally protected, the ordinary yardstick for discoverability, i.e., that the information sought may lead to relevant evidence, is inapplicable." (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 392 [97 Cal.Rptr.2d 12]; see also Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 369 [99 Cal.Rptr.2d 627] [appellate court reversed discovery order requiring staff members of family planning nonprofit organization to reveal home addresses and telephone numbers to anti-abortion litigants; discovery proponents "have not demonstrated a need for the discovery which would justify an invasion of the substantial privacy interests involved"]; Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 802 [76 Cal.Rptr.2d 727], italics added [proponent in sexual molestation case failed to show "good cause" that discovery was both "relevant and necessary" to determine the cause of plaintiffs' emotional distress].)
Ampersand misconstrues dicta in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868 [44 Cal.Rptr.2d 46] *1351 (Lafayette Morehouse), an early anti-SLAPP case, for the proposition that trial courts should "liberally" allow pre-SLAPP discovery in defamation cases. The court in Lafayette Morehouse affirmed the dismissal of a libel action against a newspaper because the anti-SLAPP statute applied to news reporting activities. The court hinted, in dicta, that trial courts should "liberally" exercise their discretion to authorize reasonable discovery "when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees." (Lafayette Morehouse, at p. 868, italics added.)
(3) The Lafayette Morehouse decision "predate[s] the 1997 amendment requiring a broad interpretation of section 425.16." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478 [102 Cal.Rptr.2d 205].) Accordingly, we join the courts that have limited the reach of Lafayette Morehouse's language. (Damon, at p. 478; see also Nygård, supra, 159 Cal.App.4th at pp. 1037-1038 [holding that Lafayette Morehouse applied too narrow a definition of "public forum" in the context of newspaper and magazine articles].)
Here, as we explain below, Ampersand has not introduced sufficient evidence to establish a prima facie case of falsity or unprivileged statements. Consequently, the trial court erred in permitting discovery concerning Paterno's actual malice. Absent the prerequisite of provably false facts (Nygård, supra, 159 Cal.App.4th at pp. 1048-1049; Garment Workers, supra, 117 Cal.App.4th at p. 1162), no good cause supported the discovery order, which we therefore countermand.[4]
B. Paterno Had No Constitutional Obligation to Include in Her Article Ampersand's Explanation Concerning Its Decision Not to Run a Story About Travis Armstrong's Drunk Driving Sentence
The trial court permitted discovery into whether Paterno harbored actual malice when her article stated that (1) former News-Press editor Jerry Roberts "was ordered to kill a story about the editorial page editor's drunk-driving *1352 sentence" and (2) when reporter Dawn Hobbs returned from court with a report on Armstrong's drunk driving sentence, "[O]rders `from on high' forced Roberts to kill Hobbs' story, says then Deputy Managing Editor Murphy...."
Ampersand never contested the literal truth of these statements. McCaw herself wrote a letter to the Society of Professional Journalists stating that management decided to "kill" the story about the drunk driving sentence imposed on Travis Armstrong, the newspaper's editorial page editor.
Ampersand nevertheless argues, and the trial court apparently agreed, that Paterno's article could be deemed false because she "omitted material facts available to her...." Ampersand contends Paterno's statements about killing a story, while true, are actionable because the "`gist and sting'" of the article "was that the story was killed because the publishers were directing the news content to protect favored employees, such as Armstrong. This is not true."
Ampersand specifically takes Paterno to task for failing to mention that the newspaper had previously published an article concerning Armstrong's arrest for drunk driving on May 7, 2006. In a declaration filed in Ampersand's anti-SLAPP opposition, Armstrong described his complaints to senior management about the unfairness of this story given Roberts's "open animosity" to him. As part of Ampersand's opposition, copublisher Arthur Von Wiesenberger declared that he directed Roberts not to publish any further stories about Armstrong's DUI (driving under the influence) sentence because "it appeared unethical for Roberts to use his position as editor to carry out what seemed to be a vendetta against Armstrong." Reduced to essentials, this defamation claim arises out of Paterno's failure to include Ampersand's side of the story.
(4) This novel theory of liability, which Paterno describes as "defamation by omissions," fails. Media defendants are liable for calculated falsehoods, not for their failure to achieve some undefined level of objectivity. "Slanted reporting, however, does not by itself constitute malice." (Christian Research, supra, 148 Cal.App.4th at p. 88.) Paterno's truthful statements enjoy First Amendment protection and, in publishing them, she is entitled to a "reasonable degree of flexibility in [the] choice of language...." (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 262 [208 Cal.Rptr. 137, 690 P.2d 610] (Reader's Digest).)
Reader's Digest illustrates the leeway guaranteed to the press under the First Amendment's mandate. The case grew out of the same core facts as Mitchell, but involved the reporters instead of their sources. In Reader's Digest, the California Supreme Court issued a writ of mandate to compel *1353 dismissal of Synanon's defamation lawsuit against the reporters for their description of a long-running battle between Synanon and the publishers of a small town newspaper in Marin County. "We recognize a potential chilling effect from protracted litigation as well as a public interest in resolving defamation cases promptly." (Reader's Digest, supra, 37 Cal.3d at p. 252.) The court held that the magazine had no duty "to write an objective account" of the dispute or to tell Synanon's side of the story. (Id. at p. 259.) "The Reader's Digest could properly tell the story of how the Mitchells won the Pulitzer Prize, and in that story reflect the Mitchells' views on Synanon, without also presenting Synanon's side of the picture." (Ibid.)
As Reader's Digest holds, Paterno had no constitutional obligation to incorporate Ampersand's press releases or its talking points into her magazine article. There is no constitutional mandate requiring the press to adopt a "he said, she said" style of reporting. Indeed, the actual malice standard is not measured by what an objectively reasonable reporter would have written. "Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger; clearly such writing is typically less than objective in its presentation." (Reader's Digest, supra, 37 Cal.3d at p. 259.)
If Paterno's statements require further explanation, Ampersand, McCaw, its lawyers, public relations experts, and crisis managers, are free to provide them. Ampersand, as the publisher of Santa Barbara's largest circulation daily newspaper, has ample "`access to the channels of effective communication.' " (Christian Research, supra, 148 Cal.App.4th at p. 92.) "The marketplace of ideas, not the tort system, is the means by which our society evaluates those opinions." (Grillo v. Smith (1983) 144 Cal.App.3d 868, 872 [193 Cal.Rptr. 414].) It is ironic that Ampersand, itself a newspaper publisher, seeks to weaken legal protections that are intended to secure the role of the press in a free society. Newspapers and publishers, who regularly face libel litigation, were intended to be one of the "`prime beneficiaries'" of the anti-SLAPP legislation. (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 863.)
C. Paterno Had No Constitutional Obligation to Provide Ampersand's Explanation Why It Dropped Its Efforts to Obtain a Restraining Order
Ampersand claimed Paterno made a false statement in her article concerning a dispute between former business editor Michael Todd and Ana Fuentes, a part-time photographer. The incident arose when Todd made what he considered to be a joke to Fuentes about hitting her with his car, but Fuentes viewed the statement as a threat. According to the article, "The News-Press *1354 pursued a restraining order against Todd in connection with the Fuentes episode in July, costing him close to $7,000 in attorney's fees, he says, before dropping the case in late October."
Ampersand does not dispute the truth of the article's assertions that Ampersand abandoned its request for a temporary restraining order and that Todd said it cost him $7,000 in attorney fees. As with the claim about killing the drunk driving story, Ampersand contends Paterno's article implies "provably false" facts by "omitting key facts" from the story. "Specifically, Paterno omits from her Article the material fact that Ampersand no longer had standing to pursue the action after Ana Fuentes left the [newspaper's] employ.... By omitting this fact, and by stating that the case was dropped after Michael Todd was forced to incur substantial legal fees, Paterno implies the false factual assertions that the case was filed for an improper purpose, and that the News-Press arbitrarily decided to drop the case after forcing Mr. Todd to incur substantial legal fees."
Paterno's report on Ampersand's dismissal of the Todd complaint is absolutely privileged as a matter of law as a fair report of a statement made in an official judicial proceeding. (Civ. Code, § 47, subd. (d).) There is nothing inaccurate about the reference. Ampersand's demand for "context" therefore fails as a basis for alleging the falsity necessary for defamation and, consequently, also fails to establish the requisite good cause for discovery.
In Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551 [1 Cal.Rptr.3d 245], we affirmed an order dismissing a SLAPP complaint against a newspaper for libel. The plaintiffs claimed that the newspaper failed to accurately report why they entered into a federal consent decree after federal regulators filed a complaint alleging the plaintiffs promoted an illegal stock manipulation scheme. Although "the publication concerning legal proceedings is privileged as long as the substance of the proceedings is described accurately" (id. at p. 1558), courts will not engage in a "hermeneutical exercise" (id. at p. 1559) dissecting the reporter's efforts in a legalistic postmortem. Otherwise, litigation-averse journalists would be reduced to reporting "word-for-word quotations from legal documents." (Id. at pp. 1559-1560.) "It is not necessary to go through each of plaintiffs' parsing of words and sentences in the articles published by defendants to demonstrate that their quarrel with the language of the articles involves a level of exegesis beyond the ken of the average reader of newspaper articles. The articles fairly describe the gist of plaintiffs' misconduct." (Id. at p. 1560.)
Similarly, in Sipple, supra, 71 Cal.App.4th 226, a political consultant alleged that a magazine falsely reported a custody dispute where he was charged with domestic violence. The consultant claimed the gist and sting of *1355 the article was false because the author omitted material facts showing the unreliability of the charges. The court held that the article was privileged, and the anti-SLAPP statute applied "to `afford the utmost freedom of access to the courts without fear of being subsequently harassed by derivative tort actions' [citation]...." (Id. at p. 241.) "Accordingly, we conclude that the article was a fair and true report. It was not spun out of whole cloth, but was supported by the court testimony...." (Id. at p. 246, italics added.)
Here, Ampersand wants Paterno to go further than accurately conveying what happened in court. It demands Paterno place this legal proceeding in "context" by including what it considers are the "key facts"even if they are outside the court record. There is no such requirement. As the case law amply demonstrates, journalists may simply report the facts of proceedings without providing an explanation of those facts. Here, Paterno's article conveyed the "substance" of the legal proceedings involving Todd. Because the litigation privilege applies, no basis exists to explore whether Paterno's statement was misleading. Consequently, the predicate for Ampersand's good cause showing for discovery is absent.
D. Paterno's Description of the Newspaper's "Slashing" of Employee Benefits Is Not False, but Rather Constitutionally Acceptable "Literary License"
The third allegedly false statement arises from the article's reference to claims by former staffers that the newspaper "slashed" their employee benefits and overtime pay. The article states, "In the next two years, though, [McCaw's] largely unexplained directives led to confusion, turmoil and turnover, with benefits and overtime pay slashed, newsroom decisions challenged and executives fired or forced to resign after refusing to do her bidding, say former reporters, editors and executives." (Italics added.)
Ampersand's own brief concedes the newspaper's 401(k) plan "was indeed eliminated...." But, Ampersand continues, this admitted fact, left unexplained, would convey the "false and defamatory" "impression" that Ampersand is an "arbitrary and abusive employer." Yolanda Apodaca, Ampersand's human resources director, declared Ampersand's overtime policy had not changed, contrary to Paterno's report. Thus, "[t]o the extent the newsroom at the News-Press was overstaffed from time to time, employees naturally took less overtime as there is less need for overtime when there are more employees available to do the work." She further declared that no employees complained about the overtime policy to her.
We do not see how the article's "slashed" statement warrants discovery against Paterno under the anti-SLAPP's statute's good cause requirement. *1356 The article clearly explains that these claims about "slashed" benefits represent the views of the newspaper's former employees. As our Supreme Court held in the Synanon case, journalists are within their constitutionally protected rights to write an article describing the perspective of only one side of a controversy. (Reader's Digest, supra, 37 Cal.3d at p. 262.)
(5) Equally important, Paterno's decision to publish former employees' opinions may not be tested for actual malice because the opinions are not provably false. Opinions that present only an individual's personal conclusions and do not imply a provably false assertion of fact are nonactionable; indeed, such opinions are the lifeblood of public discussion promoted by the First Amendment, under which speakers remain free to offer competing opinions based upon their independent evaluations of the facts. (Nygård, supra, 159 Cal.App.4th at pp. 1048-1049, discussing Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 [111 L.Ed.2d 11, 10 S.Ct. 2695] (Milkovich).) "Thus, after Milkovich, the question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. [Citations.] Milkovich did not change the rule that satirical, hyperbolic, imaginative, or figurative statements are protected because `the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.' [¶] Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide." (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 [10 Cal.Rptr.3d 429].)
Numerous post-Milkovich cases emphasize the distinctions between provably false statements of fact, which are actionable, and loose and figurative expressions of opinion, which are constitutionally protected under a totality of the circumstances test. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572 [51 Cal.Rptr.2d 891] [no liability for athletic director's statement that college basketball players felt "beaten down" by former coach's harsh methods]; Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1404 [88 Cal.Rptr.2d 843] [no liability for "classic rhetorical hyperbole" about "`creepazoid attorney'" and "`loser wannabe lawyer'"]; Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720 [275 Cal.Rptr. 494] [no liability for student newspaper's assertion that teacher was "worst" teacher in school and a "babbler"].)
Nygård illustrates the distinction. There, a magazine published an interview with a former employee who described his "horrible" work experience with a prominent businessman. The employee claimed he endured around-the-clock pestering and "`"slaved ... without a break"'" for his employer. (Nygård, *1357 supra, 159 Cal.App.4th at p. 1033.) The court affirmed a special motion to strike because the employer failed to make a prima facie showing that any of the published statements conveyed provably false factual imputations. The court concluded the employee's statements "are nonactionable statements of opinion, rather than verifiable statements of fact.... Instead, `"horrible"' and a `"horror"' colorfully convey [the employee's] subjective belief that working for the company was unpleasant. His subjective reaction does not contain `provable facts,' and no reasonable reader could understand these words as statements of actual working conditions." (Id. at p. 1052.)
Applying these principles here, Paterno's description of the News-Press as having "slashed" employee benefits is not actionable because it is protected opinion and does not imply a provably false assertion of fact. While Apodaca opined that the News-Press actually had "improved" certain employee benefits by offering the possibility for merit salary increases, it remains a matter of opinion whether this offsets the newspaper's decision to discontinue its program matching the employees' 401(k) contributions.
III
CONCLUSION
(6) Ampersand has failed to show good cause for discovery delaying Paterno's anti-SLAPP motion. Forcing Paterno to submit to discovery in the absence of good cause jeopardizes the protections afforded by the anti-SLAPP statute against harassing litigation. To avoid this irreparable harm, we grant the petition and issue a writ to allow the anti-SLAPP statute to serve its intended purposes. (Britts, supra, 145 Cal.App.4th at pp. 1129-1130; Garment Workers, supra, 117 Cal.App.4th 1156.)
(7) Paterno asks for her attorney fees in preparing this writ petition. Under subdivision (c) of the anti-SLAPP statute, successful litigants who prevail on a special motion to strike are entitled to attorney fees as a matter of right "to compensate ... for the expense of responding to a SLAPP suit." (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22 [45 Cal.Rptr.3d 633].) The trial court should consider Paterno's request for attorney fees in connenction with Paterno's special motion to strike.
*1358 Let a peremptory writ of mandate issue directing respondent superior court to vacate its discovery order of April 24, 2007, granting Ampersand's motion to conduct limited discovery and to issue a new and different order denying the motion. Paterno is awarded her costs in this proceeding.
Rylaarsdam, Acting P. J., and Ikola, J., concurred.
NOTES
[1] A plethora of appellate litigation has made the SLAPP acronym a household wordat least in legal households. SLAPP stands for strategic lawsuit against public participation, and is codified in Code of Civil Procedure section 425.16. All statutory references are to the Code of Civil Procedure, unless otherwise noted.
[2] While the complaint identifies 33 libelous statements, two of them (relating to killing a story about Travis Armstrong's drunk driving sentence) are virtually indistinguishable and will be treated as the same.
[3] Section 425.16, subdivision (g) provides: "All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision."
[4] We note Ampersand's discovery motion not only failed to show the existence of provably false facts, but also failed to address the antecedent, threshold issue of "whether the information the plaintiff seeks to obtain through formal discovery proceedings is readily available from other sources or can be obtained through informal discovery." (Garment Workers, supra, 117 Cal.App.4th at p. 1162.) Attorney Stein's declaration documented no attempts to informally contact, for example, Hallie Falquet, Paterno's research assistant, who was not named as a defendant in the lawsuit. Ampersand apparently interviewed no witnesses concerning malice, tracked down no speaking engagements, academic conferences, or other iterations of Paterno's piece, nor otherwise conducted any investigation before attempting to inflict the discovery process on Paterno. These omissions alone required denial of Ampersand's motion. (Ibid.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265547/ | 657 F.Supp. 840 (1987)
UNITED STATES of America, Plaintiff,
v.
Jesus PADRON and Marcelino Rubio, Defendants.
Crim. A. No. 87-12 MMS.
United States District Court, D. Delaware.
March 20, 1987.
*841 William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, Asst. U.S. Atty., Dept. of Justice, Wilmington, Del., for plaintiff.
David S. Lank, of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, Del., for defendant Rubio.
Josey W. Ingersoll and Bruce L. Silverstein, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant Padron.
MURRAY M. SCHWARTZ, Chief Judge.
Defendants Jesus Padron ("Padron") and Marcelino Rubio ("Rubio") are charged with violating 21 U.S.C. § 841, possession of marijuana with intent to sell. Rubio is also charged with one count of possession of cocaine with intent to sell under 21 U.S.C. § 841. Defendants have filed motions to suppress the marijuana discovered in the search of the automobile, and Rubio moves to suppress his subsequent statements and the cocaine found in his car after the arrest as fruits of an illegal search. The Court held an evidentiary hearing on March 6. The Court will deny defendants' motions for the reasons discussed below.
*842 FACTS
On January 14, 1987, defendants were travelling north on Interstate 95 ("I-95") from Miami, Florida, with an ostensible destination of Boston, Massachusetts, in Rubio's car. Padron was driving throughout this episode, with Rubio in the passenger seat. After defendants left the toll booth on I-95 just inside the Delaware border, Corporal Michael Wilbur ("Cpl. Wilbur") of the Delaware State Police began to follow. The officer stated his suspicions were aroused by defendants' car, but he gave no specific reason for tracking it.[1] Cpl. Wilbur drove an unmarked car, but was in uniform, and defendants testified they noticed him following almost immediately. The officer stated that defendants were driving below the speed limit, an unusual occurrence on I-95, and he tailed them for approximately 11 miles. He also noted the car had a Florida license plate, but he did not run a check on the number.
Defendants exited I-95 on to Route 13, a four lane highway, and proceeded south for eight miles, still followed by Cpl. Wilbur. The officer stated the defendants' car continued under the speed limit, causing traffic to back up on the two southbound lanes, and cars were forced to pass the defendants. Padron testified that he drove between 50 and 55 miles per hour, and kept up with traffic at all times. While travelling down Route 13, Cpl. Wilbur radioed Trooper Albert Homiak to request assistance. Trooper Homiak proceeded south on Route 13 and approached defendants' vehicle from the rear, where he followed them for approximately two miles; Cpl. Wilbur was directly in front of the defendants at this point. Upon travelling eight miles south on Route 13, both officers testified that defendants' car began weaving within its lane, and then while negotiating a curve moved three feet into the left lane, nearly striking a passing truck. Padron testified that he maintained a steady course throughout and never left his lane. Trooper Homiak turned on his emergency lights and the three automobiles pulled over to the right shoulder.
After stopping, Rubio exited the passenger side and approached Trooper Homiak, who was behind defendants' car. They met between the vehicles, where Rubio gave Trooper Homiak the car registration and they had a brief conversation. Rubio stated that he was looking for Route 301, which he believed was a shortcut, and that his destination was Boston. The two men then went to sit in Trooper Homiak's car as it was exceptionally cold. Trooper Homiak then asked Rubio the name of the driver, who Rubio could only identify initially as "Jesus," and then he remembered the last name. Trooper Homiak testified that he looked at the registration and knew Rubio owned the vehicle.
During this exchange, Cpl. Wilbur approached the driver's side and spoke with Padron through a partially open window. Padron handed over his driver's license and stated he did not have the registration. Cpl. Wilbur then asked Padron to come to his vehicle. When Padron opened the door, Cpl. Wilbur testified he smelled a "very moderately strong" odor emanating from the car that he immediately identified as raw marijuana. Tr. at 10. He stated that from the strength of the odor he believed there was "a considerable amount" in the car. Padron and Rubio testified they smoke cigarettes and cigars, respectively, and that the car had a strong tobacco odor from the smoke and ashtrays.
*843 Once inside his car, Cpl. Wilbur questioned Padron about his destination and the name of the passenger, who Padron could only identify as "Ivan," which is Rubio's common name. Cpl. Wilbur testified that upon asking if he could search the car, Padron "told me it was not his vehicle, and I explained to him that he is the operator of the vehicle and in charge of that vehicle." Tr. at 11. Padron testified that he also told Cpl. Wilbur that "the other man" owned the automobile. Padron then agreed to the search, at which point Cpl. Wilbur filled out a standard Delaware State Police consent form in Spanish, which Padron reviewed cursorily before signing.[2]
Cpl. Wilbur then met briefly with Trooper Homiak next to defendants' car to compare their stories. Cpl. Wilbur stated that Padron had signed a consent form, at which point Trooper Homiak secured his car by removing the keys and storing his weapons. He then informed Rubio that the car would be searched, and Rubio did not respond. Trooper Homiak did not, however, inform Cpl. Wilbur that Rubio owned the vehicle. The defendants' car, a 1982 Mustang, was a hatchback without a separate trunk area. While Trooper Homiak was at his car, Cpl. Wilbur opened the driver's door and opened a leather bag in the back seat. He immediately discovered a ziplock bag containing marijuana. The officers then placed the defendants under arrest and resumed the search. Trooper Homiak opened the hatchback door and searched the other leather bags, finding additional caches of marijuana. He then radioed for a tow truck to remove the vehicle, and the officers transported the defendants separately to Troop 6. Prior to departing the scene, Trooper Homiak testified that Rubio made two unsolicited statements: 1) "Nice job." 2) "There is forty-one pounds in there," while gesturing toward the car. While driving to Troop 6, Rubio stated, "I guess I'll get about ten years for this." Trooper Homiak testified that these statements were wholly unsolicited, and he neither initiated the conversation nor questioned defendant. Both officers testified that the defendants were never apprised of their Miranda rights, before or after the arrest.[3] Upon his return to Troop 6, Trooper Homiak continued the search, discovering additional marijuana and one kilo of cocaine hidden behind a speaker.
ANALYSIS
The government argues that Padron, as only a passenger in Rubio's car, does not have standing to challenge the validity of the search. Defendants make three arguments: 1) the stop was pretextual as the officers had no objective basis for finding a traffic violation; 2) Padron's consent was invalid because he was not the owner of the vehicle and he did not act voluntarily; 3) there was no factual basis for Cpl. Wilbur smelling raw marijuana to provide probable cause to search the vehicle. The Court will consider these arguments seriatim.
I. Standing
The Supreme Court established the parameters for determining whether a defendant can challenge a search or seizure under the Fourth Amendment in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The fundamental inquiry is "whether the disputed search or seizure has infringed an interest of the defendant" that is constitutionally protected. Id. at 140, 99 S.Ct. at 429. The court must ascertain whether the defendant has a "legitimate expectation of privacy in the invaded place." Id. at 143, 99 S.Ct. at 430 (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). A search outside defendant's zone of privacy cannot be challenged because "Fourth Amendment rights are personal rights, which, like some other constitutional *844 rights, may not be vicariously asserted." Rakas, 439 U.S. at 133-34, 99 S.Ct. at 425. Defendant bears the burden of proving he had a legitimate expectation of privacy in the area searched by Cpl. Wilbur and Trooper Homiak. Id. at 130 n. 1, 99 S.Ct. at 424 n. 1. The Court must look at the totality of the circumstances to determine whether Padron had a privacy interest in Rubio's automobile, and the scope of that interest.
Padron's lack of an ownership interest in the car does not necessarily prevent him from having standing. A number of courts have held that where a defendant can prove the owner granted permission to occupy and operate the vehicle, that is sufficient to create a legitimate expectation of privacy. United States v. Rose, 731 F.2d 1337, 1343 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984); United States v. Williams, 714 F.2d 777, 779 n. 1 (8th Cir.1983); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981); United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979). Rubio testified he invited Padron to accompany him on the trip and, as is apparent from Rubio's presence, expressly authorized Padron to operate the car. There are clear indicia that Padron had a reasonable expectation of privacy in the vehicle, in that from their departure from Miami the previous day until the stop the defendants spent virtually all of their time in the car, including eating and sleeping there.
The more troublesome issue is the scope of Padron's expectation of privacy. The officers discovered the incriminating evidence in four pieces of luggage stored in the rear area of the car. Padron testified that the only items he brought were a backpack and jacket, which were not among the items searched or seized. Further, in response to the counsel's question, "Were you aware that there was anything in the car?" he said "No." Tr. at 101-102. Padron has denied having any proprietary interest in the luggage or knowledge of the contraband's presence.
The Supreme Court has held that an ownership interest in the object of the search is one factor in determining whether an expectation of privacy exists. Rawlings v. Kentucky, 448 U.S. 98, 105-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980). Padron does not assert ownership of Rubio's luggage, and has not introduced evidence to show he had any other possessory interest strong enough to generate a personal expectation of privacy in the bags. See Government of Virgin Islands v. Williams, 739 F.2d 936, 939 (3d Cir.1984). Padron's sole interest is that Rubio's luggage was in an area in which he had a legitimate expectation of privacy. That alone is insufficient to permit him to challenge the search. United States v. McGrath, 613 F.2d 361, 365 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Padron cannot, therefore, vicariously assert Rubio's Fourth Amendment right to challenge the search of the luggage.
II. The Stop
Defendants argue Cpl. Wilbur and Trooper Homiak pulled them over as a pretext to permit a search of the car, and that there was no objective basis on which to effect a traffic stop. The Supreme court has held that traffic stops are "more analogous to a so-called `Terry stop' than to a formal arrest." Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). The stop must be based on a reasonable suspicion, United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), and the court makes an objective assessment of the officer's action. Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985). Two recent Circuit Court cases, United States v. Hawkins, 811 F.2d 210 (3d Cir.1987) ("Hawkins"), and United States v. Smith, 799 F.2d 704 (11th Cir.1986) ("Smith"), have extensively analyzed the question of pretextual stops in relation to alleged Fourth Amendment illegal searches. The Court will review *845 those cases to ascertain the governing principles.
In Hawkins, two officers followed the defendant from a suspected drug location where they had observed several persons entering a house and conducting brief transactions. At 212. The officers tailed the vehicle for several miles, observing it commit a number of traffic violations. Id. Once the defendant stopped, the officers approached and observed him drop a gun on the seat and cover it. Id. At the suppression hearing, the officers testified they detained the suspects "in order to conduct an investigation of the alleged traffic violations." Id. The District Court rejected that basis for the stop, but found the officers had a reasonable suspicion that a narcotics violation had occurred. Id. at 212-13.
The Third Circuit Court of Appeals affirmed, stating that "the legality of a stop must be judged by the objective factors known to the seizing officer rather than by the justifications articulated by them." Id. at 213 (Emphasis added). It noted that an officer's subjective motivations do not otherwise affect the analysis of whether a valid basis existed for a seizure. The objective facts in Hawkins were the reputation of the drug location, the officers' observations of transactions, and the actions of the occupants of the car. The Court of Appeals held, "[D]espite the courts' general disapproval of police officers' resort to pretext, the outcome of suppression motions has generally depended on objective factors.... We conclude that the fact that a pretext was given does not render invalid an otherwise constitutional search." Id. at 215.[4]
In Smith, an officer saw two defendants drive past who matched the DEA drug courier profile. 799 F.2d at 706. The officer followed them for a mile and a half, observing it weave within its lane. At the suppression hearing, he testified he intended to make an investigatory stop on the basis of the courier profile, not because the car had weaved. Id. After the stop, the officer summoned a "drug dog" that indicated the presence of contraband. The vehicle was then searched and drugs discovered. Id. The District Court found that any alleged traffic violation was only a pretext for the stop, and the Eleventh Circuit Court of Appeals affirmed that holding.[5] The Court of Appeals stated the proper test for reviewing the officer's action is "whether a reasonable officer would have made the seizure in the absence of illegitimate motivation." Id. at 708 (Emphasis in original). The question, therefore, is whether the stop was "objectively reasonable." Id. at 709. The Court of Appeals found the traffic stop for weaving a pretext, and because no other reasonable basis for the seizure existed, held the search unconstitutional. Id. at 711-12.[6]
Both Hawkins and Smith find the governing principle to be the presence of objective factors that create a reasonable suspicion to stop the defendant considered apart from a particular officer's statement of the basis for the seizure. The results in the two decisions can be reconciled by considering how the Courts of Appeals analyzed those objective factors in the context of a particular stop. In Smith, the Court rejected the drug courier profile and found the traffic stop as unsupported by objective facts, while Hawkins found a sufficient *846 objective basis in the officers' observations and knowledge prior to the traffic violations to permit a stop. In considering Smith, the Hawkins Court stated, "The situation in this case, where there was a reasonable objective basis for the stop, is distinguishable from those cases where the police, having no valid basis for a stop or arrest, relied on a pretext to justify their actions. See, e.g., United States v. Smith, 799 F.2d 704 (11th Cir.1986)...." At 215. The Third Circuit Court of Appeals found that "it is unnecessary for us to consider whether the officers' observations of a traffic violation would alone have justified the stop," id. at 213, n. 4, the very circumstance presented in Smith and this case.
This Court must make the initial determination of whether an objective basis existed for Cpl. Wilbur and Trooper Homiak to stop the defendants. If unsupported by objective facts, the stop was illegal as a pretext. The government presents no evidence beyond the alleged traffic violation for the stop, and Cpl. Wilbur's testimony indicates he followed the car for 19 miles on an unspecified "hunch," which cannot without more provide a reasonable suspicion to stop the defendants. A necessary aspect of this analysis will be weighing the credibility of the witnesses, as the two sides disagree on whether a traffic violation occurred.
The defendants were cited under 21 Del.C. § 4176 for operating the "vehicle in a careless or imprudent manner, or without regard for road, weather and traffic conditions then existing." The primary basis for stopping the car was the weaving in its lane and crossing over into the next lane, nearly striking another vehicle. The Court credits the testimony of Cpl. Wilbur and Trooper Homiak that they observed the violation, and both were close enough to have seen it in sufficient detail to find a violation. The Court also credits Cpl. Wilbur's testimony that the vehicle's slow pace caused traffic to become congested on Route 13, a four lane road (two lanes in each direction) especially susceptible to traffic blockages that pose a danger to motorists. Cpl. Wilbur's testimony regarding defendants' speed on I-95 is discounted, however, and the Court has not considered it in determining whether there were objective factors supporting the stop. The careless driving provision is broad, and given the defendants' acts, there was a sufficient basis to warrant effecting a traffic stop. See Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979) (probable cause arising from violation necessary to stop car).
Defendants argue strenuously that Padron had driven nearly 19 miles without a traffic violation, and the extreme distance over which Cpl. Wilbur followed the defendants demonstrates the stop was a pretext to permit a search. There are two flaws in defendants' argument. First, the duration of the tail is immaterial on whether, at the moment of the stop, objective facts existed that created a reasonable suspicion of a traffic violation. Police are permitted, even encouraged to act on their suspicions so long as they do not violate a person's rights. See, e.g., United States v. Sharpe, 470 U.S. 675, 677, 105 S.Ct. 1568, 1570-1571, 84 L.Ed.2d 605 (officer followed defendants for 20 miles based on suspicious act). Second, Cpl. Wilbur's subjective intent is not directly relevant to the existence of an objective basis for the stop. Hawkins, at 213-14; Smith, 799 F.2d at 708-09.
The Court finds the officers' testimony credible, and rejects the defendants' testimony concerning the acts leading to the stop. Therefore, an objective basis existed that a traffic violation occurred, and the officers had probable cause to effect a traffic stop.
III. Consent
The Supreme Court recognizes that a person can consent to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The burden of proof, by a preponderance of the evidence, rests with the government to demonstrate consent was given freely and voluntarily. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. *847 1788, 1791, 20 L.Ed.2d 797 (1968). The power to consent is not limited to the defendant, but may be given by "a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). In Matlock, the court delineated the meaning of "common authority" as "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.
The government makes the anomalous argument that Padron had the authority, as the operator of the car, to consent to the search but, because he does not own the car, he has no standing to challenge the search. The issue of authority to consent is related to a defendant's sharing access or control of the searched area, i.e., the scope of his reasonable expectation of privacy. On the facts of this case, Padron's privacy interest would be coterminus with his authority to consent because both interests are derived from Rubio's having granted him a possessory right in the car.
The Court has held Padron's legitimate expectation of privacy did not extend to Rubio's luggage. There is no evidence that Padron had access to or control over the containers searched or that Rubio assumed the risk of an inspection by placing the bags in close proximity to Padron. Moreover, prior decisions recognize that third-party consent may not cover every possible object or enclosed area. See United States v. Block, 590 F.2d 535, 541 (4th Cir.1978) ("authority to consent to search of a general area ... cannot be thought automatically to extend to the interiors of every enclosed space capable of search within the car."); United States v. Gilley, 608 F.Supp. 1065, 1068 (S.D.Ga.1985) (guests in house "may have privacy interests in specific property which cannot be waived by a third party's consent to a search of the general premises."). The government has failed to introduce evidence to demonstrate that Padron possessed sufficient authority, aside from driving the vehicle, to validly consent to a search of Rubio's luggage.
The government may seek to rely on Padron's apparent authority to consent to a search of all items in the car, and Cpl. Wilbur's good faith belief that as the driver Padron possessed the necessary authority. Courts recognize that an officer's reasonable, albeit mistaken belief in a third party's power to consent should not require suppression because the deterrent rationale of the exclusionary rule is not advanced by excluding otherwise probative evidence seized in good faith. See Riley v. Gray, 674 F.2d 522, 528 (6th Cir.), cert. denied, 459 U.S. 948, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982); United States v. Sledge, 650 F.2d 1075, 1080-81 (9th Cir.1981). As the Sixth Circuit Court of Appeals noted in Riley v. Gray, however, that belief must be reasonable under the circumstances. 674 F.2d at 529.
The facts demonstrate there was no reasonable basis to believe Padron could authorize a search. Cpl. Wilbur testified that Padron specifically stated he was not the owner of the vehicle, a fact the officer rather blithely ignored. Cpl. Wilbur knew or should have known then that Padron's authority to consent was at least questionable. At the same time, and only a few feet away, Trooper Homiak knew Rubio was the car's owner. The officers met briefly before beginning the search, at which point Cpl. Wilbur stated Padron had consented. Each officer had independent, reasonable bases to doubt the efficacy of Padron's consent, yet neither pursued the matter.
In considering instances where a person waives a constitutional right, and especially where the waiver is effected by a third party, the Court must scrutinize the government's actions closely. In this case, the officers had ample opportunity to engage in further questioning without endangering themselves or their investigation. Moreover, at least one officer knew a suspect *848 with a superior privacy interest was present, which makes the validity of the consent even less certain. See United States v. Impink, 728 F.2d 1228, 1234 (9th Cir.1984). The officers' failure to inquire into Padron's authority or seek Rubio's consent was unreasonable. To hold otherwise would condone, even encourage the police to avoid inquiries into factual circumstances in order to ensure "good faith." Riley v. Gray, 674 F.2d at 529.
The Court finds that, under the standards for third-party consent enunciated in Matlock, the government cannot rely on Padron's authority, actual or apparent, to consent to the search of Rubio's luggage.[7]
IV. Probable Cause to Search
Courts have long recognized an automobile exception to the warrant requirement, permitting a search where the officer has probable cause. See Chambers v. Maroney, 399 U.S. 42, 49-51, 90 S.Ct. 1975, 1980-1981, 26 L.Ed.2d 419 (1970) (discussing history of automobile exception). One basis for probable cause is an officer's first-hand sense impressions. In Johnson v. United States, the Supreme Court stated, "If the presence of odors is testified to before a magistrate and ... it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character." 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). A number of courts have held that the smelling of marijuana by an experienced observer provides probable cause to engage in a warrantless search of an automobile. See United States v. Lopez, 777 F.2d 543 (10th Cir. 1985); United States v. Haley, 669 F.2d 201 (4th Cir.), cert. denied, 457 U.S. 1117, 102 S.Ct. 2928, 73 L.Ed.2d 1329 (1982); United States v. Rivera, 595 F.2d 1095 (5th Cir.1979); United States v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir.1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978). Although the Third Circuit Court of Appeals has not considered this issue, the Court believes precedent overwhelmingly favors the position that marijuana odor can provide probable cause to search. Cf. Government of Virgin Islands v. Williams, 739 F.2d 936, 939 (3d Cir.1984) (existence of probable cause justifies warrantless car search).
Cpl. Wilbur testified that when Padron opened the driver's door he smelled a "very moderately strong" odor of raw marijuana. Padron testified the windows were closed during the trip because of the cold, which would permit the marijuana odor to build up prior to the stop. Tr. at 122-23. Cpl. Wilbur also testified he had received training in identifying the smells of controlled substances, including marijuana. Id. at 18-19. He stated that he can distinguish the odor of marijuana from tobacco, if a sufficient quantity of the contraband is present. The officer's experience and expertise is one part of the analysis to determine whether sufficient objective facts exist to provide probable cause. United States v. Sweeney, 688 F.2d 1131 (7th Cir. 1982).
In Illinois v. Gates, the Supreme Court counselled that the totality of the circumstances must be reviewed to determine whether probable cause exists. 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). The Court credits Cpl. Wilbur's testimony that he smelled raw marijuana, and the strength of the odor connoted a substantial amount in the automobile. In addition, the Court finds that the officer had the necessary training and expertise to fairly identify the smell and distinguish the peculiar marijuana odor from any tobacco residue. Defendants argue that it was objectively impossible to smell the raw marijuana because it was enclosed in plastic ziplocked bags, surrounded by coffee grounds, and packed in *849 leather luggage. There is no evidence in the record that the marijuana was concealed in coffee, and the inference that a person could not smell raw marijuana in plastic bags has not been proven beyond defendants' bald assertion.
Upon reviewing the totality of the circumstances, the Court finds that Cpl. Wilbur had probable cause to search the vehicle, including the luggage in the rear area.
CONCLUSION
In light of the foregoing analysis, the Court will deny defendants' motions to suppress.
NOTES
[1] There have been vehicles that I have followed for a number of miles until they come to a stop, gotten to their residence or whatever. I just felt I wanted to stop and I followed them until they have committed a violation.
Q. You were aware of the fact it had a Florida license plate the entire time you were following the car?
A. I knew it had a Florida plate.
Q. Did you know what the license was at the time you were following the car?
A. Did I know exactly what it was?
Q. Yes.
A. No. I just knew it was a Florida license plate.
Q. Was that why you were following the car for 19 miles?
A. I felt there was something suspicious about the vehicle.
Transcript of March 6, 1987 Suppression Hearing at 50-51 ("Tr.")
[2] The entire conversation between Padron and Cpl. Wilbur was in English. Padron, a Cuban, has resided in this country since 1980 and testified he comprehended fully the interrogation.
[3] Rubio does not argue that his statements should be suppressed based on the officer's failure to give Miranda. His only argument is the statements are the tainted product of an illegal search and seizure.
[4] The Court of Appeals' rationale focused on the policies underlying the exclusionary rule. The fact an officer's testimony exhibits a pretextual basis for a stop when an independent, constitutional ground existed that the officer could successfully have testified on should not result in suppressing evidence. "The exclusionary rule was designed to deter unconstitutional conduct, not perjury." At 215.
[5] The Court of Appeals found the drug carrier profile, standing alone, insufficient to furnish reasonable suspicion for a stop. 799 F.2d at 707 n. 3. The Court vacated and remanded the lower court's denial of the motion to suppress.
[6] The Court of Appeals noted that "[w]e need not now decide when, if ever, a stop for probable cause resulting from an observed traffic violation might be invalid as pretextual...." 799 F.2d at 709, 710 n. 9. It is not clear how a stop based on probable cause could at the same time be pretextual, in that a pretext means there was no probable cause based on objective factors. The terms are mutually exclusive for purposes of determining the validity of a stop.
[7] Defendants also argue that Padron's consent was not voluntary under the totality of the circumstances. They assert that, once Cpl. Wilbur smelled the marijuana in the car, he had probable cause to arrest and should have advised defendant of his Miranda rights prior to seeking the consent to search. In light of the Court's disposition of this issue favorably to the defendants, it is unnecessary to consider the voluntariness question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265469/ | 200 N.J. Super. 229 (1985)
491 A.2d 37
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
OTTAVIO NOVEMBRINO, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued October 10, 1984.
Remanded October 19, 1984.
Submitted March 12, 1985.
Decided April 11, 1985.
*231 Before Judges ANTELL,[1] J.H. COLEMAN and SIMPSON.
Susan B. Gyss, Assistant Prosecutor, argued the cause for appellant (Harold J. Ruvoldt, Jr., Prosecutor of Hudson County, attorney; Susan B. Gyss on the brief).
Joseph Charles argued the cause for respondent (Ashley and Charles, attorneys; Joseph Charles of counsel and on the letter brief.
The opinion of the court was delivered by J.H. COLEMAN, J.A.D.
The novel issue raised on this appeal is whether New Jersey should adopt a good faith exception to the exclusionary rule where evidence is seized pursuant to a search warrant issued without probable cause. On April 9, 1984, the Law Division ordered suppression of evidence seized on June 2, 1983 because probable cause to issue the warrant had not been established. We now affirm that determination. Subsequent to the entry of the suppression order, a good faith exception to the Fourth *232 Amendment exclusionary rule was created on July 5, 1984, by United States v. Leon, 468 U.S. ___, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The State urges reversal of the suppression order based on the good faith exception. We hold that N.J. Const. (1947) Art. I, ¶ 7 precludes a good faith exception to the exclusionary rule where probable cause is not established. Hence, the order of suppression is affirmed.
Defendant was charged under Hudson County Indictment No. 1075-83 with possession of cocaine, phentormine, Diazepam, hashish and marijuana on June 2, 1983, contrary to N.J.S.A. 24:21-20a(1) and (4) and possession of cocaine, phentormine and Diazepam with intent to distribute on the same date, contrary to N.J.S.A. 24:21-19a(1). A motion to suppress evidence pursuant to R. 3:5-7 was filed. Defendant argued that the search warrant relied upon by the State lacked probable cause and was issued after the evidence had been seized. The Law Division judge chose not to rule on whether the warrant was issued after the seizure. Instead, he ordered suppression of the evidence because the affidavit relied upon for issuance of the warrant failed to establish probable cause. We granted the State leave to appeal and remanded the matter for a determination of whether the seizure occurred before the warrant was issued. The remand hearing was conducted on November 14 and 15, 1984. At that hearing it was decided that the warrant was issued before the seizure. We now affirm that finding; the record contains sufficient credible evidence to support that determination. State v. Johnson, 42 N.J. 146 (1964).
On this appeal, the State argues that the affidavit of Det. Higgins established probable cause to believe defendant was illegally dealing in controlled dangerous substances from his Gulf Gasoline Station, located at 827 Broadway, Bayonne, New Jersey. That affidavit provided:
2. The facts tending to establish grounds for issuance of a Search Warrant are as follows:
I received information from an informant who has proven reliable in several investigations (with the information he supplied), that `Otto' above description, *233 is engaged in the illegal sales of cocaine and marijuana. My informant stated that Otto usually keeps the drugs in his gas station at above location. He (informant) also stated that he witnessed `Otto' dealing drugs from his gas station. I, along with Det. Ralph Scianni, conducted a surveillance of subject and his station on Thurs., 6/2/83, between the hours of 3:00 PM and 7:00 PM, and observed Otto meeting with several persons, after leaving his station and making what we believed to be drug transactions. During the surveillance, we observed one person making a transaction with Otto and checked on his vehicle and called the narcotics squad to inquire on his relationship with drugs. They told us that said person has been arrested for cocaine and other violations and they felt that Otto and the other person are involved in drug activity. From the information received from our informant and from our observations, we do feel that a search of Otto's gas station should be conducted for illegal contraband. We checked on ownership of the station and it belongs to Otto who we have presently in headquarters on this investigation. Otto was advised of his rights and refused a search of his station but appeared to be very nervous.
Based on the foregoing affidavit, the Municipal Court Judge of the Bayonne Municipal Court issued a warrant to search the Gulf Gasoline Station and the person of the defendant for evidence of violations of Title 24.
I
PROBABLE CAUSE TO SEARCH
In determining whether the affidavit established probable cause, the Law Division judge stated that he considered the meaning of probable cause as defined in State v. Macri, 39 N.J. 250 (1963). He concluded the affidavit in question was defective under both the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), as well as the totality of the circumstances standard announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).[2] The judge correctly observed that the affidavit contains no information about Det. Higgins' education, *234 training or experience in the investigation of illegal drug activities. He found this was Det. Higgins' first affidavit which did not state (1) when the information was received from the informant, (2) sufficient information to establish past reliability of the informant, (3) facts which would permit the issuing magistrate to determine the basis for the informant's conclusion that he "witnessed Otto dealing drugs from his gas station," and (4) any facts obtained during the surveillance tending to support the conclusion that defendant was dealing drugs from his gas station. Hence, the Law Division judge found the affidavit did not establish probable cause and ordered suppression of the evidence seized.
We agree with the Law Division judge that probable cause was not established. Probable cause is defined as a well grounded suspicion that a crime has been or is being committed. State v. Burnett, 42 N.J. 377, 387 (1964). Here, "the common and specialized experience and work-a-day knowledge of policemen," State v. Contursi, 44 N.J. 422, 431 (1965), could not be considered in determining whether probable cause was established because none was stated in the affidavit. In deciding whether probable cause existed, the Law Division judge utilized a common sense approach in analyzing the totality of the circumstances described in the affidavit. In so doing, he followed the standard approved in State v. Contursi, supra; State v. Schumann, 156 N.J. Super. 563, 566 (App.Div. 1978) and later approved by Illinois v. Gates, supra and reinforced by Massachusetts v. Upton, 466 U.S. ___, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). The judge concluded that his common sense evaluation of the affidavit and the totality of circumstances presented therein persuaded him to conclude that the informant's veracity, reliability and basis of knowledge had not been established. He further concluded that the results of the surveillance reported in the affidavit only corroborated innocent details rather than alleged criminal conduct. He regarded the two-pronged test of Aguilar and Spinelli as being intertwined *235 with the determination of probable cause in light of the totality of the circumstances.
In view of our careful study of the record in the light of the controlling legal principles, we are also persuaded that probable cause was not established. The sum total of the informant's tip consisted of his assertion that he had witnessed defendant dealing drugs from the gas station without giving any indication of whether the information was stale, State v. Blaurock, 143 N.J. Super. 476, 479 (App.Div. 1976), or just how he concluded defendant was dealing drugs. State v. Fariello, 71 N.J. 552 (1976). That information could be months old and he could have seen a person giving defendant money for petroleum products sold at the gas station, given the nature of that business. State v. Sims, 75 N.J. 337, 350 (1978).
Even more significantly, the affidavit contained mere conclusions with respect to the surveillance which was intended to independently verify what the informant reported. Illinois v. Gates, 462 U.S. at 240, 103 S.Ct. at 2333, 76 L.Ed.2d at 550. The State concedes, and we think correctly, that defendant's nervousness after apprehension was immaterial. The affidavit does not state a single fact to support the conclusion that defendant was engaged in "drug transactions." None of the details of the so called drug transaction were given. The fact that one of the persons who visited the gas station had been arrested for cocaine and other drug violations does not suggest drug transactions were taking place absent more factual details. Former drug offenders as well as saints are entitled to buy lawful goods and services from a Gulf gasoline station. We appreciate the fact that Det. Higgins made his affidavit in haste, but defendant was already in police custody. Also, the issuing judge was called away from his family on a festive occasion to review the application in the parking lot of the City Line Shopping Plaza. Gates nevertheless requires a reviewing court to conscientiously review the sufficiency of the affidavit to insure that wholly conclusory assertions are not countenanced. Proper performance of the role of a neutral and *236 detached magistrate requires more than "a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. at 2332, 76 L.Ed.2d at 549.
The affidavit here involved simply revealed that a police informant concluded for unknown reasons that defendant was a drug dealer, that a person previously arrested for possession of cocaine was seen at defendant's gas station engaged in some unspecified activities which caused a detective, whose education, training and experiences are unknown, to conclude that criminal activities in the form of violations of Title 24 were taking place at the gas station. The totality of the circumstances spelled out in the affidavit failed to contain a single objective fact tending to engender a "well grounded suspicion" that a crime was being committed. State v. Burnett, 42 N.J. at 387. We conclude, therefore, that probable cause was not established.
II
THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE
The State next argues that if probable cause was not established, the evidence seized nonetheless should not be suppressed. It urges that the good faith exception to the exclusionary rule enunciated in United States v. Leon, supra, should be retroactively applied to this case. The facts in Leon were very similar to the facts in this case. There, evidence was seized with a warrant later found to have been issued without probable cause. The Court in Leon held that the good faith reliance on the issuing judge's approval of the warrant precluded exclusion of the evidence. The government was allowed to use the evidence seized pursuant to the warrant in its case in chief where there was objectively reasonable reliance on the warrant. Here, defendant argues that the Leon good faith exception should not be applied because (1) it is contrary to the requirements of N.J. Const. (1947), Art. I, ¶ 7, (2) retroactive *237 application of Leon is not permissible, (3) the issuing judge abandoned his detached and neutral role, and (4) the applicant for the warrant did not act in good faith when submitting the affidavit for the warrant. We are satisfied that if Leon is to be followed in this State, it should also be retroactively applied. See State v. Nash, 64 N.J. 464, 469-470 (1974). We are also persuaded from our careful study of the record that Det. Higgins did not knowingly or recklessly submit a false affidavit, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978), and that he objectively and reasonably relied on the warrant. Even though the issuing judicial officer was mistaken in his assessment of probable cause, we are not convinced that he abandoned his detached and neutral role.
A. PROBABLE CAUSE IS AN INDISPENSABLE REQUIREMENT.
Our Supreme Court has determined that N.J. Const. (1947), Art. I, ¶ 7, which provides "... no warrant shall issue except upon probable cause, ..." requires probable cause to conduct a nonconsensual search for evidence of a crime, whether with or without a warrant. State v. Young, 87 N.J. 132, 141-143 (1981). See also State v. Patino, 83 N.J. 1, 7-10 (1980); State v. Ercolano, 79 N.J. 25, 42 (1979); State v. Sims, 75 N.J. 337, 351 (1978); State v. Waltz, 61 N.J. 83, 87 (1972). One possible exception to this rule is where the nonconsensual search for evidence is conducted as an incident to a lawful arrest. There, the need to protect the arresting officer and the probable cause for the arrest justify the search within a permissible scope. State v. Young, supra, 87 N.J. at 142 n. 4. Noncompliance with the probable cause requirement is not a mere sophisticated technicality which can be regarded as insubstantial or a slight departure from our State constitutional and procedural requirements. See State v. Valencia, 93 N.J. 126, 134 (1983). Cf. State v. Bisaccia, 58 N.J. 586 (1971); State v. Daniels, 46 N.J. 428 (1966); State v. Pointer, 135 N.J. Super. 472, 478 (App.Div. 1975), certif. den. 69 N.J. 79 (1975); State v. *238 Gillman, 113 N.J. Super. 302 (App.Div. 1971). Probable cause is the single most important consideration when determining whether an individual's privacy has been invaded unlawfully. Many exceptions to the warrant requirement have developed over the years, but no exception to the requirement for probable cause before conducting a nonconsensual search for evidence of a crime under N.J. Const. (1947), Art. I, ¶ 7 has yet been recognized. It remains the absolute essential to any reasonable search and seizure. Conversely, a nonconsensual search for evidence of a crime which is conducted without probable cause is unreasonable.
B. THE EXCLUSIONARY RULE ITS PURPOSE AND FUNCTION.
New Jersey had no exclusionary rule prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which made the exclusionary rule announced by a unanimous court in the landmark case of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), applicable to state criminal cases. Our State Supreme Court first applied the exclusionary rule on June 4, 1962 in State v. Smith, 37 N.J. 481 (1962), cert. den 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963). In the years following Smith, our Supreme Court has not only applied the exclusionary rule to Fourth Amendment violations, but has held that violations of N.J. Const. (1947), Art. I, ¶ 7 also required suppression of evidence.
Two fundamental purposes for the exclusionary rule are (1) "to compel respect for the constitutional guaranty [of no unreasonable search or seizure] in the only effectively available way by removing the incentive to disregard it," and (2) to uphold "the imperative of judicial integrity." Elkins v. United States, 364 U.S. 206, 217, 222, 80 S.Ct. 1437, 1444, 1447, 4 L.Ed.2d 1669, 1677, 1680 (1960). But there is still another consideration or reason for the exclusionary rule. It also serves to restore the victims of the unconstitutional searches and seizures *239 to the position they were in before the illegality occurred. See Schroeder, "Restoring the Status Quo Ante: The Fourth Amendment Exclusionary Rule as a Compensating Device," 51 Geo.Wash.L.Rev. 633, 636 (1983). The admission of illegally seized evidence in a criminal trial "has the necessary effect of legitimizing the conduct which produced the evidence, while the application of the exclusionary rule withholds the constitutional imprimatur." Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, 901 (1968).
C. DEPARTURE FROM FEDERAL CONSTITUTIONAL INTERPRETATIONS.
It is now well settled that in matters of unreasonable searches and seizures, state courts are free, and indeed even encouraged, to look to the state Constitution to afford greater protection of the privacy interest of the public than afforded under parallel provisions of the federal Constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 78-81, 100 S.Ct. 2035, 2039-2040, 64 L.Ed.2d 741, 750-752 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (1975); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); State v. Bruzzese, 94 N.J. 210, 216 (1983); State v. Hunt, 91 N.J. 338, 359 (1982); Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489 (1977); "Developments In The Law-Interpretation of State Constitutional Rights," 95 Harv.L.Rev. 1324, 1361 (1982); Pollock, "The New Jersey Supreme Court's Interpretation and Application of the State Constitution," 15 Rut.L.J. 491 (1984).
There are certain dangers inherent in state courts relying too heavily on state Constitutions to afford greater protection to its citizens. The erosion of national constitutional doctrine is one illustration. We are therefore mindful of the desirability of uniformity between the state and federal courts in the interpretation of parallel constitutional provisions. Divergent interpretations *240 of parallel constitutional provisions should be avoided unless guidelines such as those discussed in State v. Hunt, 91 N.J. at 358-368, justify a departure. There, Justice Handler in a concurring opinion identified the criteria which should be followed when deciding whether to resort to the State Constitution to vindicate rights neglected or curtailed under the federal Constitution. Many of the same guidelines were applied in State v. Williams, 93 N.J. 39, 52-59 (1983).
One such criterion is the structural difference between the Fourth Amendment and N.J. Const. (1947), Art. I, ¶ 7. The Fourth Amendment is part of a general grant of enumerated powers to the federal government. See Gangemi v. Berry, 25 N.J. 1, 7-9 (1957). In contrast, Article I, paragraph 7 of the New Jersey Constitution serves to limit the sovereign power which inheres in the people. State v. Schmid, 84 N.J. 535, 558 (1980). Hence, the language of N.J. Const. (1947), Art. I, ¶ 7 is an explicit affirmation of fundamental rights of privacy; it is a guarantee of those rights and not simply a restriction on them. See Smith v. Penta, 81 N.J. 65, 74 (1979); Gangemi v. Berry, supra.
Another standard outlined by Justice Handler in Hunt that is implicated here is the preexisting body of State law which affords greater protection of personal rights than those guaranteed by the federal Constitution. See State v. Hunt, 91 N.J. at 359; Right to Choose v. Byrne, 91 N.J. 287, 299-301 (1982); State v. Schmid, 84 N.J. at 553-560. In this connection, our State Supreme Court has made clear its intention to afford persons in this State greater protection against unreasonable searches and seizures than afforded by the United States Supreme Court's interpretation of the Fourth Amendment. Notably, in State v. Alston, 88 N.J. 211, 226-230 (1981), Article I, paragraph 7 of our State Constitution was construed to afford standing to more citizens to challenge the prosecutorial use of evidence obtained in violation of the Fourth Amendment than afforded by the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. *241 Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The Court in Alston relied upon four basic reasons for not following federal precedents: (1) the United States Supreme Court decisions did not afford sufficient protection against unreasonable searches and seizures, (2) the vagueness of the federal standard which could result in an infringement of the right to privacy, (3) State and federal precedents supporting its interpretation of the constitution, and (4) the Court's obligation to make rules affecting the administration of criminal justice. While the responsibility for the latter reposes exclusively with the Supreme Court, N.J. Const. (1947), Art. VI, § 2, ¶ 3, we perceive no reason why we cannot apply the other three reasons to support our determination. Hence, we read Alston as standing for the proposition that persons alleging an unlawful violation of the right of privacy must be afforded a meaningful opportunity to vindicate unreasonable searches and seizures. As Justice Clifford observed earlier, the motion to suppress "is the mechanism specifically designed to afford a defendant his most significant opportunity to participate in a process which vindicates the constitutionally declared right against an unlawful search." State v. Fariello, 71 N.J. at 559. Standing to seek redress is a hollow right unless a meaningful remedy is also available.
State v. Johnson, 68 N.J. 349, 353-354 (1975) is another example of where our Supreme Court diverged from established Fourth Amendment law. In Johnson, the substantive elements of a consent search were defined differently under our State Constitution. There, it was held that knowledge of the right to refuse consent to search is a prerequisite under N.J. Const. (1947), Art. I, ¶ 7, to validate a consensual search even though it is not required for Fourth Amendment purposes as interpreted by Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Following the leadership of Alston and Johnson, we are persuaded that the New Jersey constitutional guarantee affords greater protection from unreasonable *242 searches and seizures than the parallel provision of the federal Constitution.
A third standard suggested by Justice Handler in Hunt which guides us today is this State's history and tradition of affording remedies to individuals whose constitutional rights have been violated. State v. Hunt, 91 N.J. at 366. This history and tradition were vividly traced in Schmid, supra, which stated:
The guarantees of our State Constitution have been found to extend to a panoply of rights deemed to be most essential to both the quality of individual life and the preservation of personal liberty. See, e.g., Levine v. Institutions & Agencies Dept. of N.J., 84 N.J. 234, 244, 249, 258 (1980) (right to an education); id. at 273 (Pashman, J., dissenting); State v. Ercolano, 79 N.J. 25, 30, 34 (1979) (privacy based freedom from `unreasonable searches and seizures'); State v. Slockbower, 79 N.J. 1, 4 n. 2 (1979) (same); State v. Tropea, 78 N.J. 309, 313, n. 2 (1978) (double jeopardy and fundamental fairness); Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978) (equal protection); State v. Saunders, 75 N.J. 200, 216-217 (1977) (right of sexual privacy); id. at 224-225 (Schreiber, J., concurring); In re Quinlan, 70 N.J. 10, 19, 40-41, 51 (1976), cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976) (right of choice to terminate life support systems as aspect of right of privacy); State v. Johnson, supra, 68 N.J. at 353 (freedom from `unreasonable searches and seizures'); State v. Gregory, 66 N.J. 510, 513-514 (1975) (double jeopardy and fundamental fairness); Robinson v. Cahill, 62 N.J. 473, 482, 509 (1973), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973) (Robinson I) (right to an education); Worden v. Mercer County Bd. of Elections, 61 N.J. 325, 345-346 (1972) (right to vote); Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 191, 195-196 (1961) (right of employees to organize and bargain collectively); State v. Hannah 171 N.J. Super. 325, 330 (App.Div. 1979) (right to a public criminal trial inheres in the public); Freedman v. New Jersey State Police, 135 N.J. Super. 297, 300-301 (Law Div. 1975) (freedom of the press); Gray v. Serruto Builders, Inc., 110 N.J. Super. 297, 306-307 (Ch.Div. 1970) (right to be free from racial discrimination); cf. State v. Carpentieri, 82 N.J. 546, 572-573 (1980) (Pashman, J., dissenting) (freedom from `unreasonable searches and seizures'). Contra, Anderson v. Sills, 143 N.J. Super. 432, 442 (Ch.Div. 1976). [State v. Schmid, 84 N.J. at 555-556].
Also see So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983) (obligation of municipality to provide housing opportunities for lower income groups); Right to Choose v. Byrne, 91 N.J. 287 (1982) (enhanced equal protection accorded individual right to health and privacy); State v. Hunt, supra (the individual's protectible privacy interest in long distance toll *243 records); State v. Schmid, supra (right of free speech on private university campus); State v. Gilmore, 199 N.J. Super. 389 (App.Div. 1985) (the State's use of peremptory challenges in a criminal case must be free of racial discrimination).
Significantly, where each of the foregoing constitutional violations occurred, the courts of this State "have not hesitated to recognize and vindicate individual rights under the State Constitution" by providing meaningful remedies. State v. Williams, 93 N.J. at 57. Those were provided in recognition that "the State Constitution imposes upon the State government an affirmative obligation to protect fundamental individual rights," State v. Schmid, 84 N.J. at 559, which are guaranteed by our State Constitution. All of these rights have been deemed essential to both the quality of individual life and the preservation of personal liberty.
As previously noted, the law of this State has evolved to the point where nonconsensual searches for evidence of a crime without probable cause are per se unreasonable and violative of N.J. Const. (1947), Art. I, ¶ 7. The exclusionary rule, as a meaningful remedy for abuse, has been part of the tradition and history of this State since 1961. To now permit the State to use in its case in chief evidence seized without probable cause would allow a substantial constitutional wrong to be suffered. That would violate a longstanding tradition of this State of providing meaningful remedies for major constitutional violations.
D. WHY NO GOOD FAITH EXCEPTION.
In the history of the State, our courts have not recognized any exception to the probable cause requirement in order to conduct a nonconsensual search for evidence of a crime, whether the search is conducted with or without a warrant. The "[c]ourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of constitutional armory safeguarding citizens *244 from unreasonable searches and seizures." State v. Valencia, 93 N.J. at 134. The Leon good faith exception eliminates any meaningful review of probable cause determinations. Long experience with the suppression rule leaves us with the settled conviction that once the police act under cover of a warrant, even though issued without probable cause, as a practical matter their good faith is immune to attack. The Leon good faith exception contemplates that appellate courts defer to trial courts and trial courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.
The most compelling reason to exclude from the State's case in chief evidence seized without probable cause is to protect the integrity of our State criminal trials. The integrity of the criminal justice process is vital in this State. State v. Czachor, 82 N.J. 392, 404 (1980); State v. Wagner, 180 N.J. Super. 564, 567 (App.Div. 1981); State v. Sugar, 84 N.J. 1 (1980); State v. Vinegra, 73 N.J. 484 (1977). By admitting evidence unconstitutionally seized, the courts condone this lawlessness and in the process dirty their hands with the unconstitutional spoils.
To summarize, today we hold that N.J. Const. (1947), Art. I, ¶ 7 precludes a good faith exception to a nonconsensual search and seizure conducted without probable cause. The decision in Leon represents a serious curtailment of the Fourth Amendment rights of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause. The admission of that evidence would not only violate N.J. Const. (1947), Art. I, ¶ 7, but would violate the integrity of the court and the State's long tradition of providing a meaningful remedy to redress constitutional violations. Those who govern and those who are governed must all obey the law; ignorance of the law excuses neither the law breaker, the law enforcer nor the *245 administrator of the law. In the circumstances presented, our State Constitution precludes a good faith exception to the exclusionary rule where no probable cause existed to search for evidence of a crime.
The order of suppression is accordingly affirmed.
SIMPSON, J.A.D., concurring.
The affidavit, search warrant, and seizure involved in this case were dated or occurred on June 2, 1983 six days before Illinois v. Gates, supra, which was decided on June 8, 1983, and more than a year before United States v. Leon, supra, which was decided on July 5, 1984. The testimony on the motion to suppress was taken on March 28, 1984 and the Law Division judge ruled against the State on April 9, 1984. He found lack of probable cause for the issuance of a valid search warrant under both the "two-pronged" test established in Aguilar v. Texas, supra and Spinelli v. United States, supra, and the "totality of the circumstances" test set forth in Gates. I join with the majority in upholding the suppression of the evidence based upon lack of probable cause.
In my view, however, the present posture of this case precludes any appellate inquiry as to whether the search warrant was validly issued under the "good faith" exception to the exclusionary rule announced by the United States Supreme Court in Leon. The exception to the Fourth Amendment requirement of probable cause for the issuance of a valid warrant to preclude an unreasonable search and seizure requires objectively reasonable reliance by the police on a warrant issued by a detached and neutral magistrate. Massachusetts v. Sheppard, 468 U.S. ___, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Leon, supra, 468 U.S. at ___, 104 S.Ct. at 3411, 82 L.Ed.2d at 686, Justice White noted that the trial court found that the police officer "acted in good faith", while in the present case Judge Grossi did not address this crucial issue. Although raised in the briefs on appeal that were filed after Judge Grossi's suppression *246 decision (because Leon had been decided in the interim), there was no finding of fact as to "good faith" at the subsequent hearing on November 14-15, 1984 or in the judge's January 17, 1985 Order on Remand because he concluded that our order of October 19, 1984 limited the remand "to determine the issue of whether the search and seizure was before or after the issuance of the warrant." That issue had been raised initially by the defendant and on the remand the judge found that the search warrant was in fact issued before the search and seizure. Even assuming the Leon doctrine is retroactive, which is doubtful[1], I believe that a complete record should be made at the trial level, including a factual determination as to good faith, prior to appellate consideration of such issue. Even on the limited record before us, it is evident that additional proofs might have been proffered if our remand had been broader.
A complete record will also enable this court, and ultimately the New Jersey Supreme Court, to better determine whether and how broad a good faith exception to the exclusionary rule may be found under the particular circumstances of a case, pursuant to our N.J. Const. (1947), Art. I, ¶ 7 counterpart to the Fourth Amendment. It seems clear that the parameters of the Leon doctrine will have to be determined on a case-by-case basis, and the same may be true when a question arises under our New Jersey constitutional protection against unreasonable searches and seizures. Although our state constitution has on occasion been relied upon to reach conclusions contrary to the United States Supreme Court on congruent issues, Justice Schreiber noted in State v. Hunt, 91 N.J. 338, 344-345 (1982):
Though notions of federalism may seem to justify this difference [as to whether toll billing records are entitled to Fourth Amendment protection], enforcement of criminal laws in federal and state courts, sometimes involving the identical episodes, encourages application of uniform rules governing search and seizure. *247 Divergent interpretations are unsatisfactory from the public perspective, particularly where the historical roots and purposes of the federal and state provisions are the same.
I therefore conclude that (1) the question of the police officer's good faith should first be determined by a trial judge at an evidentiary hearing on such issue, (2) this fact issue should initially be addressed in the light of the Fourth Amendment, Leon, and any other federal constitutional guidelines, and (3) any consideration as to whether there is a good faith exception to the exclusionary rule under Art. I, ¶ 7 of the New Jersey Constitution should be deferred until an appropriate case is presented where suppression has been denied on federal constitutional "good faith" grounds. I do not join in Part II of the majority opinion and the unnecessarily broad dicta that:
1. "The Leon good faith exception eliminates any meaningful review of probable cause determinations." (Page 244).
2. "The Leon good faith exception contemplates that appellate courts defer to trial courts and trial courts defer to the police." (Page 244).
3. "N.J. Const. (1947), Art. I, ¶ 7 precludes a good faith exception to a nonconsensual search and seizure conducted without probable cause." (Page 244).
NOTES
[1] Judge Antell's name mistakenly appeared on our earlier decision. He did not participate in the oral argument. Counsel have consented to his participation in the final decision.
[2] We find it unnecessary to decide whether Gates, which was decided eight days after the warrant in the present case was issued and executed, should be retroactively applied. We have found the affidavit defective under pre and post Gates standards.
[1] United States v. Leon, supra, 468 U.S. at ___ n. 7, 104 S.Ct. at 3436 n. 7, 82 L.Ed.2d at 710 n. 7 (Brennan, J., dissenting); State v. Howery, 80 N.J. 563, 568-571 (1979), cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312907/ | DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENTWilliam C. Griesbach, Chief Judge *844Claiming that his supervisor was the cause of anxiety/panic attacks he experienced at work, Plaintiff Craig Alan Summers sued his former employer, Target Corporation, for violating the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. , by failing to reasonably accommodate his disability by transferring him to another store and failing to engage in the interactive process to resolve his problem. Summers also alleges that Target's failure to transfer him to another store violated the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31, et seq. , because it forced him to resign, thus constituting a constructive discharge. The court has jurisdiction over Summers' ADA claims pursuant to 28 U.S.C. § 1332 and supplemental jurisdiction over his state law claim under 28 U.S.C. § 1367. Currently before the court is Target's motion for summary judgment. In its motion, Target argues that Summers is not disabled for purposes of the ADA, Summers' accommodation request was not reasonable, Summers cannot bring an independent claim for failing to engage in the interactive process, and the WFEA does not provide for a private right of action. For the reasons that follow, Target's motion will be granted.BACKGROUNDSummers began working at the Green Bay store in January of 2016. About a month later, Lundin approached Summers and requested that he keep the circumstances surrounding Lundin's termination at The Home Depot a secret and that he not discuss the matter with others. Also around this time Lundin recommended that Summers be promoted to a store team leader. During the next six months, the relationship between Summers and Lundin became strained as the result of certain interactions that occurred between the two at the store. For example, Lundin told Summers that a display in the sporting goods section for which Summers was partially responsible was not up to standard and "makes me want to go home and shoot off my [assault rifle]." Summers Dep., Dkt. No. 19-1 at 7:24-8:1. Lundin also referred to Summers as "the whitest black man that I know," id. at 10:24-25, and in a meeting with other employees said that Summers' choice for who should lead a particular store initiative was lousy and that as a result of the initiative's failure Lundin would not be able to afford presents for his kids and would have to live on welfare and food stamps.In August of 2016 Summers was placed on a six-month development plan that he had to successfully complete in order to be promoted to a store team leader. Each month Summers was to meet with Lundin to discuss his progress under the plan. On *845December 29, 2016, Summers met with Lundin for one such meeting. In the course of the meeting, Summers asked where things stood with the plan to which Lundin responded, "I knew you were going to come in here demanding about being promoted early and all that." Id. at 104:24-25. Lundin proceeded to outline some areas where he thought Summers needed to improve. The meeting concluded with Lundin asking Summers if he should contact the District Leader to tell him to prepare Summers' replacement.Following this meeting Summers reached out to Ricardo Vargas, the district human resources manager, explained his concerns about working with Lundin, and expressed his desire to be relocated to a different store. Vargas informed Summers that if he transferred he would need to restart his development plan and encouraged Summers to remain at his current store.When Summers came to work on January 2, 2017, for the first time after the meeting, he experienced rapid heart palpitations, shortness of breath, and dizziness, which resulted in him leaving for the day. Summers later texted Vargas, once more requesting that he be transferred to a different store. Two days later Summers spoke over the phone with Logan Rankin, the district team leader, about relocation to a different store. Summers was informed that he could either return to his current store or stop working at Target all together. Summers emailed Lundin on January 5, 2017, to inform him that he would not be in the following day because he was still experiencing the earlier symptoms.On January 6, 2017, Summers awoke to heart palpitations and shortness of breath and made an appointment to see his primary care physician, Dr. Daniel Lemkuil, later that day. Dr. Lemkuil diagnosed Summers with anxiety, stress, palpitations, and panic disorders and prescribed anti-anxiety and anti-depressant medication. Summers also applied for medical leave that same day. Target's policy required that his request be completed by a therapist, supported by proof of an actual disability, and approved by Target. In order to complete his medical leave request, Summers was also seen by Daniel Gesell, a licensed clinical therapist. The reports of Dr. Lemkuil and Gesell attributed Summers' conditions to the work environment at his current store and recommended relocation to a different store to treat his conditions. Summers' medical leave request was approved on January 18, 2017, effective as of January 6, 2017.Over the course of the next three months Dr. Lemkuil and Gesell submitted the medical documentation required by Target in order for Summers to remain on medical leave. During this time, Summers reached out to members of Target's upper management and requested assistance with his situation and expressed a desire to be transferred to a different store. On April 10, 2017, Summers resigned from his position at Target. That same day Summers started in a position at an Aldi as a store manager-in-training that was in close proximity to the Target store at which he previously worked. Summers left the position after three days because his panic symptoms resurfaced.Summers filed a charge of discrimination against Target with the Equal Employment Opportunity Commission (EEOC) on April 17, 2017. The EEOC concurrently filed the charge with the State of Wisconsin Department of Workforce Development, Equal Rights Division (ERD). On May 22, 2017, the ERD informed Summers that the EEOC would handle the matter. On September 15, 2017, the EEOC determined after investigating Summers' claims that "there was reasonable *846cause to believe that [Target] violated the ADA because it participated in a relationship which had the effect of subjecting its employee to discrimination when, through its agent, it failed to engage [Summers] in the interactive process and subsequently denied him reasonable accommodation" and that "[Target's] action forced [Summers] to resign his employment." Dkt. No. 19-9 at 2. Summers initiated this lawsuit on January 8, 2018.LEGAL STANDARDSummary judgment should be granted when the moving party shows 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(a). In other words, the time and expense of the parties and the court should not be wasted on a trial when there are no material facts in dispute, one party is entitled to judgment on those facts, and thus there is nothing to try. In deciding a motion for summary judgment, all reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette , 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must "submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial." Siegel v. Shell Oil Co. , 612 F.3d 932, 937 (7th Cir. 2010) (quoted source and internal quotation marks omitted). "The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts." Id. Summary judgment is properly entered against a party "who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Parent v. Home Depot U.S.A., Inc. , 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).ANALYSISSummers alleges that Target discriminated against him on the basis of his disability by failing to accommodate his disability under Title I of the ADA. The ADA prohibits employers from discriminating against qualified employees on the basis of a qualified disability. 42 U.S.C. § 12112(a). Discrimination under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." § 12112(b)(5)(A).A. Disability Under the ADAAs an initial matter, Target challenges whether Summers has a disability under the ADA. Target claims that Summers is not disabled because he did not have an impairment that limited his employment in general and did not otherwise impair a major life activity. The term "disability" means with respect to an individual "a physical or mental impairment that substantially limits one or more major life activities of such an individual," "a record of such an impairment," or "being regarded as having such an impairment." 42 U.S.C. § 12102(1). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." § 12102(2)(A).An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.*847An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.29 C.F.R. § 1630.2(j)(1)(ii). In determining whether an impairment substantially limits life activities, courts consider "1) the nature and severity of the impairment; 2) the duration of the impairment; and 3) the permanent or long-term impact resulting from the impairment." Furnish v. SVI Sys., Inc. , 270 F.3d 445, 450 (7th Cir. 2001). "The plaintiff bears the burden of proof on this issue; she must be able to show that she is a 'qualified individual with a disability' in order to successfully prosecute an ADA claim." Weiler v. Household Fin. Corp. , 101 F.3d 519, 524 (7th Cir. 1996)."[W]ith respect to the major life activity of working, 'substantially limits' must mean significantly restricts the ability to perform a class of jobs or a broad range of jobs in various classes." Id. at 525. "It is well established that an inability to perform a particular job for a particular employer is not sufficient to establish a handicap; the impairment must substantially limit employment generally." Byrne v. Bd. of Educ., Sch. of W. Allis-W. Milwaukee , 979 F.2d 560, 565 (7th Cir. 1992). The definition of "major life activity" in the regulations "cannot be interpreted ... to include working at the specific job of one's choice." Id.Summers' inability or unwillingness to return to work at the same Target store where Lundin works is not sufficient to establish a disability under the ADA because there are no indications that his ability to work at another location or in a similar class of jobs was impaired. Summers stated in response to an interrogatory that his disability "was solely and proximately linked to one singular cause, his continued employment at one specific store under one specific manager ." Dkt. No. 24-1 at 6 (emphasis added). Summers' medical records also confirm that the extent of his inability or difficulty working was limited just to working at one Target store under Lundin rather than an inability to work in general. Dr. Lemkuil, Summers' primary care provider stated in his assessment that Summers was "[n]ot able to work in current environment but could with relocation," Dkt. No. 24-3 at 13, and generally found that his conditions were directly tied to a specific work environment. Similarly, Daniel Gesell, a licensed professional counselor that Summers saw, stated in his recommended treatment plan that he does believe Summers' "current symptoms are circumstantial and a direct trigger from his work stress," Dkt. No. 24-3 at 29, and found that his difficulties stemmed from a particular work environment and would dissipate if he could work in a different environment. Although the environment at that particular Target store and working under Lundin caused Summers' stress, anxiety, and other symptoms, "a personality conflict with a supervisor or coworker does not establish a disability within the meaning of the disability law even if it produces anxiety and depression, as such conflicts often do. Such a conflict is not disabling; at most it requires the worker to get a new job." Palmer v. Circuit Court of Cook Cty., Ill. , 117 F.3d 351, 352 (7th Cir. 1997) (internal citation omitted).In Weiler v. Household Finance Corp. , the Seventh Circuit rejected the argument that a person is disabled where the alleged disability is linked only to working alongside particular colleagues or supervisors in a particular job or work location. 101 F.3d 519, 525 (7th Cir.1996). As the Court explained in Weiler :[W]ith respect to the major life activity of working, 'substantially limits' must *848mean significantly restricts the ability to perform a class of jobs or a broad range of jobs in various classes. [Plaintiff] claims she can do her job, but not while being supervised by [a particular supervisor]. If [Plaintiff] can do the same job for another supervisor, she can do the job, and does not qualify under the ADA.Id. (internal citation omitted); see also Scott v. Kaneland Cmty. Unit School Dist. No. 302 , 898 F. Supp. 2d 1001, 1003, 1005-06 (N.D. Ill. 2012) (plaintiff-teacher failed to establish that severe attention deficit disorder and depression qualified as a disability because plaintiff was able to perform as a teacher, just not at his current school district because certain supervisors worsened his issues); Pack v. Illinois Dept. of Healthcare & Family Servs. , No. 13-cv-8939, 2015 WL 507555, at *3 (N.D. Ill. Feb. 5, 2015) ("Because Plaintiff asserts that she is capable of working, just not at IDHFS where Stevenson is, Plaintiff has not sufficiently alleged that she is disabled under the ADA.").That is precisely the situation in this case. Summers concedes he is capable of performing the tasks of his position, just not under the supervision of Lundin. Summers repeatedly sought transfer to other Target stores to perform the same job and does not allege that he would be incapable of performing his job under different supervision. Because Summers can do the same job for another supervisor, he is capable of working and is not disabled as that term is used in the ADA. Weiler , 101 F.3d at 525 ("If Weiler can do the same job for another supervisor, she can do the job, and does not qualify under the ADA."). Accordingly, the court finds that Summers' inability to work at a single Target store under one particular supervisor does not constitute a disability for purposes of the ADA.The clear teaching of Weiler is that the fact that the plaintiff is unable to work for a particular supervisor, whether because of anxiety or extreme dislike, is not a disability within the meaning of the ADA. "The major life activity of working is not 'substantially limited' if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related to his review of her job performance." Weiler , 101 F.3d at 524. " 'Substantially limits' means 'significantly restricts the ability to perform a class of jobs or a broad range of jobs in various classes.' " Skorup v. Modern Door Corp. , 153 F.3d 512, 514 (7th Cir. 1998) (quoting Weiler , 101 F.3d at 525 ). " '[A]n inability to perform a particular job for a particular employer' is not sufficient to establish a substantial limitation on the ability to work; rather, 'the impairment must substantially limit employment generally.' " Weiler , 101 F.3d at 524 (quoting Byrne , 979 F.2d at 565 ); see also Vega v. Adult Probation Dep't. of Cook Cty. , Nos. 98-3028, 99-1902, 1999 WL 1278006, at *2 (7th Cir. Dec. 29, 1999) ("Yet 'situational anxiety' is by definition 'situational': it is linked to the particular *849tasks and supervisors encountered in a particular job. A condition that prevents a person from doing a single job (or just working with one supervisor) does not meet the regulation's definition of a disability."). Summers has offered no evidence that the anxiety and panic attacks he claims Lundin has caused him to experience would limit his ability to work at any other job in any other location. To the contrary, Summers, his doctor, and his counselor all state that he can work in another location without Lundin as his supervisor. This is not what the ADA means by disability.B. Reasonable AccommodationBecause Summers has failed to offer evidence from which a reasonable jury could find he has a disability, his remaining claims fail as well. Without a showing of a disability, Target had no duty to accommodate his demand for relocation. Even if Summers' condition did amount to a disability, his request for a different supervisor at a different location would not be considered reasonable."Under the ADA, an employer must reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability, unless the accommodation would impose an undue hardship on the employer." Weiler , 101 F.3d at 525 (citing 42 U.S.C. § 12112(b)(5)(A) ). Reasonable accommodations include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9). "[T]o be entitled to an accommodation, a disabled employee must have a physical or mental limitation that prevents her from performing an essential function of the particular job at issue and 'there must be some causal connection between the major life activity that is limited and the accommodation sought.' " Squibb v. Mem'l Med. Ctr. , 497 F.3d 775, 785 (7th Cir. 2007) (quoting Nuzum v. Ozark Auto. Distribs., Inc. , 432 F.3d 839, 848 (8th Cir. 2005) ).Even if Summers' Lundin-induced anxiety was considered a disability, Target was not required to transfer Summers because his requested accommodation was unreasonable. "[A] conflict with a supervisor" that has led to "significant medical problems ... [does] not mandate a transfer." Bradford v. City of Chicago , 121 F. App'x 137, 140 (7th Cir. 2005). The ADA does not require an employer to transfer an employer to work for a different supervisor or to transfer that supervisor. Weiler , 101 F.3d at 526. Although Summers argues that Weiler is distinguishable from the case at hand because the employer in Weiler took steps to accommodate the employee in different ways aside from transfer that were all rejected by the employee, the underlying principle that guided the Weiler Court's decision still applies here: "Weiler's solution is that she return to work under a different supervisor. But that decision remains with the employer. In essence, Weiler asks us to allow her to establish the conditions of her employment, most notably, who will supervise her. Nothing in the ADA allows this shift in responsibility." Id. That is in essence what Summers is requesting; that Target transfer him to another location so that he can continue working in the same position under a different supervisor. The failure to assign or transfer an employee to work under a different supervisor does not violate the reasonable accommodation requirement of the ADA when the employee's disability is specifically tied to a particular *850supervisor and the employee's ability to work is inhibited only in connection with working for that supervisor. Although "the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer," EEOC v. United Airlines, Inc. , 693 F.3d 760, 761 (7th Cir. 2012), here the requested accommodation is not reasonable because Summers is essentially trying to dictate who supervises him and refusing to return to work absent satisfaction of that demand. "An employer cannot 'reasonably accommodate' an employee who refuses to return to work." Weiler , 101 F.3d at 526.Summers contends that, in addition to requesting a transfer, he also requested that changes be made to the store environment as a reasonable accommodation. The record, however, does not support this contention. In his responses to interrogatories, Summers stated he "was placed on an approved leave of absence by Target and he made a request for a reasonable accommodation-relocation to a different store.... [Summers'] doctor (Lemkuil) repeatedly made the same recommendation, relocation to a different store-the identical request Plaintiff made, in multiple forms to multiple people, before and after the filing of the EEOC complaint. Relocation to another store was the only request for reasonable accommodation that Plaintiff made." Dkt No. 24-1 at 6-7 (emphasis added). Summers' doctors in essence supported his request for relocation: "[p]atient states that he cannot work in current place but could in another location," Dkt No. 29-3 at 11; "[n]ot able to work in current environment but could with relocation," id. at 13. Although there was a recommendation for a change in Summers' current work environment because it could result in working toward "full work functioning," id. at 16, it does not appear that Summers ever made that request directly to Target.In addition, it does not appear that such a change in the current work environment would be feasible or reasonable. Summers stated in his deposition that a change in the environment was likely not possible given his discomfort with Lundin as well as others in positions similar to his, leading him to the conclusion that "leaving the store altogether became the best option, and that's the request that I would make ...." Dkt. No. 19-1 at 14. Further, given that Summers stated he was unable to work at the Aldi merely because of its close physical proximity to the Target store where Lundin worked, it seems unreasonable to expect that there is a possible change in environment that could occur absent the removal of Lundin and others that would have allowed Summers to return to that particular Target. And, as stated earlier, changing an employer's supervisor is not a reasonable accommodation. See ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT , 2002 WL 31994335, at *24 ("Does an employer have to change a person's supervisor as a form of reasonable accommodation? No. An employer does not have to provide an employee with a new supervisor as a reasonable accommodation.").C. Remaining Claims-Failure to Engage in Interactive Process and Constructive DischargeSummers concedes that an employer's failure to engage in the interactive process the ADA envisions being used to resolve differences is not an independent claim. Moreover, because he is not disabled, Target had no obligation to engage in such a process in any event. And Summers has failed to respond to Target's argument that the Wisconsin Fair Employment Act, *851Wis. Stat. § 111.321, does not create a private right of action apart from the administrative proceeding in the Equal Rights Division of the Department of Workforce Development. See Sharp v. Stoughton Trailers, LLC , No. 15-CV-598, 2016 WL 3102241 (W.D. Wis. June 2, 2016). Any argument to the contrary is therefore waived and Summers' WFEA claim is dismissed as well.CONCLUSIONFor the aforementioned reasons, Target's Motion for Summary Judgment (Dkt No. 12) is GRANTED. Accordingly, all of Summers' claims against Target are dismissed, and the Clerk is directed to enter judgment accordingly.SO ORDERED this 14th day of May, 2019. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1726300/ | 735 N.W.2d 193 (2007)
2007 WI App 162
DIAMONDBACK FUNDING
v.
CHILI'S OF WISCONSIN.
No. 2006AP1743.
Court of Appeals of Wisconsin.
May 22, 2007.
Unpublished opinion. Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743983/ | 507 S.W.2d 508 (1974)
J. B. WILSON, Appellant,
v.
Joan RODGERS et al., Appellees.
No. 73-282.
Supreme Court of Arkansas.
March 25, 1974.
Rehearing Denied April 29, 1974.
Milton G. Robinson, Stuttgart, for appellant.
Wm. M. Moorhead of Macom, Moorhead & Green, Stuttgart, for appellees.
GEORGE ROSE SMITH, Justice.
This is the third appeal in a suit to determine whether certain real property was owned by two brothers as partners or by only one brother individually. Upon the second appeal it did not appear that the chancellor had considered the entire record in deciding disputed issues of fact. We found the evidence to be so evenly balanced that we could not say where the preponderance lay. We therefore remanded the case for the chancellor's decision upon that point, on the entire record but without additional testimony. Wilson v. Rodgers, 254 Ark. 487, 494 S.W.2d 484 (1973).
Pursuant to our mandate the chancellor re-examined the issues and concluded that the preponderance of the evidence favors the appellees. Counsel for the appellant now asks us to reconsider all the arguments that were presented upon the second appeal. We must decline that invitation. No principle is more firmly settled by our decisions than the rule that the matters decided upon one appeal become the law of the case and govern this court upon a second appeal, even though we might be inclined to say that we were wrong in the first instance. International Harvester Co. v. Burks Motors, 252 Ark. 816, 481 S.W.2d 351 (1972). It follows that the chancellor's decision is now conclusive upon the only issue that was left open by our opinion upon the second appeal. That ends the litigation.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2762823/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 18, 2014
Plaintiff-Appellee,
v No. 318330
Lenawee Circuit Court
JOSEPH GILBERT VILLALOBOS, LC No. 11-015216-FH
Defendant-Appellant.
Before: JANSEN, P.J., and TALBOT and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s imposition of five months’ jail time as a
component of his sentence for violation of his probation. On January 5, 2012, defendant was
convicted by a jury of fourth-degree criminal sexual conduct, MCL 750.520e(1)(c). On February
29, 2012, defendant was sentenced to five years’ probation and five months in jail, but the jail
time was deferred until the end of his probation term. On September 26, 2012, defendant
violated his probation by smoking marijuana. He was charged with a probation violation and,
after pleading guilty to the probation violation, was sentenced to five months in jail, and with his
probation being continued under the original terms and conditions imposed.
On appeal, defendant indirectly argues that the trial court relied on inaccurate information
when it determined his sentence. Defendant also alleges that the trial court abused its discretion
and violated his right to due process because it sentenced him to jail time instead of holding his
jail sentence in abeyance pending completion of his court ordered drug treatment program. We
disagree.
Defendant did not properly preserve his claim regarding the accuracy of the information
the trial court relied upon in sentencing. To preserve a challenge to the accuracy of the
information used to determine his or her sentence, a defendant must raise the issue “at
sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the
court of appeals.” MCL 769.34(10); see also People v Jackson, 487 Mich. 783, 795; 790 NW2d
340 (2010). Defendant has done none of the above, nor has he pointed out, specifically, what
information was inaccurate or demonstrated that the trial court relied upon any such inaccurate
information in imposing sentence.
Defendant also did not raise his due process claim below. Unpreserved claims of due
process violations are reviewed for plain error affecting substantial rights. People v Shafier, 483
-1-
Mich 205, 219; 768 NW2d 305 (2009). “Reversal is warranted only when the plain, forfeited
error resulted in the conviction of an actually innocent defendant or when an error seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent of the
defendant’s innocence.” People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999)(internal
citation and quotations omitted).
Generally, this Court reviews sentencing decisions for an abuse of discretion. People v
Moorer, 246 Mich. App. 680, 684; 635 NW2d 47 (2001). “A trial court’s sentence is an abuse of
discretion if it violates the principle of proportionality, which requires that a sentence be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Id.
In this case, we need not reach the merits of defendant’s arguments, because his claim is
moot. “It is well established that a court will not decide moot issues.” People v Richmond, 486
Mich. 29, 34; 782 NW2d 187 (2010). An issue is moot once a judgment from the court can have
no “practical legal effect upon a then existing controversy.” Id. at 34-35. When a defendant
challenges the length of his or her jail sentence on appeal, if that defendant has already served
the alleged defective jail sentence, then it is impossible for this Court to fashion a remedy, and
the issue is moot. Defendant was sentenced to five months in jail, with credit for 73 days served,
on August 8, 2013. Defendant’s brief on appeal was filed on January 15, 2014. By the time that
his brief in this matter was filed, defendant’s sentence at issue was complete.1 Therefore, this
Court cannot grant defendant the remedy he seeks, and his appeal is dismissed as moot.
Dismissed as moot.
/s/ Kathleen Jansen
/s/ Michael J. Talbot
/s/ Deborah A. Servitto
1
Defendant is presently in custody. He was sentenced on March 12, 2014, for an additional
probation violation, not at issue in the instant case, which occurred after he served his sentence
stemming from the September 26, 2012, probation violation.
-2- | 01-03-2023 | 12-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1769243/ | 720 F. Supp. 397 (1989)
DREXELBROOK CONTROLS, INC., Plaintiff,
v.
MAGNETROL INTERNATIONAL, INC., Defendant.
Civ. A. No. 89-132-CMW.
United States District Court, D. Delaware.
August 30, 1989.
*398 William O. LaMotte, III, and Donald F. Parsons, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del. Norman L. Norris, and Jeffrey M. Navon, of Woodcock, Washburn, Kurtz, Mackiewicz & Norris, Philadelphia, Pa., of counsel, for plaintiff.
Vernon R. Proctor, and Michael Bonkowski, of Phillips, Lytle, Hitchcock, Blaine & Huber, Wilmington, Del. Lloyd W. Mason, Richard S. Phillips, and F. William McLaughlin, of Wood, Dalton, Phillips, Mason & Rowe, Chicago, Ill., for defendant.
OPINION
CALEB M. WRIGHT, Senior District Judge.
This is a patent infringement suit in which plaintiff, Drexelbrook Controls, Inc. ("Drexelbrook"), seeks a preliminary injunction against defendant, Magnetrol International, Inc. ("Magnetrol"). Drexelbrook charges Magnetrol with infringement of Drexelbrook's United States Patent No. 4,146,834 (the "'834 patent"), which is directed to a two-wire, electronic transmitter system used in measuring the condition of materials. Specifically, Drexelbrook requests the Court to "enjoin Magnetrol from making, using or selling [KOTRON] two-wire transmitters and equivalent two-wire admittance monitoring transmitters."
*399 Drexelbrook filed suit on March 21, 1989. It moved for a preliminary injunction on May 5, 1989, and briefing on the motion was completed June 28, 1989. The Court heard oral argument on July 7, 1989.
The Court has jurisdiction pursuant to 28 U.S.C. § 1338(a). For the reasons stated herein, plaintiff's motion is denied.
I. FACTS
Drexelbrook, a Pennsylvania corporation, was founded in 1966 by its president, Frederick L. Maltby. Drexelbrook filed a patent application on September 19, 1974, directed to a two-wire transmitter comprising an admittance monitoring circuit. An admittance monitoring system measures a dynamic electrical characteristic (the admittance) of a material and uses that characteristic to indicate the condition of a material.[1] Such a system can be used to measure the level of a liquid, such as oil, or a granular solid, such as grain, by electrically sensing the admittance between a probe electrode immersed in the material and a grounded vessel containing the material.[2] Prior to the issuance of Drexelbrook's application as U.S. Patent No. 3,993,947 (the "'947 patent"), a continuation-in-part application was filed on November 22, 1976, which ultimately issued on March 27, 1979, as the '834 patent. The '834 patent is entitled "Admittance Measuring System for Monitoring the Condition of Materials."
The '834 patent includes thirty-five claims directed to various features of a two-wire transmitter system comprising the admittance monitoring circuit. As recited in claim 1 of the '834 patent, the two-wire transmitter system comprises an admittance sensing probe including a probe electrode that is adapted to sense the condition and corresponding admittance of materials. '834 Patent at column 26, lines 64-66. An admittance responsive network coupled to the probe represents the condition of the materials, and output means coupled to the admittance responsive network varies the signaling current in response to the condition of the materials. Id. at column 26, lines 67-68; column 27, lines 1-3.
Drexelbrook employs the subject matter of the '834 patent in its Universal Level Transmitter product line. This product line includes various two-wire transmitter models for admittance monitoring of conducting liquids, conducting slurries, interface levels and granular materials. The advantages of the system covered by the '834 patent include high reliability and low power requirements, which make it suitable for use in explosive or hazardous environments.
Drexelbrook has a number of competitors in the admittance monitoring product field. These include, but are not limited to, Princo Instruments, Inc. ("Princo") and defendant, Magnetrol. Magnetrol manufactures and sells the KOTRON Two-Wire Level Transmitter. This device includes a probe and transmitter circuitry, but does not include a load (power output), power supply or transmission line wires.[3]
II. ANALYSIS
The patent laws authorize this Court to grant a preliminary injunction in a patent case, and make the issuance of an injunction discretionary. 35 U.S.C. § 283; T.J. Smith & Nephew Ltd. v. Consol. Medical Equipment, Inc., 821 F.2d 646, 646 (Fed. Cir.1987). "The district court's discretion is not absolute, however, and must be measured against the standards governing the issuance of injunctions." Smith Int'l., Inc. v. Hughes Tool Co., 718 F.2d 1573, 1579 (Fed.Cir.), cert. denied, 464 U.S. 996, 104 S. Ct. 493, 78 L. Ed. 2d 687 (1983).
*400 To obtain a preliminary injunction in a patent infringement action pursuant to 35 U.S.C. § 283, a party must establish a right thereto in light of four factors: (1) reasonable likelihood of success on the merits; (2) irreparable harm; (3) the balance of hardships tipping in its favor; and (4) the impact of the injunction on the public interest. P.W. Woo & Sons, Inc. v. Antelope Enterprise Co. Ltd., 871 F.2d 1096, 10 U.S.P. Q.2d 1876, 1877 (Fed.Cir.1989); Hybritech Inc. v. Abbott Laboratories, 849 F.2d 1446, 1451 (Fed.Cir.1988); Consolidated Medical, 821 F.2d at 647. None of these factors, taken individually, are dispositive; rather, the court "must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested." Hybritech, 849 F.2d at 1451.
If a patent holder makes a "clear showing" of both validity and infringement, the Court may presume irreparable harm. Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1271 (Fed.Cir.1985); Smith Int'l., 718 F.2d at 1581. If the patentee does not make such a "clear showing", but can establish only a reasonable likelihood of success on the merits, then he also must make a separate showing of irreparable injury. Roper, 757 F.2d at 1272 n. 5; Upjohn Co. v. Riahom Corp., 641 F. Supp. 1209, 1217 (D.Del.1986).
A. Reasonable Likelihood of Success on the Merits
Thus, for Drexelbrook to succeed on its motion it must show a reasonable likelihood of success on the merits. To do so, Drexelbrook must show that there is a reasonable likelihood that at trial Magnetrol will not prevail on the invalidity and non-infringement defenses that it has advanced. More specifically, Drexelbrook has to show by a preponderance of the evidence both that Magnetrol will fail to meet its burden of proving, by clear and convincing evidence, that the '834 patent claims are invalid because of obviousness, and that Magnetrol infringes the '834 patent. See E.I. du Pont de Nemours & Co. v. Polaroid Graphics Imaging, Inc., 706 F. Supp. 1135, 1140 (D.Del.1989).
1. Validity
A patent is presumed valid, and each claim of a patent is presumed valid independent of the validity of the other claims. 35 U.S.C. § 282. This presumption is procedural, not substantive. Consolidated Medical, 821 F.2d at 648. The burden is on the party claiming invalidity to prove by clear and convincing evidence that the patent is invalid. 35 U.S.C. § 282; Polaroid, 706 F.Supp. at 1141. However, on a motion for preliminary injunction, the burden is on plaintiff to show a reasonable likelihood that the attack on its patent's validity would fail. H.H. Robertson, Co. v. United Steel Deck, Inc., 820 F.2d 384, 387 (Fed.Cir.1987); John Fluke Mfg. Co. v. North American Soar Corp., 5 U.S.P.Q.2d 1657, 1659, 1987 WL 46372 (D.N.J.1987).
A patent holder seeking a preliminary injunction can make a sufficient showing of patent validity in three ways: (1) a prior adjudication of the validity of the patent; (2) public acquiescence to its validity; or (3) direct technical evidence proving its validity. Smith Int'l., 718 F.2d at 1578; Upjohn, 641 F.Supp. at 1218. Because the validity of each of the patent's claims must be separately and independently considered, a plaintiff need only show a reasonable likelihood that one claim is valid in order for an injunction to be granted. Pittway v. Black & Decker, 667 F. Supp. 585, 588 (N.D.Ill.1987) (citing Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1569-72 (Fed.Cir.1986)).
Drexelbrook admits that there has been no adjudication of the validity of the '834 patent. However, there has been prior litigation regarding the patent. In 1988, Drexelbrook filed suit against Princo charging that Princo was infringing claims of both the '834 and '947 patents by making, using and selling a two-wire transmitter system comprising an admittance monitoring circuit. Drexelbrook filed a motion for a preliminary injunction. Before the court had an opportunity to consider Drexelbrook's motion, Princo entered into a consent *401 judgment with Drexelbrook. In the consent judgment, Princo acquiesced to the validity of the '834 patent by conceding that all claims of the patent were valid and that the claims of the patent were infringed by Princo. The consent judgment further enjoined Princo from infringing any claims of the '834 patent.
Drexelbrook asserts that the consent judgment "evidences public acquiescence in the validity of the '834 patent." Plaintiff's Brief at 13 ("P.Br."). Magnetrol calls this "pure speculation." Defendant's Brief at 10 ("D.Br."). While evidence of acquiescence by the industry to the patent owner's rights has long been accepted by the courts as providing partial or even total support for the probable validity of the patent, the necessary degree of acquiescence is dependent upon the particular circumstances. See 5 D. Chisum, Patents § 20.04[1], at XX-XXX-XX ("Chisum"). As a general matter, the public acquiescence needed to sustain validity must be long-standing. Upjohn, 641 F.Supp. at 1218. Also, acquiescence ceases to be probative of probable validity if the evidence suggests that such acquiescence was caused by factors other than belief by the industry in the validity of the patent. Chisum § 20.04[1], at 20-285.
Given these standards, the consent judgment with Princo is at best only non-dispositive evidence going to the validity of the '834 patent. The '834 patent issued ten years ago, and Drexelbrook and Princo entered into the consent judgment in 1988. Additionally, there is no evidence as to why Princo entered into the consent judgment. The Court, not unfamiliar with patent litigation, can only speculate as to Princo's motives, and is therefore chary of drawing inferences from the settlement.
Drexelbrook's chief argument in favor of the validity of the '834 patent is that direct technical evidence shows that it has met the statutory requirements for patentability. It makes this argument in response to Magnetrol's assertion that the subject matter of claim 1 of the '834 patent would have been obvious at the time of invention to a person of ordinary skill in the art, and that the claim therefore does not satisfy the nonobviousness requirement of 35 U.S.C. § 103.[4]
"The nature of the inquiry to be made and the factors to be considered in determining whether a patent was obvious are [now] well established...." Jenn-Air Corp. v. Modern Maid Co., 499 F. Supp. 320, 327 (D.Del.1980), aff'd, 659 F.2d 1068 (3d Cir.1981). Obviousness is a question of law based upon the factual inquiries enunciated in Graham v. John Deere Co., 383 U.S. 1, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). The Supreme Court in Graham stated:
Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.... Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness, these inquiries have relevancy.
383 U.S. at 17-18, 86 S.Ct. at 694. Additionally, "[o]bviousness cannot be established by combining the teachings of the prior art to produce the claimed invention, absent some teachings or suggestion supporting the combination." ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1577 (Fed.Cir.1984). Therefore, an invention is not unpatentable as obvious merely because it is a combination of prior art elements. See Fluke Mfg., 5 U.S.P. Q.2d at 1662.
To demonstrate the scope and content of the prior art, Magnetrol cites one publication *402 and six patents purportedly not considered by the Examiner (the "new references"),[5] two prior Drexelbrook patents (cited in the '834 specification)[6] and U.S. Patent No. 3,648,165 ("Shawhan patent").[7] Magnetrol asserts that these items "show two-wire transmitter systems with capacitive, resistive and inductive elements which sense a condition, each having a network which responds to the sensed condition and each having an output means which varies the signaling current in response to the condition." D.Br. at 8. Magnetrol argues that both the sensing probe and the two-wire system of claim 1 of the '834 patent are suggested (are "old") by the prior art.
In response to Magnetrol's argument of obviousness, Drexelbrook submitted an affidavit of Thomas W. Moore, an associate professor of electrical engineering at Drexel University ("Moore Aff. I"). Moore, after a study of the '834 patent and the prior art cited by Magnetrol, concludes that "the subject matter of claim 1 would not have been obvious ... since it would not have been obvious to combine prior art admittance sensing probes with prior art two-wire transmitter systems." Moore Aff. I at 2.
Implicit in Professor Moore's conclusion is the assumption that the prior art contained admittance sensing probes and two-wire transmitter systems.[8] The crux of Drexelbrook's argument on obviousness is therefore that the prior-art references do not disclose or suggest the combination (of two-wire system with admittance sensing probe) covered by claim 1 of the '834 patent, and that it would not have been obvious to combine those elements. See Reply Br. at 7. For a patent to be obvious based upon a combination of elements in the prior art, something in the prior art as a whole must suggest the desirability of the combination. See Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051 (Fed.Cir.1988); Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730 F.2d 1452, 1462 (Fed.Cir.1984). The dispositive question on the validity of claim 1 of the '834 patent is, then, whether the totality of prior art would render obvious the combination of an admittance sensing probe with a two-wire system.[9]
The Court is not prepared to definitively answer this question on the record before it. Despite Professor Moore's determination *403 of obviousness, the facts are insufficiently developed at this point to enable the Court to make any type of reasoned determination. This is so because the evidence introduced by Magnetrol creates a sufficient question as to whether there is any teaching or suggestion in any of the references, or in the prior art as a whole, that would lead one with ordinary skill in the art to make the combination.
That does not end the analysis, though. The objective evidence of nonobviousness, i.e., the "indicia" of Graham, should, when present, always be considered as an integral part of the analysis. Uniroyal, 837 F.2d at 1053; W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1555 (Fed.Cir. 1983).
The first of these indicia is commercial success. Drexelbrook has experienced substantial commercial success with its admittance monitoring control systems. Drexelbrook has the largest share of the U.S. market among companies supplying two-wire admittance monitoring systems. D.App. 4, at 3. Its total sales of admittance monitoring control systems were more than six million dollars in fiscal year 1979-80, and were in excess of nineteen million dollars for fiscal year 1988-89. P.App. at 171-72. Since the issuance of the '834 patent in 1979, sales of Drexelbrook's two-wire systems covered by the '834 patent have substantially increased. Id. at 172-73.
As to long-felt need, what was allegedly needed in the art prior to the invention claimed in the '834 patent was a two-wire transmitter system capable of monitoring the admittance of a material at a remote location. The inventors of the '834 patent initially believed admittance monitoring required higher power than was available to a two-wire transmitter. They assumed that in many cases "the [shunt] resistance in parallel with the capacitance between the probe electrode and [the] grounded vessel" would draw off all or nearly all of the four to twenty milliamp current typically available in a two-wire transmitter, leaving little or no power to operate the circuitry. However, their experiments demonstrated that the power consumed by the shunt resistance and the admittance monitoring system was substantially less than originally believed. The inventors concluded that the current available to power a two-wire transmitter was sufficient in all applications that would be realistically encountered. P.App. at 164-66 (affidavit of Frederick L. Maltby).
Further evidence of need is the fact that Magnetrol had customers request two-wire transmitters, which were not at the time part of the KOTRON line. Specifically, customers asked whether Magnetrol had "something like an Endress-Hauser or Princo or Drexelbrook?" P.App. at 372.
Also indicative of the need for such two-wire admittance monitoring devices, and the commercial success of these devices, is the fact that an increase in sales of Magnetrol's KOTRON two-wire transmitters has corresponded with a decrease in the sale of four-wire transmitters. D.App. 5, at 47-49. Today, about seventy percent of Magnetrol's sales of admittance monitoring transmitters are in two-wire transmitters. P.App. at 383. In other words, sales of two-wire transmitters have gradually supplanted sales of four-wire transmitters.
It is well established that the failure of others to provide a feasible solution to a long-standing problem is probative of nonobviousness. Uniroyal, 837 F.2d at 1054. This factor is very much related to long-felt need. As explained above, the inventors of the '834 patent seemingly overcame skepticism in the industry as to the feasibility of two-wire, low-power remote transmitters. While "failure" may be too strong a word to describe competitors' efforts here, it does appear that the '834 patent inventors achieved a new level of success with two-wire admittance monitoring systems, and that other companies followed Drexelbrook's lead. It is not entirely clear on this record, though, the extent to which there was a "problem" that was solved by the invention claimed in the '834 patent. This is so because the chief evidence of long-felt need (and long-standing problem) is contained in the affidavit of Frederick L. Maltby, one of the inventors of the '834 patent *404 and obviously an interested party. Additionally, there is no evidence contemporaneous with the time of the invention (such as a trade journal article) indicating that the invention claimed in the '834 patent provided a novel solution to a long-felt problem.
These secondary considerations of nonobviousness support Drexelbrook's contention that the '834 patent is valid, but they are not themselves sufficiently persuasive on these facts. If the patented combination of elements was obvious in the prior art, then the secondary considerations would not necessarily save the '834 patent. See Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1557 (Fed.Cir.1985).
Magnetrol next argues on the issue of validity that the '834 patent is anticipated by U.S. Patent No. 2,785,374 (the "Fay patent").[10] An invention is anticipated (i.e., lacks novelty) only if each element of the claimed invention is disclosed in a single prior art reference. Polaroid, 706 F.Supp. at 1141; 1 E. Lipscomb III, Lipscomb's Walker on Patents § 4:4, at 270 (2d ed. 1985). Anticipation exists only when "all of the same elements are found in exactly the same situation and united in the same way ... in a single prior art reference." Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894 (Fed.Cir. 1984). Anticipation is thus a narrow, technical defense that should be strictly applied. Studiengesellschaft Kohle mbH v. Dart Industries, Inc., 549 F. Supp. 716, 723 (D.Del.1982), aff'd, 726 F.2d 724 (Fed.Cir. 1984).
To counter Magnetrol's argument that the Fay patent anticipates the '834 patent, Drexelbrook introduced a second affidavit by Moore ("Moore Aff. II"). In that affidavit, Moore concludes that the Fay patent "does not anticipate claim 1 of the '834 patent nor does it taken alone or in combination with the other prior art references discussed in my earlier affidavit, render claim 1 ... obvious...." Moore Aff. II at 1.
The Fay patent, entitled "System for Analyzing the Composition of Fluid Mixtures," is directed to a system for detecting a small quantity of one fluid in a large volume of another fluid, such as a trace level of oil in water, or vice versa. Fay Patent at column 1, lines 15-25. The system comprises a housing that is adapted to be lowered into a borehole on a conductor cable. Id. at column 5, lines 36-38. A small amount of fluid enters the housing and comes in contact with a capacitator whose sheathed plates are mounted therein. Id. at column 5, lines 39-40. When the capacitator plates are energized, the device measures the electrical characteristic of the fluid. Id. at column 1, lines 60-70.
Professor Moore states that the Fay patent is distinguishable from the '834 patent in that the Fay patent discloses a capacitance sensing probe but not an admittance sensing probe. Moore Aff. II at 2. Additionally, he states that the Fay patent does not disclose a two-wire transmitter, wherein the sole source of power for the transmitter is supplied by the DC signaling current flowing through the transmission lines. Id. Rather, the Fay patent discloses one or more conductors that supply a DC powering current and carry an AC signaling current. Id.
At oral argument, Magnetrol's counsel argued that Professor Moore's differentiation of the '834 patent from the Fay patent was based on a characteristic of the '834 patent that is not part of claim 1 of the '834 patent. Transcript at 37-38 ("Tr."). Counsel did not, however, further specify to which particular characteristic he was referring. Regardless, upon application of the above-described "strict identity" test of anticipation, see 1 Chisum § 3.02, at 3-6, it cannot be said that the Fay patent anticipates claim 1 of the '834 patent.
Claim 1 of the '834 patent comprises a two-wire admittance monitoring system that operates on DC current and measures level change in a liquid or granular solid. *405 Conversely, the Fay patent discloses a capacitance sensing probe and system that operates on both AC and DC current, and is used to analyze the composition (not level) of fluids. There is not present here the type of literal correspondence necessary to support a finding of anticipation. Magnetrol has failed to prove anticipation more correctly, Drexelbrook has shown a reasonable likelihood of success on the anticipation issue.
However, as in Upjohn, the Court declines, at this preliminary stage, to make a finding that the '834 patent meets all the statutory requirements for patentability. Claim 1 of the '834 patent is very broad. P.App. at 388. Plaintiff filed this suit only five months ago, and the record is sparsely developed as to the content of the prior art and other considerations of validity. Indeed, Magnetrol has not yet completed its study of the prior art, and further investigation may well reveal vital prior art patents that will clarify the obviousness issue. See Tr. at 52-53. Based upon the parties' briefs and accompanying appendices and short, albeit informative, oral argument, the Court simply does not have an adequate factual record upon which to base any findings.[11]
The Court reaffirms its prior holding in Upjohn that it does not believe preliminary injunctive relief is proper when the patent holder cannot dispel sufficiently any doubts as to the validity of the patent. See 641 F.Supp. at 1218 n. 11. The existence of such doubts here indicates that Drexelbrook has not shown that Magnetrol will fail to prove by clear and convincing evidence that any claims of the '834 patent are invalid.[12] The Court's conclusion on the validity issue does not end the analysis on this motion for a preliminary injunction, however. The Court must also consider the remaining requirements that Drexel-brook must satisfy to support injunctive relief. See Upjohn, 641 F.Supp. at 1219.
2. Infringement
Determination of infringement involves three steps: (1) interpreting the language of the patent claims; (2) assessing the nature of the accused infringer's acts; and (3) applying the claims as construed to those acts. 5 D. Chisum, Patents § 20.04[1][d], at 20-288 (1988); Upjohn, 641 F.Supp. at 1219. It is axiomatic that the parameters of a patent right are defined by the claims of the patent, and that if the accused matter falls within the claims, literal infringement is made out. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S. Ct. 854, 855, 94 L. Ed. 1097 (1950); Smith Int'l., 718 F.2d at 1579 n. 2.
Plaintiff's motion for a preliminary injunction is based on a charge of infringement of claim 1 of the '834 patent. As summarized above, claim 1 is directed to a two-wire transmitter system comprising a power supply and a load at one location and a two-wire transmitter at another location, interconnected by a pair of transmission lines carrying a variable signaling current. '834 Patent at column 26, lines 59-63. The improvement is said to comprise: (1) an admittance sensing probe including a probe electrode adapted to sense the condition and corresponding admittance of materials; (2) an admittance responsive network coupled to the probe to represent the condition of materials; and (3) output means *406 coupled to the admittance responsive network for varying the signaling current in response to the condition of materials. Id. at column 26, lines 64-68; column 27, lines 1-3.
Magnetrol's KOTRON Two-Wire Level Transmitter comprises a probe electrode adapted to sense the condition and corresponding admittance of materials, an admittance responsive network coupled to the probe to represent the condition of materials and an output circuit for varying the signaling current in response to the condition of materials. The transmitter is used in conjunction with a twenty-four volt DC (direct current) power source and a load at one location and the remote transmitter at another location. The two are interconnected by a pair of wires carrying an output of four to twenty milliamps.[13]See D.App. 6.
In support of its assertion that Magnetrol's transmitter literally satisfies every limitation of at least claim 1 of the '834 patent, Drexelbrook submitted an affidavit of David Little, Drexelbrook's senior development engineer ("Little Aff."). The affidavit contains a chart purporting to show the literal correspondence of claim 1 of the '834 patent with the Magnetrol transmitter. Little Aff. at 2.
Magnetrol offered no substantive evidence to rebut Drexelbrook's argument of literal infringement. Instead, Magnetrol asserts that each element of claim 1 of the '834 patent is not literally present in Magnetrol's transmitter because the Magnetrol transmitter does not itself include a power supply, load or transmission line wires.
Drexelbrook responds by arguing that the Magnetrol transmitter is actually a component part sold by Magnetrol along with other parts (such as the power supply, load and transmission wires) that are connected to form two-wire transmitter systems that infringe claim 1 of the '834 patent. Drexelbrook further asserts that the sensing probes in the KOTRON transmitter are identical to the admittance sensing probes called for in claim 1 of the '834 patent. Therefore, Drexelbrook concludes, Magnetrol is directly infringing the '834 patent by making, using and selling two-wire transmitter systems that infringe claim 1, and is at least contributorily infringing or inducing others to infringe by selling the transmitter itself.
Drexelbrook's argument is grounded in 35 U.S.C. § 271,[14] which makes an infringer potentially liable for direct infringement, inducement to infringe or contributory infringement. Contributory infringement cannot exist in the absence of a showing of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 345, 81 S. Ct. 599, 604, 5 L. Ed. 2d 592 (1961) (Aro I); Preemption Devices, Inc. v. Minnesota Mining & Mfg. Co., 803 F.2d 1170, 1173 (Fed.Cir.1986). Magnetrol has offered no evidence, nor suggested the existence of any evidence, to rebut Drexelbrook's showing of direct infringement. Evidence adduced in discovery shows that Magnetrol has apparently sold infringing two-wire transmitter systems. P.App. at 196-200, 236-334 (showing sale by Magnetrol through its representatives to E.I. du Pont de Nemours & Co. of parts that aggregate two-wire admittance monitoring systems). It appears that *407 Magnetrol has thus directly infringed claim 1 of the '834 patent.
To establish contributory infringement under 35 U.S.C. § 271(c), one must establish that an alleged contributory infringer knew that the combination for which his components were especially made was both patented and infringing. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488-91, 84 S. Ct. 1526, 1533-35, 12 L. Ed. 2d 457 (1964) (Aro II); Preemption Devices, 803 F.2d at 1174. The intended meaning of "knowing" under section 271(c) is not entirely clear. See 4 Chisum § 17.03[2], at 17-38.1-40. The knowledge requirement does not include legal conclusions as to the validity and scope of the patent. Nordberg Mfg. Co. v. Jackson Vibrators, Inc., 153 U.S.P.Q. 777, 784 (N.D.Ill.1967), rev'd on other grounds, 393 F.2d 192 (7th Cir.1968). It seems likely that Drexelbrook will be able to establish the requisite knowledge on the part of Magnetrol. Since 1980, all Universal two-wire transmitters sold by Drexelbrook have been marked with the '834 patent number. P.App. at 174. Magnetrol used Drexelbrook's specifications in designing the KOTRON two-wire transmitter. P.App. at 359-364. Prior to developing its KOTRON two-wire transmitter, Magnetrol had customers ask for two-wire transmitters like those produced by Drexelbrook. P.App. at 372. There is thus a strong case that Magnetrol was well aware of the similarity between its product and the system covered by the '834 patent.
The statute further requires a showing that a component especially made or adapted for use in the patented combination is not a staple article suitable for substantial noninfringing use. Aro II, 377 U.S. at 485-88, 84 S.Ct. at 1531-33; Preemption Devices, 803 F.2d at 1174. There is evidence that the Magnetrol KOTRON transmitter has no practical use other than as part of this infringing system. P.App. at 370-71. The transmitter is, then, a non-staple article. The Court thus finds it probable that Drexelbrook will succeed in proving that the Magnetrol transmitter has been sold for use in an infringing system.
Drexelbrook also has a reasonable likelihood of success on the merits of its argument as to inducement under section 271(b). Sections 271(b) and 271(c) are closely related. 4 Chisum § 17.04[3], at 17-46-48 ("complementary provisions"). Although section 271(b) does not contain the word "knowing," the case law and legislative history uniformly assert this requirement. Water Technologies Corp. v. Calco, Ltd., 850 F.2d 660, 668 (Fed.Cir. 1988). While proof of intent is necessary, direct evidence is not required; rather, circumstantial evidence may suffice. Id. The requisite intent may be inferred from all the circumstances. Id. at 669.
The circumstances here support such an inference. As noted above, Magnetrol's KOTRON two-wire transmitter has no practical use other than as part of a system. Magnetrol intends that the transmitter be installed in admittance-monitoring, two-wire systems. P.App. at 371, 390. Moreover, it sells the power supply, probe and load accessories for use in conjunction with the transmitter. Id. at 391-93. This creates at least a reasonable likelihood that Drexelbrook will be able to prove inducement to infringe.
In light of Magnetrol's failure to rebut Drexelbrook's evidence of infringement, the Court concludes that Drexelbrook has made a sufficient showing of likely success on the issue of infringement.
B. Irreparable Harm
Drexelbrook has not shown that Magnetrol will fail to prove by clear and convincing evidence that any claims of the '834 patent are invalid. The Court therefore cannot presume irreparable harm, and Drexelbrook must make an independent showing of irreparable injury. See Smith Int'l., 718 F.2d at 1580-81; Fluke Mfg., 5 U.S.P.Q.2d at 1662.
Drexelbrook has not asserted that Magnetrol is financially unreliable and cannot respond in damages. While Magnetrol's apparent ability to compensate Drexelbrook for any future infringement is a factor weighing against an injunction, it is not dispositive. See Roper, 757 F.2d at 1269 n. 2 (rejecting view that alleged infringer's *408 ability to compensate ends court's inquiry).
The focus on the irreparable injury inquiry is harm that is impossible to measure in monetary terms. See Atlas Powder, 773 F.2d at 1233. Drexelbrook has alleged that its damages are not fully measurable in monetary legal remedies because its market share and customer base are being eroded by Magnetrol's continued infringement. More than one third of Drexelbrook's total sales is in two-wire transmitter systems covered by claim 1 of the '834 patent. P.App. at 174. Drexelbrook is the industry leader and is "number one [in] admittance [monitoring]." P.App. at 365. Conversely, Magnetrol's chief business is in the mechanical control field. P.App. at 367. However, the two companies compete "head-to-head" in the marketplace for two-wire systems. Id. at 366. According to Maltby, Drexelbrook has lost "significant two-wire transmitter system sales" to Magnetrol. P.App. at 169. The specifics of these alleged lost sales, and their quantity and dollar value, has not been substantiated, though.
In light of the comparative importance of admittance monitoring devices to Drexelbrook's business, the evidence at least suggests irreparable harm to Drexelbrook. However, because of the cloud surrounding the validity of the '834 patent and the fact that the evidence of irreparable injury is based on inference, the Court finds that Drexelbrook has not yet made an independent showing of irreparable injury.
C. Balance of Hardships and the Public Interest
In considering the balance of hardships, the Court must balance the harm that will occur to the moving party from the denial of the preliminary injunction with the harm that the non-moving party will incur if the injunction is granted. Hybritech, 849 F.2d at 1457. This balancing is within the discretion of the Court. Atlas Powder Co. v. Ireco Chemicals, 773 F.2d 1230, 1234 (Fed. Cir.1985).
The balance of equities slightly favors Drexelbrook over Magnetrol. If an injunction does not issue, then Drexelbrook may well suffer loss of profits and market share. This loss would significantly affect Drexelbrook because such a large percentage of its sales derive from systems covered by the '834 patent. P.App. at 173. Conversely, if an injunction does issue, then Magnetrol may suffer loss of profits and market share. However, the harm to Magnetrol will likely be less because two-wire admittance monitoring systems constitute a small percentage (about two percent) of Magnetrol's total sales. Reply Br. at 26 n. 13.
The focus of a district court's public interest analysis should be whether there exists some critical public interest that would be injured by the grant of preliminary relief. Hybritech, 849 F.2d at 1458. As was the case in Polaroid, the public interest in this particular industry (admittance monitoring systems) is minimal.[15]See 706 F.Supp. at 1146. However, the public does have an interest in the protection of rights found in valid patents. Id. (citing Smith Int'l., 718 F.2d at 1581). If it were reasonably clear that the '834 patent was valid, then the public interest would likely weigh in favor of Drexelbrook. Because the validity of the '834 patent is anything but clear at this stage of the litigation, the public interest does not favor Drexelbrook over Magnetrol.
III. CONCLUSION
Weighing the four factors of the preliminary injunction test against one another, the Court finds that it cannot issue a preliminary injunction against defendant for patent infringement at this time. This conclusion is based primarily on Drexelbrook's failure to convince the Court that it has a reasonable likelihood of success on the merits regarding patent validity, specifically nonobviousness. Plaintiff's motion is therefore denied. The Court will enter an Order in accordance with this Opinion.
NOTES
[1] Admittance is an electrical characteristic that combines capacitance and resistance. It is the ratio of a voltage to a current, and is measured in mhos. American Heritage Dictionary 17 (new college ed. 1976). Capacitance is the ratio of charge to potential on an electrically charged, isolated conductor. Id. at 199. Resistance is the opposition offered by a substance or circuit to the passage of electric current. Id. at 1106.
[2] The resistance between the probe electrode and the grounded vessel is the "shunt resistance."
[3] See Defendant's Appendix 6 ("D.App."). For a further discussion of Magnetrol's KOTRON Two-Wire Level Transmitter, see infra at 20.
[4] The statute states in relevant part:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
35 U.S.C. § 103.
[5] The publication cited by Magnetrol is Marsh, "Two-Frequency Oscillator Detects Level of Liquid", Electronics, March 20, 1967, at 90. D.App. 3(a). The six patent references are as follows: U.S. Patent No. 3,646,538 ("Frick patent") (D.App. 3(b)); U.S. Patent No. 3,051,932 ("Cressey patent") (D.App. 3(c)); U.S. Patent No. 3,675,122 ("Rose patent") (D.App. 3(d)); U.S. Patent No. 3,786,345 ("Mikkelsen patent") (D.App. 3(e)); U.S. Patent No. 3,683,344 ("Saito patent") (D.App. 3(f)); U.S. Patent No. 3,680,384 ("Grindheim patent") (D.App. 3(g)).
[6] These two patents, both of which were assigned to Drexelbrook, are U.S. Patent No. 3,781,672 (the "'672 patent") and U.S. Patent No. 3,706,980 (the "'980 patent"). They are referred to collectively here as the "Maltby patents."
[7] The Shawhan patent was cited by the Examiner and overcome during the prosecution history. It shows a five-wire, continuous capacitive level measuring system. D.App. 2(c). The Examiner initially rejected claim 1 of the '834 patent as obvious in light of the Shawhan patent, but the '834 applicant overcame this rejection by noting the differences between the two-wire and five-wire systems.
[8] Drexelbrook admits as much. It states that the two prior-art Maltby patents and the Shawhan patent claim admittance sensing probes similar to that claimed in the '834 patent. Reply Br. at 9. Also, Drexelbrook does not dispute that, except for the Marsh publication, each of the new references cited by Magnetrol disclose a two-wire transmitter system. Id. at 7.
Drexelbrook argues that the the Maltby patents are distinguishable in that they disclose admittance responsive circuitry coupled to an admittance sensing probe at the same location as the power supply and load, as opposed to another location, as disclosed in the '834 patent.
[9] The Court is cognizant of the Federal Circuit's admonition against using hindsight to reconstruct the claimed invention from prior art in light of the invention before the court and the testimony of experts. See Uniroyal, 837 F.2d at 1051. "The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time...." Id. at 1050-51 (quoting Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1138 (Fed.Cir.1985)).
[10] The Court first learned of this assertion at oral argument, when defense counsel made the Fay patent part of the record. Counsel for Magnetrol had informed counsel for Drexelbrook that Magnetrol would make this assertion, thus allowing Professor Moore time to prepare his affidavit on the issue of anticipation.
[11] That is not to say that the Court requires a "final adjudication," "full trial" or proof "beyond question" on the issue of validity to support the issuance of a preliminary injunction. The Court is cognizant that it is considering a request for preliminary, not permanent, relief. See Atlas Powder Co. v. Ireco Chemicals, 773 F.2d 1230, 1233 (Fed.Cir.1985).
Nevertheless, something more than what is present in the record here is necessary to support a preliminary injunction. "The presumption of validity is too slim a reed" upon which to support a finding of validity. Mayview Corp. v. Rodstein, 480 F.2d 714, 718 (9th Cir.1973); Jenn-Air Corp. v. Modern Maid Co., 499 F. Supp. 320, 323 (D.Del.1980). Drexelbrook has not carried its burden of producing sufficient independent evidence of validity.
[12] This holding should not be construed as a finding of invalidity of the '834 patent by the Court. Substantive issues, such as validity and infringement, are not raised for final resolution by motions for preliminary injunctions. Consolidated Medical, 821 F.2d at 647 (quoting Roper, 757 F.2d at 1271)).
[13] A milliamp is one-thousandth of an ampere, a standard unit for measurement of electric current. American Heritage Dictionary 44 (new college ed. 1976).
[14] The statute states in pertinent part:
(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use, shall be liable as a contributory infringer.
35 U.S.C. § 271.
[15] Two-wire capacitance (admittance) devices, which are the subject of the '834 patent, account for less than five percent of all continuous level measurement systems sold. D.App. 4, at 2. Contrastingly, differential pressure sensors make up about eighty percent of the continuous liquid level measuring systems used in the United States. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1270175/ | 216 N.W.2d 162 (1974)
191 Neb. 539
Rosalie BRYANT, Appellee,
v.
Robert L. BRYANT, Appellant.
No. 39245.
Supreme Court of Nebraska.
March 21, 1974.
Andrew J. McMullen, Kearney, for appellant.
Mitchell & Beatty, John C. Mitchell, Timothy D. Whitty, Kearney, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and BUCKLEY, District Judge.
BOSLAUGH, Justice.
This is an appeal from a summary judgment denying the defendant's petition for modification of an alimony judgment. The petition for modification alleged the remarriage of the plaintiff and other changes in circumstances.
The parties were divorced on July 21, 1965. The decree approved a property settlement agreement between the parties which was incorporated by reference in the decree. The agreement provided the defendant would pay $150 per month to the plaintiff for a period of 8 years commencing the month following the date all the children of the parties attained the age of 18 years, married, died, or became self-supporting. The question presented is whether the alimony award was subject to modification.
An unqualified allowance of alimony in gross made before July 6, 1972, whether payable immediately in full or periodically in installments, and whether intended *163 solely as a property settlement or as an allowance for support, or both, is not subject to modification. Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921; Ball v. Ball, 183 Neb. 216, 159 N.W.2d 297; Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116. The present statute, section 42-365, R.S.Supp., 1972, is not applicable to judgments entered prior to July 6, 1972. Karrer v. Karrer, supra.
There was no provision in the decree or the property settlement agreement to indicate the payments due the plaintiff were intended as anything other than "alimony in gross." There was no provision regarding the death of the parties or the remarriage of the plaintiff. The trial court made no reservation of the power to modify. We conclude the award was not subject to modification.
The judgment of the District Court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
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