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https://www.courtlistener.com/api/rest/v3/opinions/1371510/	85 Cal. App. 2d 394 (1948) In re CARL LEE DYER, for Writ of Coram Nobis. CARL LEE DYER, Appellant, v. ELFIDA HILL, Respondent. Civ. No. 13597. California Court of Appeals. First Div., Div. One. May 10, 1948. Waldo F. Postel for Appellant. John L. Garaventa for Respondent. WARD, J. This is an appeal from an order of the superior court denying appellant's motion for a "writ of coram nobis." The controversy grows out of a marriage and subsequent divorce. Chronologically the following facts appear: The petitioner married respondent, whose age at the time appears in the record to have been 17 years, on August 5, 1936; they separated on August 8, 1936; as issue of the marriage there is one child; a divorce action was filed by respondent and served upon the husband on June 22, 1938; defendant defaulted. The court on July 20, 1938, granted an interlocutory decree of divorce to the wife on the ground of wilful desertion and ordered the husband to pay $20 per month for the support of their child, whose custody was awarded to the mother; August 2, 1939, the final decree was filed; December 20, 1941, the parties stipulated, with the approval of the court, that the order providing for payments for the child's support during such time as the father might remain in the armed forces of the United States, should be vacated; the record indicates that 396 the father was released from the United States Navy in September, 1945. In an affidavit signed by the mother on June 3, 1947, it is averred that there is due and owing from the father for the support and maintenance of the minor child the sum of $870. In the present proceeding an application for a "writ of coram nobis" dated April 10, 1947, is in the form of a notice that on a certain day and hour in the designated court the father would move said court for a "writ of coram nobis" to set aside that portion of the interlocutory and final decree which ordered him to pay for the maintenance and support of the child. The notice asserted as a ground for the motion that the father, petitioner herein, was not in fact the father of the child, and certain affidavits were filed in support of his "petition." Portions of the father's affidavit, dealing with details not previously mentioned, set forth the following: "Affiant alleges that he married the said plaintiff because at said time the said plaintiff was pregnant, and affiant herein was accused by said plaintiff and the District Attorney of the County of Alameda, State of California, of being the father of the said unborn child. Affiant alleges that he married the said plaintiff solely by reason of threats of criminal prosecution if he did not do so, and but for said threats he would not have married the said plaintiff." "Affiant alleges that at the time of the said marriage said plaintiff was a minor, and plaintiff threatened to prosecute for rape if he did not marry her, and at said time informed affiant that the only reason she wanted the said marriage ceremony performed was to have a name for the child." "Affiant alleges that prior to the said marriage affiant received a visit from the Sheriff of the County of Alameda, State California, who came to the home of affiant and threatened said affiant with arrest and informed affiant that he must go to the District Attorney's office in Oakland, Alameda County, California, to face criminal charges. At said time, plaintiff was eighteen (18) years of age." "Affiant alleges that at the time of the marriage of the parties hereto, affiant was also a minor, and in that behalf alleges that he was born on the 28th day of July, 1916." "Affiant alleges that at the time of the said marriage and during all of the time of the divorce proceedings and up to the physical examination of affiant by Dr. Lewis Michelson, 397 as hereinafter set forth, affiant believed that he was the father of said child." "Affiant alleges that after the said marriage neither of the parties hereto cohabited, and on or about the 8th day of August, 1936, separated and ever since said separation have lived separate and apart." "Affiant alleges that prior to the commencement of said action for divorce, to wit: on May 22, 1937, affiant was arrested for alleged failure to provide for the minor child of plaintiff, and affiant spent thirteen days in jail, and by reason of threats and fear entered a plea of guilty and subsequently and on the 4th day of June, 1937, affiant was given two years' probation and ordered to report to the probation officer and pay not less than $15.00 per month for the support of said child. ..." "Affiant alleges that by reason of the threats made against affiant, his arrest, his being in jail, and all of the circumstances set forth herein, affiant did not contest the said action for divorce. ..." "Affiant alleges that he did not contest or appear in said action because of his fear of criminal prosecution and jail, and for further reason that he was still on probation and believed that if he took any step contrary to the wish and will of said plaintiff, either in regard to said divorce proceedings or the support of said child, it would be held a violation of said probation, and that he would be forthwith thrown into jail. ..." "Affiant alleges that at all the dates and times herein above mentioned he believed the accusation that he was the father of said child." The affiant thereupon reproduced certain averments contained in an affidavit of a duly licensed physician and surgeon. The appellant claims that he could not have been the father of the child, and that to compel him to support the said child is unconscionable. The affidavit of the physician and surgeon contained the following: "Affiant alleges that after a thorough physical examination of said Carl Lee Dyer, etc., and a microscopical examination of the semen, as well as the findings at operation he is of the opinion and therefore avers that said Carl Lee Dyer, etc. could never have impregnated a woman, for the reason that it would have been impossible, as most of the tube that provides the passageway for the transport of the spermatozoa from the testicles to the penis in the physical 398 structure of said Carl Lee Dyer, etc. is congenitally absent and never developed. At operation this anomalous condition was found to be present on both sides." "Affiant alleges that the said physical condition and said impossibility of impregnating a woman existed in said Carl Lee Dyer, etc., from birth and has been continuous up to the present time." It was stipulated by the respective parties that the motion for "writ of coram nobis" be continued four weeks. At that time the mother filed an affidavit to the effect that she was born May 28, 1919; that the appellant was born July 28, 1914; that a marriage ceremony was performed; that a child was born; that a divorce complaint was filed by her; that an interlocutory decree was made and entered on the grounds of wilful desertion, which provided that the custody of the child be awarded to the mother and that the appellant pay $20 per month for the support of the child. A final decree was filed containing similar provisions. The dates of filing the various pleadings do not appear to be questioned. There is an averment in the mother's affidavit that at the time she married the petitioner herein she was pregnant and that the pregnancy was caused by petitioner; that prior to such conception she had never had sexual intercourse with any man. Further, it is alleged that petitioner prior and subsequent to the birth of the child in question was physically capable of being the father of a child. The mother denied that the marriage was the result of threatened criminal proceedings, coercion or duress on her part or of any person, and that petitioner heretofore had "always admitted and acknowledged that he was the father of the [child]"; that for several months after the interlocutory decree petitioner had paid for the support and maintenance of the child, and that in any subsequent support proceedings petitioner was not threatened but merely directed to pay a stated amount for its support. During all of the period, namely, from August 1936 until December 1946, no suggestion was made that petitioner herein was not the father of the child. Respondent's affidavit further sets forth that petitioner did not exercise "in due time all reasonable diligence" in ascertaining "whether he was physically capable of being the father of a child" and that petitioner "is not entitled to a writ of coram nobis at this late date." 399 The record shows that "Oral argument is presented by respective counsel and the petitioner's memo of additional points and authorities is entered and filed." Upon submission of the matter the court "orders that the motion for writ of coram nobis is denied." [1] The writ of error coram nobis is issued to correct an error of law that is based upon some issue of fact. (People v. Reid, 195 Cal. 249 [232 P. 457, 36 A.L.R. 1435]; People v. Darcy, 79 Cal. App. 2d 683 [180 P.2d 752]; People v. Dale, 79 Cal. App. 2d 370 [179 P.2d 870].) Whatever may be said about the inception of the writ, the recognized present purpose is to correct an error of fact which was unrecognized prior to the final disposition of the proceeding. It is not intended as a means of revising findings based on known facts, or facts that should have been known by the exercise of ordinary and reasonable diligence. (People v. Reid, supra; People v. Mooney, 178 Cal. 525 [174 P. 325]; People v. Cabrera, 7 Cal. 2d 11 [59 P.2d 804]; In re Paiva, 31 Cal. 2d 503 [190 P.2d 604].) To correct an error of fact it is often necessary to modify a legal ruling, order, judgment or decree, but it is the fact and not the law that is the subject of change. [2] For many years reviewing courts of this state have assumed that a proceeding in the nature of coram nobis is appealable. In recent years it has been decided that an order made by a trial court for relief in the nature of the writ of error coram nobis is appealable. In People v. Gilbert, 25 Cal. 2d 422 [154 P.2d 657], the plaintiff, the "People," appealed. In that case it is said (p. 444): "Defendants' contention that the People have no right of appeal from the order of the trial court setting aside or modifying its previous judgments of death is without merit. The question was before this court in People v. Lumbley, supra, 8 Cal. 2d 752, 761 [68 P.2d 354], and was decided adversely to defendants' position. The effect of the order here appealed from was to modify substantially the judgments originally entered. Such an order, obviously, is one 'made after judgment, affecting the substantial rights of the people' and is within the purview of section 1238(5) of the Penal Code." The Gilbert case refers to the right of the People in a criminal case to appeal. In re Paiva, supra, was "in the nature of a writ of error coram nobis," in which defendant appealed. Using People v. Gilbert, supra, and other cases as authority it was held that the defendant had the right of appeal. A 400 defendant's right to appeal in a criminal case generally is based on Penal Code, section 1237, subdivision 3, which provides that "An appeal may be taken by the defendant: ... From any order made after judgment, affecting the substantial rights of the party." This is based upon the assumption, so far as a writ of error coram nobis is concerned, that a lower court has changed or refused to change some order based upon facts not known at the time of trial. People v. Gilbert, supra, involved an attempt to modify to life imprisonment a judgment imposing the death penalty. This was a legal question based upon facts. At page 439 the court said: "The People, with more regard for established processes, classify the defendants' motions as constituting applications for relief in the nature of writs of error coram nobis. We are in accord with this classification." In re Paiva raised the question whether a party appealing from the denial of a writ of error coram nobis, heard approximately 10 years or more after conviction, was entitled to be furnished a transcript and legal record. In the original Paiva decision the record shows that Paiva was convicted of two charges of murder and one charge of rape. In the present case the purpose is to set aside that portion of the interlocutory and final decrees directing the father to pay a monthly sum for the support and maintenance of the child. The application is based upon a claim that a certain fact, assumed during the trial to exist, had in fact no such existence. [3] The writ of error coram nobis may be used following judgment in a civil proceeding. In Phelan v. Tyler, 64 Cal. 80, 82-83 [28 P. 114], it is said: " '... and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal if the fact of the death appears upon the record, or by writ of error coram nobis if the fact must be shown aliunde.' (Freeman on Judgments, 153.)" Hence a proceeding for writ of error coram nobis constitutes a novel means of attacking a judgment. In King v. Superior Court, 12 Cal. App. 2d 501, 511 [56 P.2d 268], it is said: "The usual and ordinary ways in which a judgment may be set aside by a court rendering it are: (1) by motion for new trial; (2) by motion made in due time under section 473 of the Code of Civil Procedure; (3) by motion at any time when the judgment is void on its face; (4) by suit in equity where the judgment is regular 401 in form but void for extrinsic fraud or other proper causes." The writ of error coram nobis should not be used if some other remedy is available. It could become a hindrance to the disposition of problems of merit were trifling and frivolous questions only presented. In People v. Darcy, 79 Cal. App. 2d 683, 691-692, 693 [180 P.2d 752], the court said: "Appellant cites fourteen California cases under the general heading 'The following citations support appellant's contention that he was entitled to the writ of error coram nobis and/or a new trial' without making any particular point, or showing how or in what manner they lend support to his position. None of them supports his contention. Ten of them were cases where petitions to set aside judgments of conviction or for writs of error coram nobis were denied, and such denials were affirmed (People v. Mooney, 178 Cal. 525 [174 P. 325]; People v. Davis, 187 Cal. 750 [203 P. 990]; People v. Schwarz, 201 Cal. 309 [257 P. 71]; People v. Mendez, 28 Cal. 2d 686 [171 P.2d 425]; People v. Black, 114 Cal. App. 468 [300 P. 43]; People v. Deutsch, 16 Cal. App. 2d 121 [60 P.2d 155]; People v. Kretchmar, 23 Cal. App. 2d 19 [72 P.2d 243; People v. Harincar, 49 Cal. App. 2d 594 [121 P.2d 751]; People v. Lewis, 64 Cal. App. 2d 564 [149 P.2d 27]; People v. Egan, 73 Cal. App. 2d 894 [167 P.2d 766]). One of them (In re Schenk, 61 Cal. App. 2d 168 [142 P.2d 343]) was habeas corpus, not coram nobis, where the writ was discharged. One (People v. Egan, 135 Cal. App. 479 [27 P.2d 412]) involved the dismissal of an appeal. One (Austin v. Lambert, 11 Cal. 2d 73 [77 P.2d 849, 115 A.L.R. 849]) involved the constitutionality of section 170.5, Code of Civil Procedure relating to 'peremptory challenges' of judges, and one (People v. Gilbert, 25 Cal. 2d 422 [154 P.2d 657]) reversed an order which attempted to modify to life imprisonment judgments imposing the death penalty, which judgments had been affirmed on appeal." "All the cases point out that the scope of the writ is extremely narrow and that it is anything but a catch-all or omnibus remedy." (See 97 Am.St.Rep., pp. 369-370; 49 C.J.S. 570; Williams v. Yelvington, 103 Fla. 145 [137 So. 156].) Coram nobis is not generally used to retry issues of a case previously determined (People v. Reid, supra), but is available merely to declare as false a fact previously decided to be true. The appellant father contends "That the petition or motion for writ of coram nobis sets forth sufficient facts which if true entitled appellant to the granting of the writ and that 402 in view of the fact that no demurrer or similar pleading was filed, a hearing should have been had upon the issues. The truth or falsity of the affidavits submitted has never been determined." It was held in People v. Block, 134 Cal.App, 217, 218 [25 P.2d 242]: "It is contended by appellant that the various affidavits above mentioned had the effect merely, pro and con, of pleadings, as in a civil action, and that the trial court erred in making its order without taking evidence under the issues claimed to have been presented by them. We are referred, however, to no authority announcing such a doctrine. On the contrary, the opinion in People v. Perez, 9 Cal. App. 265 [98 P. 870], plainly shows that it is proper to hear such an application on affidavits." Considering the circumstances of the marriage herein, the youth of the appellant and the period of his service in the army, this court does not find it necessary to support its conclusion by giving application to the defense of laches in order to sustain the trial court, though the affidavit of the mother is perhaps sufficient to present that issue. [4] The writ, like other writs, must be in writing, but the application therefor may be by formal petition, in which case the usual pleadings are available to respondent to be followed by a hearing appropriate to the issues raised. (49 C.J.S. 568.) It appears that in many instances the application has been by notice to the parties interested that on a specified day and hour in a certain tribunal having jurisdiction of the subject matter the applicant will seek the relief by issuance of the writ to right the alleged wrong. The application may be based upon the record or supported by affidavits. In the present proceeding the appellant proceeded by notice of motion and affidavits. When affidavits are relied upon to obtain the issuance of a writ of error coram nobis, reply affidavits if worthy of belief may be sufficient, unless the court deems otherwise, upon which to base denial of the application. (People v. Block, supra.) [5] It is not necessary to restate the substance of the mother's affidavit or to specifically relate all of the inferences that the trial court could draw from the record. The affidavits are all the evidence that may be considered on this appeal. By its order it must be assumed that the trial court found the affidavits filed by the appellant to be untrue. (People v. Block, supra.) Under such conditions this court is not in a position to order a reversal. It is said in Brainard v. Brainard, 403 82 Cal. App. 2d 478, 480 [186 P.2d 990]: "In all matters in which an issue is tried upon affidavits it is the rule that those favoring the contentions of respondent establish not only the facts stated therein but also all facts which may be reasonably inferred therefrom. (Doak v. Bruson, 152 Cal. 17, 19 [91 P. 1001]; Kettlle v. Kettelle, 110 Cal. App. 310, 313 [294 P. 453].)" The order appealed from is affirmed. Peters, P. J., and Bray, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371551/	86 Cal. App. 2d 13 (1948) GREGORY A. DOBSON, Appellant, v. DOROTHY DOBSON, Respondent. Civ. No. 16208. California Court of Appeals. Second Dist., Div. Two. June 3, 1948. John O. Akin for Appellant. No appearance for Respondent. McCOMB, J. From a decree denying plaintiff's application for an annulment of his marriage he appeals. The undisputed facts are these: Plaintiff and defendant participated in a ceremony of marriage in Las Vegas, Nevada, on Sunday, March 16, 1947, while plaintiff was under the influence of intoxicating liquor and so inebriated that he did not understand or know the nature of the ceremony or its legal effect. On Tuesday, March 18, 1947, while still suffering from the effects of intoxication, defendant advised plaintiff of the marriage, and on Wednesday, March 19, 1947, having fully recovered from his inebriation, he left defendant and has not since cohabited with her. Plaintiff's testimony was corroborated by Richard T. Scott. There was no other evidence presented to the trial court. Upon this state of the record, the trial court denied the annulment stating in effect that he did not believe the plaintiff's testimony. [fn. ] This is the sole question presented for our determination: Was the trial judge correct in rejecting the uncontradicted, unambiguous, unimpeached, plain and probable testimony of plaintiff and his corroborating witness? [1] This question must be answered in the negative and is governed by this rule: Testimony which is not inherently improbable and is not impeached or contradicted by other evidence must be accepted as true by the trier of fact. (Shepard v. Shepard, 65 Cal. App. 310, 313 et seq. [223 P. 1012]. See also Gomez v. Cecena, 15 Cal. 2d 363, 366 [101 P.2d 477].) [2] Applying the foregoing rule to the facts of the instant case, it is apparent that the trial judge was in error in arbitrarily refusing to accept the testimony of plaintiff as true. Such testimony was uncontradicted, unambiguous, unimpeached and plain. The testimony was also not inherently improbable. It is a matter of common knowledge that occasionally 15 parties submit to a marriage ceremony when one of the persons is under the influence of an intoxicating beverage to the extent that such person is of unsound mind and does not know what is taking place, thus being unable to enter into a contract. (McNee v. McNee, 49 Nev. 90 [237 P. 534]. See also cases cited in 28 A.L.R. (1924) p. 648.) In such case the intoxicated participant is entitled to have the marriage annulled. (Dunphy v. Dunphy, 161 Cal. 380 [119 P. 512, Ann. Cas. 1913B 1230, 38 L.R.A.N.S. 818].) In view of the evidence it was the duty of the trial court to find that plaintiff at the time of the purported marriage ceremony was so inebriated that he did not know what he was doing and to award him an annulment of the purported marriage. For the foregoing reasons, the judgment is reversed and the trial court is directed to enter a decree in accordance with the prayer of plaintiff's complaint. Moore, P. J., and Wilson, J., concurred. "I am satisfied that there isn't any minister in the City of Las Vegas or anywhere else that is ordained, that will marry a drunken person that is drunk to that extent." NOTES [fn. ] . The trial judge stated:	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371629/	216 Ga. 27 (1960) 114 S.E.2d 370 SPRATLIN et al. v. SPRATLIN, Executor, et al. 20844. Supreme Court of Georgia. Argued April 11, 1960. Decided May 5, 1960. James W. Arnold, Guy B. Scott, for plaintiffs in error. Howell C. Erwin, Jr., Erwin, Birchmore & Epting, contra. ALMAND, Justice. James E. Spratlin and his wife, Gussie Spratlin, filed their suit against James E. Spratlin and W. K. Carithers, executors of the will of the late Martha Winn Dudley, and three named persons as devisees under the will of Martha Winn Dudley, it being alleged that the executors had accepted the trust and qualified, the will having been probated. The petition alleged that in September, 1956, the testatrix made an 28 agreement with the plaintiffs, that, if they would come to her home, live with her, nurse her, and look after her household affairs until her death, she would make a will devising to them her residence at 670 W. Broad Street, Athens, Georgia. It was further alleged that though they fully complied with the agreement by moving into the home of the testatrix, she breached the contract by devising her residence to the three named defendantdevisees. The prayers were that the defendant-executors be required to specifically perform the contract by deeding the property to the plaintiffs. The defendants demurred generally to the petition on the grounds: (a) that the plaintiff, James E. Spratlin, having accepted the trust by qualifying and acting as one of the executors of the will of the testatrix, is estopped from setting up title or claim to the property adverse to his trust under the will; and (b) that James E. Spratlin as an individual cannot maintain an action against himself as an executor under the will of Martha Winn Dudley. The court sustained these demurrers and dismissed James E. Spratlin as a party plaintiff. The case is here on a bill of exceptions assigning error on this order. The court properly sustained the demurrers and dismissed James E. Spratlin as a party plaintiff. Code § 38-117, which provides that "Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care and are estopped from setting up title adverse to their trust," has been applied on several occasions where executors and administrators have sought as individuals to sue themselves in their capacity as executors and administrators and set up claims adverse to the interests of the estate they are administering. In Hardeman v. Ellis, 162 Ga. 664 (4) (135 S.E. 195), it was held that one who had qualified as an executor, taken charge of the estate, and after administering the estate for two years resigned his trust, was estopped thereafter from suing the administratrix of the testatrix's estate and attempting to enforce a contract with the testatrix by claiming the entire estate. It was there said (pp. 685, 686): "Where one is in a situation in which 29 he may elect between two inconsistent positions or proceedings, the choice of his position or proceeding must be made before bringing suit. He can not bring either action without selecting and determining to accept and occupy a position consistent with that action or position and inconsistent with the other. If with knowledge he chooses the position he will occupy, it would be trifling with the court to allow a change. Since the choice is made and one of the alternative positions or proceedings has been adopted, the act operates at once as a bar to the other and the bar is final and absolute . . . By probating the will of testatrix, which disposed of a large estate, and by qualifying as her executor to dispose of the same in accordance with her directions contained therein, plaintiff in effect represented to the court of ordinary that testatrix died seized and possessed of an estate which she had undertaken to dispose of by her will. By qualifying as her executor he became bound to administer her estate in conformity to directions given in her will. At the time he probated her will and qualified as her executor he was fully aware of his rights under the contracts with her and her husband which he seeks to have specifically performed in the present proceeding. He was fully aware that if said contracts were in fact made and were specifically performed, the testatrix had no estate of which she could dispose by will. Under these circumstances the plaintiff was put to his election of rights, positions and proceedings. He had to make choice of rights, proceedings and positions. He had to choose between probating the will, accepting the office of executor, of executing the will and of accepting the benefits accruing to him under this instrument, and the rights accruing to him under the enforcement of said contracts. These positions were inconsistent. His election to proceed under the will concludes him from undertaking to have these contracts enforced. So we are of the opinion that the plaintiff, in determining to probate this will, in qualifying as executor and in executing the same in part, became estopped, `upon grounds of public policy and good faith,' from asserting his rights under the contracts sought to be enforced in this case." See also Crummey v. Crummey, 190 Ga. 774 (10 S.E.2d 859), and Parnelle v. Cavanaugh, 191 Ga. 464 (12 S.E.2d 877), where the rule was applied to administrators. *30 The plaintiff in error contends that the ruling in Hardeman v. Ellis, 162 Ga. 64, supra, is not applicable here because (a) his action is one seeking redress as a creditor of the testatrix; (b) he and his wife do not claim the entire estate of the testatrix; and (c) the rule is not applicable where there is more than one executor. None of these grounds is valid. The plaintiffs do not seek a money judgment against the estate, but seek to require the defendant executors to convey the property to them. Whether the plaintiffs seek to recover all or a part of the estate is immaterial for the reason that the claim of James E. Spratlin as an individual is against himself as an executor, and therefore is inconsistent with and adverse to his duties as a trustee. As pointed out in the unanimous opinion of this court in Crummey v. Crummey, 190 Ga. 774, supra, in the majority holdings in MacDougall v. National Bank of Columbus, 150 Ga. 579 (2) (104 S.E. 630), and McFadden v. Dale, 155 Ga. 256 (1a) (116 S.E. 596), to the effect that the rule which prohibits a person from suing himself does not apply where there are two or more executors, the principle of law which inhibits a fiduciary from claiming adversely to his trust does not appear to have been invoked, and those decisions were grounded upon other and different principles. See also Perdue v. McKenzie, 194 Ga. 356 (21 S.E.2d 705), and Williams v. McHugh, 17 Ga. App. 59 (86 S.E. 272). It was not error to sustain the demurrers and dismiss James E. Spratlin as a party plaintiff. Judgment affirmed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371600/	201 Va. 919 (1960) THOMAS PARKER v. CHARLES H. LEAVITT, CITY SERGEANT OF THE CITY OF NORFOLK, ADMINISTRATOR OF THE ESTATE OF WILLIE DAVIS, DECEASED. Record No. 5089. Supreme Court of Virginia. June 13, 1960. Calvin W. Breit (Robert S. Cohen; Amato, Babalas, Breit & Cohen, on brief), for the plaintiff in error. William L. Shapero (Maurice B. Shapero; Shapero & Shapero, on brief), for the defendant in error. Present, All the Justices. 1. Davis asked his friend Parker to drive him to the home of Davis' employer. Parker refused because he had been ordered by his doctor not to drive at the time. Davis soon returned, unable to secure transportation elsewhere, and offered to drive. Parker agreed on condition he (Parker) accompany him. On the way Davis drove at excessive speed, lost control of the vehicle and in the ensuing wreck sustained injuries causing his death. In Parker's suit against Davis' administrator for injuries received by him the jury was instructed that Parker was a guest without payment, and returned a verdict in favor of defendant. On appeal it was held, however, that Parker, as a matter of law, was not a guest without payment and was entitled to recover on a showing of simple negligence. 2. It was also error to instruct that plaintiff Parker was guilty of contributory negligence if he permitted Davis to drive with knowledge he was intoxicated. There was no evidence of intoxication on Parker's part on which to base the instruction. Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. Walter A. Page, acting judge presiding. The opinion states the case. SPRATLEY SPRATLEY, J., delivered the opinion of the court. This is an action instituted by Thomas Parker, plaintiff, against Charles H. Leavitt, City Sergeant of the City of Norfolk, Virginia, administrator of the estate of Willie Davis, deceased, to recover of the estate of the decedent damages for injuries received by the plaintiff in an automobile accident, which occurred while Davis was driving Parker's automobile, with Parker seated beside him. A jury returned a verdict in favor of the defendant on which verdict judgment was entered, and the plaintiff is here on a writ of error. The principal and controlling question is whether Parker was, under the facts herein stated, a guest without payment for transportation within the meaning of \| 8-646.1, Code of Virginia, 1950. Code \| 8-646.1 provides that: "No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or wilful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator." The following evidence was presented by witnesses introduced on behalf of the plaintiff: The accident occurred on October 13, 1957, about 2:00 p.m., on Route 650, in Princess Anne County, Virginia. On that day, Willie Davis went to the home of Parker in South Norfolk, Virginia. Davis asked Parker to drive him in Parker's car to the home of Davis' employer, so that Davis could borrow some money from his employer to pay for the admission of Davis' aunt to a hospital. Parker said that he had recently suffered an injury to his groin and had been ordered by his doctor not to drive, and that he would, therefore, be unable to comply with Davis' request. Davis left, but returned about one-half hour later, and stated that he could find no one to transport him to his employer's home. He said to Parker: "Probably one day you might have to have somebody to help you and if I could, I would do it." Parker replied: "I can't drive. How will I get you down there?" Davis said: "I can drive the car." 921 Parker said that while he had never ridden with Davis, he knew that the latter was used to driving a car, and "I permitted him to drive if I went with him. I wouldn't permit him to have the car by himself." Leroy Williams, the brother-in-law of Parker, asked if he could go with Parker and Davis, and Parker agreed that he might do so. Davis proceeded to drive the car, with Parker seated to the right of him in the front seat, and Williams in the rear seat. Parker said that Davis drove in a careful and proper manner until he came to a point near Robbins' Corner, in Princess Anne County, about 15 or 16 miles from the point where they started. Davis then increased the speed of the automobile from an estimated 40 miles per hour to an estimated 60 or 65 miles, and as a result the vehicle began "to sway and zig-zag" from the road to its right shoulder. Parker warned Davis to slow down and bring the automobile under control. Davis, however, drove faster and traveled 490 feet off the road on the right shoulder, then back on the road, then across the road to the left shoulder, and then 144 feet into an oak tree on the left side of the road. The automobile was completely demolished, and Parker received serious and permanent injuries to his neck, back and shoulder. Davis died 17 days later on October 30, 1957. Dr. C. O. Barclay, medical examiner for the city of Norfolk, said that the cause of Davis' death was "a paralysis resulting from a subluxation of the fifth and sixth cerebral vertebrae in the neck." The doctor performed no autopsy and made no other findings. No witnesses were introduced on behalf of the defendant. Davis was dead, and we are told that there were no witnesses to the accident except the plaintiff and his brother-in-law, Williams. At the conclusion of the evidence, the defendant moved to strike it on the ground that the plaintiff was a guest passenger, and no gross negligence had been shown on the part of the defendant. The motion was overruled, and the case submitted to the jury under instructions based on the theory that Parker was a guest without payment for his transportation. In Boggs Plybon, 157 Va. 30, 160 S.E. 77, decided in 1931, we said that one who undertakes a duty gratuitously should be subjected to a lesser measure of obligation than one who enters upon such an obligation for pay. Accordingly, we held that a gratuitous guest in a motor vehicle must prove gross negligence in order to recover damages for injuries caused by the owner or operator of the car. 922 Code, \| 8-646.1, enacted in 1938, Acts 1938, page 417, is a legislative codification of the gross negligence rule established in Boggs Plybon, supra. In interpreting the statute, we have heretofore, in a long line of cases, dealt only with the status of a passenger in a motor vehicle, which was being operated by the owner of the vehicle. Here we are confronted with the question of the status of Parker, the owner-occupant of the car, which was being operated by his friend, Davis. In considering that question, it is well to bear in mind that it is expressly provided that either "the owner or operator of any motor vehicle" may plead the statute as a defense. Who is a guest within the meaning of \| 8-646.1? In Restatement, Torts, \| 490, comment a, we find this definition: "* * * The word 'guest' is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return, except such slight benefits as it is customary to extend as a part of the ordinary courtesies of the road." In Webster's New International Dictionary, Second Edition, a "guest" is defined as follows: "A person entertained in one's house or at one's table; a visitor entertained without pay; hence, a person to whom the hospitality of a home, club, etc., is extended." In 60 C.J.S., Motor Vehicles, \| 399(5) a, page 1009, it is said that, in general: "A guest, within the meaning of automobile guest statutes, is one who takes a ride in a motor vehicle driven by another, merely for his own pleasure or on his own business, and without making any return or conferring any benefit on the operator thereof; and the determination of whether a particular person is a guest depends on all the circumstances." In 5A Am. Jur., Automobiles and Highway Traffic, \| 514, page 553, a "guest" is defined as follows: "A guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver, and who accepts such hospitality and takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver other than the mere pleasure of his company. A person riding in a motor vehicle is a guest if his carriage confers a benefit only upon himself and no benefit upon the owner or operator except such as is 923 incidental to hospitality, social relations, companionship, or the like as a mere gratuity. However, if his carriage contributes such tangible and substantial benefits as to promote the mutual interests of both the passenger and the owner or operator, or is primarily for the attainment of some tangible and substantial objective or business purpose of the owner or operator, he is not a guest." For further definitions, see 2 Michie Jur., Automobiles, \| 43, pages 500 et seq.; Annotation 82 A.L.R., pages 1365 et seq.; 95 A.L.R., pages 1181 et seq.; 27 Virginia Law Review, pages 559 et seq.; and XIII W. & L. Law Review, page 84. There is little disagreement among the decisions as to the general principles governing the determination of so called guest statutes. Some of the decisions have had our statute under consideration. In Lorch Eglin, 369 Pa. 314, 85 A.2d 841, Lorch, the owner of a motor car, was a passenger in his car, operated at his request by his friend, Eglin. In Virginia, south of Washington, D.C., their vehicle collided with another automobile, and Lorch, the owner of the car, was seriously injured. The trip was made by Lorch for pleasure, and for Eglin it was a business trip. Lorch agreed to pay for gas, oil and parking. In construing the Virginia guest statute, (\| 8-646.1) the Supreme Court of Pennsylvania held that Lorch was not a guest in his own car, and the Virginia statute could not be used in defense of the driver of the car. The court adopted the definition of "guest" given in Restatement, Torts, \| 490, comment a, and cited in support Gledhill Connecticut Company, 121 Conn. 102, 183 A. 379; and Anderson Burkardt, 275 N.Y. 281, 9 N.E.2d 929. In Gledhill Connecticut Company, supra, it appears that Graham and his brother-in-law, Gledhill, started on a fishing trip in a car owned by Gledhill, with Graham driving at the request of the owner. Gledhill was seated in the front seat beside Graham. As they drove along the highway, Graham lost control of the vehicle and drove at high speed against a pole on the side of the road, causing injuries to Gledhill, which later resulted in his death. In applying the Connecticut statute , which is similar to the Virginia statute, the court held that Gledhill was not a guest in his own car, and that 924 the operator of the car, Graham, could not plead the guest statute as a defense to the action. "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of an accident, unless such accident shall have been intentional on the part of such owner or operator, or caused by the heedlessness or his reckless disregard of the rights of others." (General Statutes of Connecticut, \| 1628) In Naphtali Lafazan, 186 N.Y.S.2d 1010, 8 A.D.2d 22, Naphtali, owner of an automobile, and his wife taking an automobile trip, invited Mr. and Mrs. Lafazan to accompany them. An accident occurred in Ohio, while Lafazan was driving the automobile, with Naphtali seated beside him, and with their wives in the back seat. Mr. and Mrs. Naphtali sued Lafazan, the driver of the car for damages received by each of them. Lafazan pleaded the Ohio guest statute in defense, contending that both Mr. and Mrs. Naphtali were his guests and could not recover from him because he was not guilty of wilful or wanton misconduct. The court found that the defendant failed to use ordinary care but was not guilty of gross negligence. It then held, construing the Ohio statute, substantially the same as the Virginia statute, that Lafazan, the driver, could plead the statute against Mrs. Naphtali, because she was the guest of her husband, the host and owner of the car, and he, Lafazan, was the agent of her husband; but that he could not plead it against Mr. Naphtali, who was not a guest in his own car, and was, therefore, entitled to recover upon a showing of ordinary negligence. In two California cases, Ahlgren Ahlgren, 313 P.2d 88, 152 C.A.2d 723 and Ray Hanisch, 306 P.2d 30, 147 C.A.2d 742, approving Gledhill Connecticut Company, supra, it was held that a car owner, while riding in his own car driven by another person, was not the guest of the driver, under the facts of the two cases. In Leonard Helms, (C.A., 4th Cir.) 269 F.2d 48, decided August 5, 1959, the federal court, in construing the Virginia statute, held that where the owner of the car, Helms, was riding in his car driven by Miss Leonard, and the car was wrecked and both occupants badly injured, the owner of the car did not lose his character of host and become the guest of his companion when he permitted her to drive the car for her own pleasure. In Mayer Puryear, (C.A.4th Cir.) 115 F.2d 675, where the relationship of the parties was reversed, a young woman who was being transported gratuitously in an automobile by the owner, and driving at her own request, sued the owner because the latter negligently interfered with the operation of the car causing injuries to the driver. It was held that the defendant, owner of the car, was the host, and that the plaintiff, even though she was driving, was a guest so far as her host was concerned. 925 The evidence as to the status of Parker as a passenger in the car is short, simple and undisputed. Davis went to the home of Parker, with whom he had had a friendly acquaintance for 20 years, and asked Parker to transport him to a certain destination for a specific purpose. Parker refused the request, explaining that he could not carry him because he was forbidden to drive his car. Davis left, and, in about one-half hour later, returned. He then told Parker he was unable to get anyone to carry him to his desired destination, and admonished the latter to be a Good Samaritan. Parker said: "I can't drive," and Davis replied: "I can drive the car." Parker said, although he had never ridden in a car with Davis, he knew that the latter could drive, and he permitted Davis to drive the car, upon condition that he, Parker, went along with him. It is significant that when Leroy Williams asked if he could go on the trip, Parker said: "All right, if you want to." Davis did not invite Parker to ride with him; but he agreed to the arrangement in consideration of the favor granted him. There was no gratuitous understanding on the part of Davis, prompted by friendship, or family relation and interest, and without thought of bargaining, for the transportation. Parker did not relegate himself to the status of a guest in his own automobile. He and his car stood in the same relation to the driver of the car, with respect to the duty of Davis to drive with ordinary and reasonable care. Parker was, therefore, at all times, the host and Davis was actually the selfinvited guest. Cf. Miller Ellis, 188 Va. 207, 213, 49 S.E.2d 273. Moreover, "With respect to 'payment' it is not necessary that the operator of the vehicle receive actual cash in return for the transportation supplied, since services or other benefits given by the occupant, if regarded by the parties as consideration inducing the offer of transportation, may be sufficient to entitle the occupant to the status of a paying passenger, as distinguished from a guest passenger." Dickerson Miller, 196 Va. 659, 662, 85 S.E.2d 275; Hill Hardware Corp. Hesson, 198 Va. 425, 429, 94 S.E.2d 256; Smith Tatum, 199 Va. 85, 89, 97 S.E.2d 820; Davis Williams, 194 Va. 541, 545, 74 S.E.2d 58. Cf. Annotation, 10 A.L.R., 2d 1352 et seq. and 25 A.L.R. 2d 1448 et seq. As used in the statute, the term "guest without payment," imports that the person riding in a motor vehicle is the recipient of the hospitality of either the owner or operator of the vehicle. One who pays for his transportation is not a guest. If the consideration, in 926 whatever form, given to the operator of the car is sufficient to induce the transportation of another, such transportation is not afforded as a matter of ordinary courtesy or upon a gratuitous invitation. It would hardly be logical to hold that Parker, the owner of the car, was being transported by Davis, without payment for such transportation, when Parker, in furnishing the use of his car, contributed to Davis the cost of the transportation, an equivalent of the rental value of the car. We find nothing in the facts which justify the holding that Parker, the owner of the car, lost his character of host and became the guest of Davis. We hold, under the evidence, that Parker was as a matter of law not a "guest without payment." There was no basis for the submission of the case to the jury on the theory that the plaintiff was required to establish that the defendant was guilty of gross negligence. Not occupying the status of a guest within the meaning of the statute, Parker was entitled to a recovery, if Davis was guilty of negligence which was the sole proximate cause of the accident. The court erred in giving Instruction D-1, telling the jury that in order for plaintiff to recover, the evidence must show that the injuries complained of may have resulted from one of two causes for which Davis was responsible, and for the other of which he was not. There is no evidence in the record tending to prove that there was more than one cause of the accident. The court also erred in giving Instruction D-5, which told the jury if they believed that "plaintiff permitted Davis to drive plaintiff's automobile while Davis was in such an intoxicated condition as to render him a dangerous driver and became a passenger or continued to be a passenger in the automobile after plaintiff knew or by the use of ordinary care should have known of such condition, plaintiff assumed the risk and was guilty of contributory negligence and if you believe such intoxicated condition on the part of Davis was the proximate cause of the injury to plaintiff, you must find a verdict for the defendant." That instruction erroneously assumed that Davis was in an intoxicated condition. It is sufficient to say that there was no evidence to justify such assumption, or to show that plaintiff knew or should have known of such condition had it existed. Nothing is better settled in Virginia than that an instruction should not be given when there is no evidence tending to prove the *927 facts upon which the instruction is based. 10 Michie Jur., Instructions, \| 20, pages 213 et seq. and a multitude of cases cited. For the reasons stated, the judgment of the trial court is reversed; the verdict of the jury set aside; and the case remanded for a new trial, in accordance with the views herein expressed. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371620/	85 Cal. App. 2d 448 (1948) THE PEOPLE, Respondent, v. JOHN JERRY CUCCO, Appellant. Crim. No. 4192. California Court of Appeals. Second Dist., Div. Two. May 13, 1948. George Stahlman for Appellant. Fred N. Howser, Attorney General, and Howard S. Goldin, Deputy Attorney General, for Respondent. WILSON, J. Appellant and two others, Boulad and Mathews, were jointly charged with (1) having in their possession and (2) having transported a preparation of heroin, in violation of section 11500 of the Health and Safety Code. Defendants pleaded not guilty and waived a jury trial. The court adjudged appellant guilty as charged in both counts. Appellant made a motion for a new trial which was denied. The appeal is from the judgment and from the order denying the motion for a new trial. While Deputy Sheriffs Hines, McKinney and Jones were sitting in an automobile near the corner of Atlantic and Whittier Boulevards a coupe approached from the west on Whittier Boulevard and defendant Boulad, who had been standing near the corner, walked into the crosswalk, stepped onto the running board of the coupe and motioned with his 450 right arm. The coupe turned into Atlantic Boulevard and stopped after proceeding about a half block. The officers followed and stopped beside the coupe, which was being driven by appellant. Defendant Mathews was seated at the right-hand side and a woman named Frances was seated between the men. As the coupe stopped Boulad stepped off the running board. Officer Hines observed defendant Mathews throw a black article from the right-hand window of the coupe. Hines immediately got out of the officers' car and grabbed Mathews, who said that appellant had told him to throw the object away in the event they were stopped. Appellant made no reply to this statement. Officer McKinney recovered the black article, which proved to be a woman's glove containing a white envelope in which were enclosed 13 packages or bindles. It was stipulated that the bindles contained heroin. The three defendants and Frances were taken to the sheriff's substation for questioning. One of the officers testified that the statements made by the parties were all free and voluntary without hope of immunity or reward and free from threats of force or violence. Before admitting evidence of the conversation, the court, at the request of appellant's counsel, heard testimony on voir dire on the question whether or not the statements of appellant were free and voluntary. Thereupon appellant testified that the conversation at the substation lasted four or five hours and was engaged in by several officers. They questioned him about the package that had been thrown from the window, about telephone calls and other matters. He refused to answer the questions. Frances, who was his fiancee, was in custody at the time. Appellant stated that after a few hours the officers told him that if he did not talk they would lock Frances up and she would not see her baby for a year; that while resting his chin on his arm one of the officers knocked his arm from the table; that he saw the officers talking with Frances and believed that she would be released if he answered the questions; that he then made his statement to the officers and Frances was released from custody. Frances gave similar testimony. Officer Hines denied that appellant was told that Frances would be locked up and that she would not see her baby for a year unless appellant talked; that no one struck or threatened appellant or knocked his arm from the table. Two other officers testified to the same effect. 451 Upon completion of the hearing on voir dire the court overruled the objection to the evidence as to the conversation. Officer Hines then testified that Boulad and Mathews made certain statements in the presence of appellant; that appellant at first refused to answer as to the truth of the statements and then said he would talk if everybody except Hines left the room. Appellant then stated to Hines that he had procured $300 from his aunt and used it to purchase a half ounce of heroin in Mexico, brought it back to Los Angeles and had it rolled into bindles; that he took the narcotic to his car and he, Frances and Mathews drove to the point where they were arrested; that he gave the glove containing the narcotic to Mathews and told him to throw it away in the event they were stopped. Frances testified that she saw the glove in question on the night of the arrest of appellant and his codefendants, and that it quite possibly was hers. Officer Hines testified that a second black glove, similar to the one which was thrown from the car, was found in the coupe occupied by appellant, Mathews and Frances. Both gloves were introduced in evidence. Mathews, testifying in his own behalf, stated that he was riding with appellant and Frances; that Boulad stepped on the running board and told appellant "to pull around the corner and stop," which appellant did; that within a few seconds Mathews heard appellant say, "Take it;" that without thinking he, Mathews, took the object, which he saw to be a glove with something like paper in it; that appellant said, "If we are stopped throw that out the window;" Mathews asked "What for?" Appellant replied, "Never mind asking questions, just throw it out if we are stopped;" that when the sheriff's car came alongside the coupe appellant whispered, "Throw it," and Mathews threw it. Mathews denied that he knew the contents of the glove. Boulad testified in his own behalf. He admitted that he stepped on the running board of the coupe and said that appellant told Mathews to take a package and to throw it. Appellant denied having given Mathews a glove, denied having told him to throw it out if anything happened, and denied knowing that there were narcotics in the car. The foregoing statement negates appellant's contention that the evidence is insufficient to sustain the judgment. 452 [1] Whether a confession is free and voluntary is a preliminary question to be determined by the trial court. (People v. Siemsen, 153 Cal. 387, 394 [95 P. 863]; People v. Ferdinand, 194 Cal. 555, 567 [229 P. 341].) Where there is a conflict of evidence as to whether confessions had been freely and voluntarily made the determination of the question rests in the sound discretion of the trial judge, and if it is supported by substantial evidence his finding is binding upon a reviewing court. (People v. Dolan, 38 Cal. App. 2d 96, 98 [100 P.2d 791].) The ruling of the trial court will not be disturbed on appeal unless there has been an abuse of discretion. (People v. Roebling, 14 Cal. App. 2d 586, 588 [58 P.2d 929].) [2] The fact that a confession may have been made after the accused had been interrogated for many hours does not render his statements involuntary. (People v. McEvers, 53 Cal. App. 2d 448, 451 [128 P.2d 93].) When the evidence is in conflict on the question of freedom from coercion the determination of that question by the trier of facts will not be disturbed on appeal. (People v. Kazarian, 83 Cal. App. 2d 471, 472 [189 P.2d 39]; People v. Shaffer, 81 Cal. App. 752, 757 [254 P. 666]; Lisenba v. California, 314 U.S. 219, 238 [62 S. Ct. 280, 86 L. Ed. 166].) We find no error in the admission of appellant's confession. It may be added that the evidence concerning the movement of the coupe driven by appellant and the glove containing narcotics, together with the testimony given by appellant's codefendants Mathews and Boulad, is sufficient to sustain the judgment of conviction even if there had been no confession by appellant. [3] Appellant contends that the court erred in admitting in evidence the accusatory statement made by defendant Mathews in appellant's presence after Mathews had thrown the glove from the coupe and had been grabbed by officers. When the officer was asked to repeat Mathews' statement objection was made to the conversation and the objection was sustained. Later, when the officer was asked what Mathews said, he related Mathews' statement and, without objection from appellant, testified that appellant did not say anything in response to what Mathews had said. Objection was made after the answer had been given. The objection was overruled subject to a motion to strike. No motion to strike the evidence was made. If a witness answers so quickly that an objection cannot be made a motion to strike the answer is the proper remedy. (People v. Watson, 165 Cal. 645, 652-3 [133 P. 298]; 453 People v. Dong Pok Yip, 164 Cal. 143, 149 [127 P. 1031].) A failure to move to strike the evidence is a waiver of any objection that might have been made to its admission. (People v. Guiterez, 126 Cal. App. 526, 530 [14 P.2d 838]; People v. Lewandowski, 143 Cal. 574, 579 [77 P. 467].) [4] The final objection made by appellant is that the evidence is insufficient to establish the corpus delicti of the offense charged in the information. Aside from appellant's confession the evidence shows that he was in possession of a narcotic and was transporting it (Health & Saf. Code, 11500) for the purpose of disposing of it to another person or persons and that he had knowledge of the character of the material in his possession. The trier of facts having determined the elements of the crime that were established by the evidence it will not be set aside on appeal. (People v. Bassett, 68 Cal. App. 2d 241, 246 [156 P.2d 457].) [5] Neither intent nor knowledge is an element of the offense. The mere possession is a violation of the statute and the only perfect defense is a valid prescription under the act. (People v. Randolph, 133 Cal. App. 192, 196 [23 P.2d 777]; People v. Sweeney, 66 Cal. App. 2d 855, 859 [153 P.2d 371].) [6] The evidence that appellant was in possession of the glove containing the narcotic and that while they were riding in the automobile he handed the glove to Mathews with instructions to throw it if they were stopped, supports the judgment that he was unlawfully in possession of the heroin and that he was transporting it in violation of the law. (People v. Randolph, supra.) [7] The order of proof is within the discretion of the trial judge and a defendant may not complain because proof of the corpus delicti did not precede the evidence of an admission or confession. (People v. Housman, 44 Cal. App. 2d 619, 627 [112 P.2d 944]; People v. Allen, 138 Cal. App. 652, 656-7 [33 P.2d 77]; People v. Hudson, 139 Cal. App. 543, 545 [34 P.2d 741].) The judgment and the order denying appellant's motion for a new trial are and each is affirmed. Moore, P. J., and McComb, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371638/	85 Cal. App. 2d 366 (1948) MARIE SCHLETEWITZ, Respondent, v. CARL SCHLETEWITZ, Appellant. Civ. No. 3720. California Court of Appeals. Fourth Dist. May 4, 1948. Lawrence W. Young and John Said for Appellant. Stutsman, Hackett & Nagel for Respondent. GRIFFIN, J. On April 3, 1947, plaintiff and respondent Marie Schletewitz, commenced an action for divorce against defendant and appellant Carl Schletewitz, aged 73, alleging extreme cruelty, and on that same day defendant was served with a copy of complaint and summons. He failed to appear, and on May 29, 1947, his default was entered and the action was tried as a default matter. On June 3, 1947, the interlocutory decree was granted. Plaintiff was awarded certain real and personal property and $75 per month support money. On June 11, 1947, defendant gave notice of motion to set aside the decree on the ground that it was entered through mistake, inadvertence, surprise and excusable neglect. 368 In this connection it is now argued on appeal, as it was in the trial court, that the plaintiff did not advise the court, on the hearing of her case, that she was then and had been living and cohabiting with defendant as husband and wife ever since the action was filed and up to the date of the interlocutory decree, and that therefore she committed a fraud upon the court. On August 27, the motion was heard and on September 2 the court denied it. Defendant concedes the general rule that it is usually a discretionary matter whether such a decree, based upon excusable neglect, should be set aside, but contends that since the evidence conclusively shows that plaintiff committed an act of fraud upon the court by not divulging the true facts in regard to her relationship with her husband at the time she obtained the decree, the court abused its discretion in the matter and the decree, as a matter of law, should have been set aside. Defendant's evidence shows that plaintiff and defendant were married on December 18, 1937; that after he was served with process on April 3, 1947, plaintiff and defendant continued to live together until May 5, 1947; that she quit sleeping with him because she was told by her attorney that such conduct might affect her divorce proceedings; that her attorney did not inform the court of these facts at the hearing; that on May 29, when she obtained her decree she told defendant she was going to town with a friend to buy some shoes but did not inform him about going to obtain the decree; that she thereafter returned home and got his meals and had frequent prayer meetings together with him until June 12, 1947; that after the service of the complaint plaintiff advised defendant and led him to believe that she did not desire any divorce and that they had become reconciled, and for that reason he obtained no attorney and did not appear in the action. Plaintiff recites in her affidavit that she did not cohabit with defendant after May 5th, 1947; that she told him she was in ill health and ever since May 29th, 1947, she had locked herself in her own room and slept separate and apart from him; that the reason she occupied the bed with defendant from the date of service of the complaint until May 5, 1947, was because she was fearful of defendant's threats to do her grave bodily injury and to take her life if she did not cohabit with him; that she never advised defendant she did not want a divorce but at all times expressed to him her desire to live separate and apart from him and to continue with the divorce proceedings. She denied generally his allegations as to her 369 going out in public with him and appearing as "happily married persons" after April 3, 1947. She then alleges that defendant did seek the advice of his attorney in the matter; that said attorney was given a community property settlement agreement purporting to settle the property rights of the parties; that defendant consulted with said attorney as to the property settlement agreement and in reference to the divorce proceedings; that defendant was repeatedly told by plaintiff's attorney to consult with his own attorney; that defendant stated he did not need an attorney; that plaintiff did not obtain the interlocutory decree without the knowledge or consent of defendant but on the contrary defendant was informed both orally and in writing by plaintiff's attorney that the interlocutory decree was going to be taken and that he should consult his attorney; that she was still living at the home, awarded to her in the decree, and that defendant refused to move therefrom; that she never voluntarily had her meals with defendant; that she never cooked for him since the filing of the complaint, never washed his clothes or bed linen; that she had obtained an order to show cause why defendant should not be removed from the premises. Plaintiff's attorney alleged, in his affidavit, that on April 15, 1947, he prepared a property settlement agreement for the parties; that defendant instructed him to take the agreement to his named attorney; that he did so and that attorney scrutinized it and made several changes therein; that the changes were made and as made were shown to defendant with instructions to take them to his attorney for examination. It is then alleged that on April 9, 1947, plaintiff's attorney addressed a letter to defendant at his home address, and a copy was forwarded to his attorney reciting: "Dear Sir;" "Your wife, Mrs. Schletewitz, has consulted us in reference to her action filed against you on April 2, 1947. She has informed us that due to the fact that you are unwilling to come to a mutual agreement regarding settlement of the property rights involved, and due to the fact that you refuse to see your attorney, Mr. Aynesworth, she is desirous of our continuing her action for divorce." "Please be advised that we shall give you a period of five days in which time we shall expect to hear from you. Should you fail to communicate with us within that time we will be compelled to pursue this action against yourself, per the instructions of Mrs. Schletewitz." 370 Defendant denied the receipt of this letter. There was no showing made by defendant's attorney, Mr. Aynesworth, that the transactions thus alleged did not actually take place. Upon this evidence the trial court refused to set aside the default and decree. Defendant appealed and cites several cases such as Rehfuss v. Rehfuss, 169 Cal. 86 [145 P. 1020]; Smith v. Smith, 64 Cal. App. 2d 415 [148 P.2d 868]; Hambrick v. Hambrick, 77 Cal. App. 2d 372 [175 P.2d 269]; Aldrich v. Aldrich, 203 Cal. 433 [264 P. 754]; Katz v. Karlsson, 84 Cal. App. 2d 469 [191 P.2d 541]; and Raps v. Raps, 20 Cal. 2d 382, 387 [125 P.2d 826]; holding that a very slight showing is required for a court to set aside a default decree in a divorce action and that it is the duty of the court, representing the state, in accordance with the letter and policy of the law, to guard strictly against fraud, collusion, or imposition when the husband or wife seeks to dissolve the bonds of matrimony which bind them together, and that a court should listen more readily to an appeal from an order denying relief than to one granting relief. As stated before, the main question is whether or not, by the suppression of the fact that plaintiff and defendant were sleeping together as husband and wife, and having sexual relations on occasions, from the time of the filing of the complaint up to and on the day of the hearing, plaintiff was guilty of a fraud practiced upon the court compelling this court to reverse the order of the trial court denying relief. In this connection defendant cites Chiarodit v. Chiarodit, 218 Cal. 147 [21 P.2d 562], which case cites McGuinness v. Superior Court, 196 Cal. 222 [237 P. 42, 40 A.L.R. 1110]. [1] The denial of the motion to set aside the decree by reason of defendant's excusable neglect seems justified under the evidence for it clearly appears that there was substantial evidence to show that defendant was served with process; that he took those papers to his own attorney; that he participated in attempting to reach a property settlement and was notified by letter that plaintiff intended to proceed with the default judgment. [2] Can it be said, notwithstanding these facts, that plaintiff was, as a matter of law, guilty of a fraud in not revealing to the trial court the undisputed facts in relation to her cohabitation with her husband until May 5, 1947? It would be understandable for a wife to bring an action against her husband for divorce and still continue to live in the same house, but in different rooms, where she had no other place to go and her husband refused to move out. 371 Such a method of claimed cohabitation may not, in itself, constitute any fraud on the court nor would such a wife necessarily be compelled to disclose such arrangement to the court or could she be charged with fraudulently concealing facts. Having sexual relations with her husband during such a period, without the benefit of other marital or conjugal rights, would not necessarily be a controlling circumstance. See Hawkins v. Hawkins, 104 Cal. App. 608, 609 [286 P. 747], in which case the court held, quoting from the syllabus: "The conjugal rights of married persons include the enjoyment of association, sympathy, confidence, domestic happiness, the comforts of dwelling together in the same habitation, eating meals at the same table, and profiting by the joint property rights as well as the intimacies of domestic relations; and in this action, there was no restoration to all marital rights as is required to constitute a consummation of condonation, where there was no claim of a restoration to any marital rights, except the right of cohabitation on a single occasion. ..." "Condonation of acts of extreme cruelty is not accomplished by sexual intercourse alone, there being no showing of a restoration to all marital rights." The case of Morton v. Morton, 117 Cal. 443 [49 P. 557], is not dissimilar to the facts in the instant case. There plaintiff wife instituted an action for divorce against her husband. The complaint was filed on September 25, and summons served on him on October 14. He failed to appear and on November 14, judgment of divorce was granted. Defendant later moved to set aside the decree on the same grounds here claimed alleging that after the commencement of the action plaintiff and defendant cohabited together as husband and wife until October 14, at which time he left for San Francisco. Plaintiff testified that she lived at the home with the defendant because she "had no place to go" and did not want to leave her personal effects to his mercy because he had threatened to destroy them if she ever left him; that she never agreed to condone his matrimonial offenses nor to forgive him; that she endured defendant because she could not help herself, until she had an opportunity of safely taking other action. The court denied defendant's motion. The order was affirmed on appeal. The court said: "The point that plaintiff must be held to have condoned defendant's offenses, because she lived and cohabited with him after the action was commenced and until the summons was 372 served, cannot be sustained. In an action for divorce on the ground of cruelty there can be no condonation unless there is a reconciliation between the parties, a remission of the matrimonial offenses and an express agreement to condone ... 'Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from successive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone.' " (Citing Civ. Code, 118.) In Gump v. Gump, 42 Cal. App. 2d 64 [108 P.2d 21]; and McGuinness v. Superior Court, supra, relied upon by defendant, upon conflicting evidence as to whether or not there was a reconcilation, the trial courts found that there was, as a matter of fact, a reconciliation. On appeal it was held that the evidence supported such a finding and that an appellate court could not hold to the contrary, as a matter of law. In the instant case, had the trial court found that a reconcilation had been effected and that the procurement of the interlocutory decree was in accordance with defendant's claim, we would have no difficulty. Here we have an opposite finding with which to contend. [3] It is plaintiff's claim that, by her actions, she never intended to effect a reconcilation or to lull defendant into a false sense of security, but that she did not move out of the house and did not refuse his marital demands for the reason that she feared him and was afraid that he might carry out his threat to do her great bodily injury; that her actions in this respect were not "voluntary"; that as soon as the decree was granted she locked herself in her own room and abided the former advice of her attorneys to desist from such marital relationship, even though involuntary. Although her statement pertaining to the reasons she submitted to this relationship may be questioned, it still remained a question of fact for the trial court to determine. A full hearing of that question, and whether or not the court had been deceived by her withholding such information at the time the interlocutory decree was granted, were presented to and determined by the trial court. That court was confronted with the conflict in the evidence, the demeanor of the parties on the witness stand, and it had a right to believe plaintiff's testimony. A clear abuse of discretion does not 373 appear. (McDonald v. McDonald, 173 Cal. 175, 177 [159 P. 426]; Morton v. Morton, 117 Cal. 443 [49 P. 557]; Keller v. Keller, 122 Cal. App. 712 [10 P.2d 541]; Bohnert v. Bohnert, 95 Cal. 444 [30 P. 590]; Dean v. Dean, 77 Cal. App. 2d 98 [174 P.2d 705].) Order affirmed. Barnard, P. J., and Marks, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371627/	966 F. Supp. 1525 (1997) In re GENERAL MOTORS CORPORATION ANTI-LOCK BRAKE PRODUCTS LIABILITY LITIGATION No. MDL-1129. United States District Court, E.D. Missouri, Eastern Division. June 11, 1997. 1526 1527 1528 John G. Simon, Jeffrey J. Lowe, Gray & Ritter, St. Louis, MO, David O. Danis, Danis, Cooper, Cavanaugh & Hartweger, St. Louis, MO, John J. Carey, Joseph P. Danis, Carey & Danis, St. Louis, MO, Joe C. Holzer, Butler & Binion, Houston, TX, Joseph W. Phebus, Phebus, Winkelman, Wong & Bramfeld, Urbana, IL, Melvyn I. Weiss, Patricia M. Hynes, Robert A. Wallner, Milberg, Weiss, Bershad, Hynes & Lerach, New York City, John M. Deakle, Janet L. Sims, Hattiesburg, MS, John M. Sims, Heidelberg, MS, Anthony Sakalarios, F. Marvin Morris, III, Morris and Sakalarios, Hattiesburg, MS, Stanley M. Grossman, D. Brian Hufford, Peter G.A. Safirstein, Pomerantz, Haudek, Block & Grossman, New York City, D. Michael Campbell, Miami, FL, Keith G. Liberman, Clayton, MO, Arnold Levin, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Gary E. Mason, Cohen, Milstein, Hausfeld & Toll, Washington, DC, Steve W. Berman, Hagens & Berman, Seattle, WA, Michael F. Ram, Leiff, Cabraser, Heimann & Bernstein, San Francisco, CA, Turner Branch, Branch Law Firm, Albuquerque, NM, Sam Heins, Heins, Mills & Olson, Minneapolis, MN, Marvin Blount, Marvin Blount Law Officies, Greenville, NC, Steven A. Martino, Jackson, Taylor & Martino, Mobile, AL, William M. Audet, Michael McShane, Alexander Law Firm, San Jose, CA, Ronald L. Burdge, Franklin, OH, Keen L. Ellsworth, Thomas A. Ericsson, Robert B. Gerard, Edwards, Olson, Waite & Wintest, Las Vegas, NV, for Plaintiffs. David M. Harris, John E. Petite, Greensfelder, Hemker & Gall, St. Louis, MO, James H. Schink, Robert B. Ellis, David A. Coulson, J. Andrew Langan, Kirkland and Ellis, Chicago, IL, Terrence J. Galligan, Kirkland and Ellis, New York City, Greg J. Dow, Strasburger & Price, Houston, TX, David C. Thies, Richard L. Thies, Webber & Thies, Urbanan, IL, Lee A. Schutzman, Detroit, MI, J. Henry Ros, Page, Mannino, Peresich, Dickson & McDermott, Gulfport, MS, R. Benjamine Reid, Popham, Haik, Schnobrich & Kaufman, Miami, FL, John M. Kunst, Jr., Jeffrey P. Hinebaugh, Dinsmore & Shohl, Cincinnati, OH, for General Motors Company. Frank N. Gundlach, Armstrong, Teasdale, Schafly & Davis, St. Louis, MO, Edward M. Kronk, Butzel, Long, Gust, Klein & Vanzile, Detroit, MI, Nancy Archer Yanochik, Joe W. Redden, Jr., Beck, Redden & Secrest, Houston, TX, William J. Brinkmann, Thomas, Mamer & Haughey, Champaign, IL, Robert M. Frey, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Daniel E. Gonzalez, Lawrence P. Bemis, Steel, Hector & Davis, Miami, FL, for Kelsey-Hayes Company. ORDER NANGLE, District Judge. Before the Court are two motions to dismiss the consolidated amended complaint in the above-captioned multidistrict litigation. The motions were filed by defendants General Motors ("GM") and Kelsey-Hayes ("KH"). For the reasons set forth below, defendants' motions to dismiss are granted in fill. 1529 I. BACKGROUND On October 8, 1996, the Judicial Panel on Multidistrict Litigation transferred six actions[1] to this Court for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. Several tag-alongs have followed. Plaintiff's filed a Consolidated and Amended Class Action Complaint ("Plaintiffs' Complaint") on January 13, 1997.[2] Plaintiffs' Complaint alleges that GM and KH jointly designed a dangerously defective anti-lock brake system ("ABS"), knew the ABS was defective, concealed this information from the public, and promoted the ABS as a highly effective safety device. Specifically, plaintiffs allege two defects: 1) the ABS system performs counter-intuitively because of a pedal-to-the-floor phenomenon[3] that causes the driver to think there has been a total brake failure[4] and 2) the ABS is an inferior anti-lock brake system which extends the distance needed for stopping, increasing the possibility of accidents. Plaintiffs assert a total of six causes of action, five against both defendants and one solely against GM. The five claims against both defendants are for fraudulent misrepresentation, fraudulent concealment, breach of implied warranty, violation of state consumer protection statutes, and breach of implied warranty on behalf of the subclass.[5] The claim solely against GM is for breach of express warranty and/or breach of contract. Plaintiffs' Complaint explicitly disclaims "any intent to seek in this suit any recovery for personal injuries or property damage suffered or which may be suffered by any Class member." (Plaintiffs' Complaint at ¶ 21). Plaintiffs seek the following forms of relief: (1) compensatory damages for actual damages sustained; (2) an order directing defendants to recall or repair the ABS systems; (3) an order directing defendants to issue corrective disclosures; (4) punitive damages; and (5) attorneys' fees and costs. (Id. at 39-40). Defendants have moved to dismiss Plaintiffs' Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, defendants have moved to dismiss the claims for fraudulent misrepresentation, fraudulent concealment and violations of state consumer protection statutes for failure to plead with specificity pursuant to Fed. R.Civ.P. 9(b). II. ANALYSIS When ruling on a Rule 12(b)(6) motion to dismiss, a court must examine the complaint in the light most favorable to the non-moving party, accept the well-pleaded factual allegations as true and construe all allegations in favor of the plaintiff. Carney v. Houston, 33 F.3d 893, 894 (8th Cir.1994); Hamm v. Groose, 15 F.3d 110, 112 (8th Cir.1994); Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir.1993). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); See also Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995). A. Failure to Plead Damages Each defendant has moved to dismiss the complaint for the failure to adequately 1530 plead damages, an essential element of every cause of action. Plaintiffs have alleged that their vehicles "suffer from the defects." (Plaintiffs' Complaint at ¶ 10-15). It is undisputed that plaintiffs do not allege personal injury or property damage. (Plaintiffs' Complaint at ¶ 21). Plaintiffs' allegation of damage is for economic loss caused by paying more for the vehicles than they were worth and for economic loss stemming from lost resale value. (Id. at ¶ 99). Plaintiffs' allegations of damages are conclusory and fall short of the pleading requirements for defective products. See, e.g., Hubbard v. General Motors Corp., 1996 WL 274018, 3 (S.D.N.Y.1996) (holding plaintiff must allege defect manifested itself in his or her product to state claim for relief); Lee v. General Motors Corp., 950 F. Supp. 170, 171-74 (S.D.Miss.1996) (dismissing plaintiffs' claims of inherently defective detachable fiberglass roofs for failure to plead sufficient damages); Barbarin v. General Motors Corp., 1993 WL 765821, 3 (D.D.C.1993) (dismissing claims of plaintiffs whose cars had not manifested defect); Yost v. General Motors Corp., 651 F. Supp. 656, 657 (D.N.J.1986) (holding design defect likely to cause damage did not state claim); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 603 (S.D.N.Y.1982) (holding no cause of action for defect which never manifests itself); Khan v. Shiley Inc., 217 Cal. App. 3d 848, 266 Cal. Rptr. 106, 110 (4th Dist.1990) (holding plaintiff with inherently defective heart valve did not state cause of action absent malfunction of valve). Plaintiffs do not allege that the defect manifested itself in their vehicles, i.e. they do not explain when, where or how their vehicles exhibited the defects. Damages based on lost resale value have been rejected as inappropriate under a breach of implied warranty theory. See Carlson v. General Motors Corp., 883 F.2d 287, 297-98 (4th Cir.1989). In Carlson, the court upheld the dismissal of the claims of plaintiffs who had not had engine difficulties but had sought recovery for "lost resale value" because of the widespread problems with GM diesel products. Id. at 298. The plaintiffs in Carlson had acknowledged that the loss in resale value had resulted from the "poor reputation of the cars" rather than from a manifest defect in any of the cars which had experienced no problems. Id. at 291. The court held that the implied warranty of merchantability does not encompass a claim for loss of resale value. Id. at 297-98. The court specifically stated that it affirmed the district court's dismissal of "those plaintiffs who alleged damages attributable only to `lost resale value.'" Id. at 298. Like the plaintiffs in Carlson, the plaintiffs in this case cannot recover merely for economic loss. Plaintiffs' statement that their vehicles "suffer from the defects" is not a sufficient allegation of damages. Plaintiffs' definition of the purported class reveals their true allegation of damage in this case. In their class definition, plaintiffs include "All persons ... who own or lease a model-year 1989-1996 GM vehicle equipped with an ABS system fabricated by Kelsey-Hayes," without limitation to persons whose vehicles have manifested the defect. In fact, plaintiffs state that "at the time of the sale of each automobile, the GM owner (and the general public) was exposed to potential of a brake failure." (Plaintiffs' Response Brief at 13)(emphasis added). It is clear from Plaintiffs' Complaint that they believe the vehicles were defective from the moment they came off the assembly line and that this fact, in and of itself, is behind their claims of damage. Manifestation of the defect in the vehicle, however, is a prerequisite to recovery. See, e.g., Hubbard, 1996 WL 274018, 3; Barbarin, 1993 WL 765821, 3. Plaintiffs have also failed to allege economic harm with any sufficiency. They have merely alleged that they have suffered a loss of resale value and that they paid more for the vehicles than they were worth. There are no details surrounding these claims, as it appears no plaintiff has attempted to sell his or her vehicle. Plaintiffs cannot go forward with such speculative claims. Although dismissal of Plaintiffs' Complaint in its entirety is warranted for the failure to adequately plead damages, plaintiffs' claims fail to state a claim for relief for the following additional reasons. 1531 B. Breach of Express Warranty/Breach of Contract General Motors 1. Advertisements/Promotional Materials Plaintiffs bring a claim for breach of express warranty/breach of contract solely against defendant GM. Plaintiffs allege that GM's advertisements and public promotions contained broad claims that the vehicles were safe from defects when, in fact, GM knew the ABS was defective. Consequently, according to plaintiffs, equipping the vehicles with the ABS was a breach of express warranty. GM, however, argues that its advertisements, public statements and brochures contained statements which were mere puffery and cannot serve as the basis for an express warranty claim. Plaintiffs' claims for breach of express warranty fail because they are based on advertising statements which have been held to be puffery. For example, one public statement plaintiffs rely on stated that GM had estimated that "crash-avoidance systems, such as anti-lock brakes, `[are] 99 percent more effective than protective systems' such as air bags, because protective systems are rarely used, while `drivers frequently brake aggressively or make sudden road maneuvers to avoid hazards or collisions.'" (Plaintiff's Complaint at 18). Another statement plaintiffs rely on states: "A driver is 100 times more likely to benefit from a vehicle's crash-avoidance capabilities (such as anti-lock brakes) than from its crash-survival capabilities (such as air bags)." Id. Courts have held that such comparative claims, often involving large numbers, are puffing because a consumer cannot reasonably believe that there is a test behind the claim. See Avon Prods., Inc. v. S.C. Johnson & Son, Inc., 1994 WL 267836, 6-7 (S.D.N.Y.1994) (citing Cook, Perkiss & Liehe v. Northern Cal. Collection Serv., 911 F.2d 242, 246 (9th Cir.1990); W.L. Gore & Assocs., Inc. v. Totes Inc., 788 F. Supp. 800, 809 (D.Del.1992)); See also LensCrafters, Inc. v. Vision World, Inc., 931 F. Supp. 1462, 1469 (D.Minn.1996) (holding characterization of product as `vastly' superior to other products is puffery); Hoffman v. A.B. Chance Co., 339 F. Supp. 1385, 1387-88 (M.D.Pa.1972) (holding advertisements which represented that product "offered unprecedented safety" was statement of opinion akin to seller's puffing); Mason v. Chrysler Corp., 653 So. 2d 951, 953-54 (Ala.1995)(holding national advertising campaign referring to quality of vehicle was puffing); Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 464 (Tex.Ct.App. 1990) (holding generally "statements that compare one product to another and claim superiority" not actionable misrepresentations). Plaintiffs also fail to allege that many of the statements they cite are false. For example, there is no claim that the following statements are false, yet plaintiffs refer to them repeatedly in their complaint: (1) statements referring to ABS and its prevention of skidding and (2) statements referring to the ABS's ability to help maintain controlled straight stops. Plaintiffs do not allege that the ABS does not do these things, so they cannot rely on these statements for their claims of breach of express warranty and/or breach of contract. Plaintiffs repeatedly allege that the press releases and advertisements[6] all failed to disclose the defect, so, to the extent their express warranty claims are based on advertisements and promotional materials, these claims are based on omissions. (Plaintiff's Complaint at 34). A breach of express warranty claim, however, cannot be premised on an omission. See Sidco Prods. Mktg., Inc. v. Gulf Oil Corp., 858 F.2d 1095, 1099 (5th Cir.1988). In Sidco, the court held that omissions "are not affirmative representations of any sort, and thus cannot support a warranty claim, because express warranties must be explicit." Id. Plaintiffs' express warranty claims are also deficient because plaintiffs have failed to allege that the advertisements were the basis of their bargains as is required by 1532 U.C.C. § 2-313.[7]See Global Truck & Equip. Co. v. Palmer Mach. Works Inc., 628 F. Supp. 641, 651 (N.D.Miss.1986) (holding buyer must "both be knowledgeable of and rely on the affirmation of fact before an express warranty is created."); Hagenbuch v. Snap-On-Tools Corp., 339 F. Supp. 676, 680 (D.N.H.1972) (holding representations of fact must be "part of the basis of the bargain" for recovery for breach of express warranty) (citing Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 397 (10th Cir.1967)). Indeed a number of the statements were made after some of the vehicles had been purchased. Plaintiff Opal, for example, purchased his vehicle in 1990, and could not have relied on many of the statements which were made in 1993. Plaintiffs' Complaint is utterly devoid of any allegations pertaining to which plaintiffs relied on which statements. 2. Written Warranties Plaintiffs further allege that they purchased or leased their vehicles under a written warranty which promised the vehicles were "to be free of defects in materials and workmanship at the time of delivery." (Plaintiffs' Complaint at 33-34). Plaintiffs also claim they entered into a "contract with GM, through its dealer-agents, in which they paid GM in exchange for vehicles free from safety defects." (Id. at 34). Defendants have responded by attaching copies of GM warranties for the 1990, 1993 and 1994 Chevy light trucks, which clearly demonstrate that GM did not warrant the vehicles free of defects. Because plaintiffs refer to these warranties in their complaint, it is appropriate for the Court to examine them on a motion to dismiss. See, e.g., Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993). The warranties merely provide that if there are any defects in material or workmanship during the warranty period, defendant will provide repair or replacement of the defective parts. The warranties also provide that repair or replacement is the sole remedy available. Further, GM disclaimed liability for consequential damages. Any contract claim plaintiffs may have is based on these written warranties, and the warranties simply do not promise that the vehicles are free of defects. Plaintiffs' claims for breach of express warranty/breach of contract fail to state a claim for relief Plaintiffs have relied on puffing, have erroneously based their claim on omissions and have failed to allege the statements were part of the basis of their bargains. In addition, plaintiffs' reliance on the written warranties is clearly misplaced because the warranties simply to do not promise that the vehicles are free of defects. C. Breach of Implied Warranty General Motors and Kelsey-Hayes Plaintiffs allege, with respect to both the class and the subclass, that defendants have breached the implied warranties of fitness and merchantability because they knew about the defects and did not disclose them. Plaintiffs' claims for breach of the implied warranty of merchantability[8] fail to state a claim upon which relief can be granted. Loss of resale value is not a proper basis for a breach of implied warranty claim. See American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 44 Cal. Rptr. 2d 526, 529-530 (2d Dist.1995) (citing Carlson v. General Motors Corp., 883 F.2d 287, 297-98 1533 (4th Cir.1989)). In American Suzuki, the court held that plaintiffs who alleged they "suffered no personal injury or property damage from a vehicle they claim is defectively designed, and it is impliedly conceded that their vehicles have since the date of purchase remained fit for their ordinary purpose" could not maintain an action for breach of implied warranty. Id. 44 Cal. Rptr.2d at 527. The implied warranty of merchantability can only be breached when the "vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation." Id. at 529-30. The implied warranty of merchantability arises by operation of law and does not "impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality." Id. (citing Skelton v. General Motors Corp., 500 F. Supp. 1181, 1191, rev'd on other grounds, 660 F.2d 311 (7th Cir.1981), cert. denied, 456 U.S. 974, 102 S. Ct. 2238, 72 L. Ed. 2d 848 (1982)). Taking all of plaintiffs' allegations as true, plaintiffs have failed to state a claim for breach of implied warranty because their allegations do not show that the vehicles are unfit for providing transportation. In Carlson, the court noted that "where a car can provide safe, reliable transportation it is generally considered merchantable." Carlson, 883 F.2d at 297 (citing Taterka v. Ford Motor Co., 86 Wis. 2d 140, 271 N.W.2d 653, 655 (1978)). The Court went on to note that the implied warranty of merchantability "clearly does not encompass consumer expectations that a product will hold its value." Id. at 298. Plaintiffs' allegations do not show that the vehicles are unmerchantable because plaintiffs have not alleged a defect that makes the vehicles unfit for the ordinary purpose of providing transportation. Plaintiffs have not alleged brake failure or that they have stopped driving their vehicles because of the defects. They have merely alleged that the ABS performs counter intuitively because of the pedal-to-the-floor phenomenon and that it increases stopping distances, neither of which make the vehicles unfit for providing transportation. The breach of implied warranty claims against KH should be dismissed for an additional reason. In Hininger v. Case Corp., 23 F.3d 124 (5th Cir.1994), the court held that under Texas law a manufacturer/supplier of combine wheels could not be held liable for breach of implied warranty when the combine, which was manufactured and sold by another entity, was rendered inoperable because of problems with the wheels. The court reasoned that although Texas has abolished the privity requirement and allows a purchaser to sue a remote manufacturer of a finished product for breach of implied warranty, Texas courts would make a distinction between a manufacturer of a finished product and a manufacturer of a component part because component suppliers are unable to disclaim warranty liability effectively.[9] Components are often "hidden within the product, making it difficult or impossible for the manufacturer to notify ultimate purchasers by posting disclaimers on the product itself." Id. at 129. Important to the court was the fact that plaintiffs, as purchasers, had bargained for a finished product, rather than all of the "myriad components that make up" the product and the fact that they had no expectation that the component supplier would resolve any problems with the product. Furthermore, such a far reaching expansion of liability would disrupt the allocation of risk set up in the production and distribution chain. Id. at 128. New York has also refused to extend warranty liability to a remote component supplier in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963). In Goldberg the court set out a "thing of danger" exception to the general rule requiring privity of contract for a breach of implied warranty claim. Goldberg, 240 N.Y.S.2d at 593-94, 191 N.E.2d at 82. The court, however, explicitly refused to extend this exception to manufacturers of component parts, holding that adequate protection 1534 is provided by allowing suit against the manufacturer of the finished product. Id. 240 N.Y.S.2d at 594-95, 191 N.E.2d at 83. Research has revealed that none of the states involved in this action have specifically extended liability for breach of implied warranty to manufacturers of component parts. There are indications that they would not do so. In Pennsylvania, for example, the courts have held that plaintiffs cannot maintain a cause of action for negligence or strict liability when the damage is only to the product itself. REM Coal Co. v. Clark Equip. Co., 386 Pa.Super. 401, 563 A.2d 128, 134 (1989); Johnson v. General Motors Corp., 349 Pa.Super. 147, 502 A.2d 1317, 1323 (1986), allo. denied, 514 Pa. 639, 523 A.2d 346 (1987). The reasoning underlying this holding is summarized by one court as follows: ... the goals of tort theories of recovery are not implicated in a product malfunction case involving only economic losses. A contract action, on the other hand, is perfectly suited to providing an adequate remedy for such losses and recognizes the parties' ability to structure their relative liabilities and expectations regarding the product's performance by setting the terms of their contractual bargain. REM Coal Co., 563 A.2d at 129. A contract action by a purchaser against a remote component supplier, however, does not allow the supplier to structure its liability at all. Particularly when, as is the case with KH, the purchaser never even knew who the supplier was until long after he made the purchase. The parties cannot set the terms of their contractual bargain in such a situation. Plaintiffs' claims for breach of implied warranty fail to state a claim for relief because their allegations are based on lost resale value, which is not a proper basis for such a claim. In addition, plaintiffs' alleged defect does not appear to render the vehicles unfit for the ordinary purpose of providing transportation. The claim against KH fails for the additional reason that implied warranty liability does not extend to remote manufacturers of component parts. D. Fraudulent Misrepresentation General Motors and Kelsey-Hayes Plaintiffs allege that defendants made false and misleading representations, in public statements, advertisements, sales brochures, and owner's manuals, that the vehicles were safe and free from dangerous defects. Further, plaintiffs argue, defendants had a duty to disclose the defects because of their superior knowledge. Plaintiffs allege they would not have paid as much for the vehicles if they would have known about the defects. It is appropriate for a court to determine "whether an alleged misrepresentation is a statement of fact or mere puffery" on a Rule 12(b)(6) motion to dismiss. See In re All Terrain Vehicle Litig., 771 F. Supp. 1057, 1060 (C.D.Cal.1991) (citing Cook, Perkiss & Liehe v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 245 (9th Cir.1990)). In All Terrain Vehicle Litig., plaintiffs alleged that defendants, who were manufacturers and distributors of All Terrain Vehicles ("ATV's"), had through their national advertising campaign created a "false impression that ATV's were suitable and safe for recreational use." Id. The court, however, dismissed the claims because they were based on advertisements and promotions which were mere puffery. Id. at 1060-61. Plaintiffs in this case have similarly alleged that defendant GM has through its national advertisements, press releases and promotions created a false impression that the ABS system is "safe and reliable." (Plaintiffs' Complaint at 17). For the reasons discussed at length in the express warranty section, plaintiffs fail to state a claim for fraud because these claims are based on statements of puffery. See id. at 1060-61; See also Mason v. Chrysler Corp., 653 So. 2d 951, 953-54 (Ala. 1995) (holding national advertising campaign improper basis for fraud claim because advertisements mere puffing). Plaintiffs' claims for fraudulent misrepresentation also fail because the claims have not been pled with the specificity required by Fed.R.Civ.P. 9(b).[10] In order for 1535 pleadings of fraud to withstand a motion to dismiss, plaintiffs must allege "the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby." Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982). In addition, plaintiffs are required to allege facts supporting their claim of reliance, for where the complaint "only states a conclusion that actual reliance existed" and is void of any allegations that anyone actually read any of the misleading statements or knew of their existence, such an allegation "fails the particularity requirement of Rule 9(b)." Morse v. Abbott Labs., 756 F. Supp. 1108, 1112 (N.D.Ill. 1991). Plaintiffs' complaint is devoid of any explanations of their conclusory allegation that they relied on defendants' statements. There are numerous allegedly fraudulent statements cited in the complaint and eight named plaintiffs, yet plaintiffs do not state which statements each of them relied on. Plaintiffs have failed to plead fraud with the specificity required by Rule 9(b). E. Fraudulent Concealment General Motors and Kelsey-Hayes Similarly, plaintiffs' claims for fraudulent concealment fail because plaintiffs have failed to plead with the specificity required of Rule 9(b). Specifically, plaintiffs have failed to adequately allege reliance. In addition, plaintiffs have failed to state a claim for relief because defendants did not have a duty to disclose. To recover for fraudulent concealment, plaintiffs must prove that defendants had a duty to disclose the concealed information. See Emerald Texas Inc. v. Peel, 920 S.W.2d 398, 403 (Tex.Ct.App.1996); Kovich v. Paseo Del Mar Homeowners' Ass'n, 41 Cal. App. 4th 863, 48 Cal. Rptr. 2d 758, 760 (2d Dist.1996); Sevin v. Kelshaw, 417 Pa.Super. 1, 611 A.2d 1232, 1236 (1992); Davidson v. Rogers, 431 So. 2d 483, 485 (Miss.1983); Fairmont Foods Co. v. Skelly Oil Co., 616 S.W.2d 548, 550 (Mo.Ct.App. 1981). A duty to disclose only arises when there is a confidential or fiduciary relationship, when there is privity of contract or when "one party has superior knowledge or information not within the fair and reasonable reach of the other party." Reeves v. Keesler, 921 S.W.2d 16, 21 (Mo.Ct.App.1996); See also U.S. ex rel. Bussen Quarries, Inc. v. Thomas, 938 F.2d 831, 834 (8th Cir.1991); Kovich, 48 Cal.Rptr.2d at 762-63. In the present case, it is undisputed that there was no confidential or fiduciary relationship between plaintiffs and defendant. It is also undisputed that there was no privity of contract between plaintiffs and defendant. The only basis, therefore, in this case for imposing a duty to disclose is the claim that defendants had knowledge not within plaintiffs' reach. A claim for fraudulent omission which alleges one party withheld information based on superior knowledge requires the plaintiff to show that he exercised due diligence to discover the information. See McMahon v. Meredith Corp., 595 F.2d 433, 439 (8th Cir.1979); Fairmont Foods Company v. Skelly Oil Co., 616 S.W.2d 548, 550 (Mo.Ct.App.1981). The Court will assume without deciding that plaintiffs have met the pleading requirements for due diligence. Even if plaintiffs demonstrate they exercised due diligence, however, they have still failed to state a claim for relief because courts have rejected imposing a duty to disclose in cases containing similar factual allegations. See Taylor v. American Honda, 555 F. Supp. 59, 64 (M.D.Fla.1982); Mason v. Chrysler Corp., 653 So. 2d 951, 954-55 (Ala. 1995). In Taylor, plaintiffs alleged that defendant had a duty to disclose two dangerous conditions of a motorcycle because defendant had superior knowledge. The court held that absent any sales transaction between Taylor and American Honda, there was no duty to disclose information to the public at large. Id. When there is an arm's length transaction, the court stated: ... mere non-disclosure of material facts ... is ordinarily not actionable misrepresentation unless some artifice or trick has been employed to prevent the representee 1536 from making further independent inquiry, though non-disclosure of material facts may be fraudulent when the other party does not have an equal opportunity to become appraised of the facts. Id. The court found that plaintiffs had failed to allege any such artifice or trick or the lack of an equal opportunity to become appraised of the facts and therefore had failed to state a claim for fraudulent concealment. Id. at 65. Plaintiffs in the present case have also failed to allege a lack of an opportunity to become appraised of the facts and therefore dismissal of their claims is appropriate. Another court recently followed the Taylor court's rejection of imposing a duty to disclose on an automobile manufacturer in a case with closely analogous facts. See Mason v. Chrysler Corp., 653 So. 2d 951, 954-55 (Ala.1995). In Mason, plaintiffs alleged defendant Chrysler Corporation had a duty to disclose recurring defects in Chrysler's Fifth Avenue automobiles. Plaintiffs alleged they had seen and heard national advertisements which indicated that the Fifth Avenue was "a luxury car and was a quality-engineered, reliable, and smooth-riding car." Id. at 952. The court held that defendant's advertisements were nothing more than puffing and could not be relied on as a basis for a fraud claim. Id. at 954. In addition, the court noted that Chrysler did not owe plaintiffs a duty to disclose the defects because there was no evidence of a confidential relationship and the only contact plaintiffs had with Chrysler was viewing their national advertisements and presenting the vehicle for repair. These facts, standing alone, did not require Chrysler to disclose the information. Id. The facts in Mason are strikingly similar to the facts in the present case and Mason provides strong support for dismissing plaintiffs' fraud claims. Plaintiffs have also failed to plead their claims for fraudulent concealment with the specificity required of Rule 9(b). A plaintiff bringing a claim for fraudulent omission must allege what the omissions were, the person responsible for failing to disclose the information, the context of the omission and the manner in which it misled plaintiff and what defendant obtained through the fraud. See Weaver v. Chrysler Corp., 172 F.R.D. 96, 101 (S.D.N.Y.1997) (order granting defendant's motion to dismiss) (citing Adler v. Berg Harmon, 816 F. Supp. 919, 924 (S.D.N.Y.1993)). In Weaver, the court dismissed plaintiff's claim for fraudulent omission in part because plaintiff failed to allege when "he read, saw, or heard Chrysler's representations, advertisements and promotional materials that omitted the reference to the defective child seats." Id., at 102. Plaintiffs in the present case have also failed to allege if, when, where or how they heard any of defendant GM's representations. Plaintiffs have failed to plead fraudulent concealment with the specificity required by Rule 9(b). Plaintiffs have not adequately alleged reliance and have failed to allege facts which support imposing a duty to disclose on defendants. F. Violations of State Consumer Protection Acts General Motors and Kelsey-Hayes Plaintiffs allege that defendants' actions violated the state consumer fraud statutes of each of their states. The pleading requirements of Rule 9(b) apply to claims based on state consumer fraud statutes. See FDIC v. Bathgate, 27 F.3d 850, 876 (3rd Cir.1994); See also NCC Sunday Inserts, Inc. v. World Color Press, Inc., 692 F. Supp. 327, 330 (S.D.N.Y.1988) (holding requirements of Rule 9(b) apply to state based deceptive trade practices claims because Rule 9(b) is a procedural rule). Plaintiffs have failed to plead these claims with the specificity required by Fed.R.Civ.P. 9(b). Each state's statute is unique and plaintiffs are required to plead the essential elements of each one. Plaintiffs have completely failed to do so. It is clear that some of the plaintiffs' claims under their individual state statutes are patently deficient. For example, the Mississippi statute does not allow class action lawsuits, which bars plaintiffs David and Renee Roberts from bringing their claim on behalf of a purported class. See Miss.Code Ann. § 75-24-15(4) (West, WESTLAW through 1996 Reg. Sess.). In addition, plaintiff Alex H. Opal cannot maintain his claim *1537 for consumer fraud under the California consumer fraud statute because said statute has a statute of limitations of three years and plaintiff Opal purchased his vehicle in 1990. See Cal. Civ.Code § 1783 (West, WESTLAW through 1995-96 Reg. Sess.). Plaintiff's argument that the statute of limitations should be tolled is defeated by his admission that he provided notice to defendant of the defects in 1990. Once he provided notice, he needed to file suit within three years, which he failed to do. Both California and Texas require written notice before the filing of a lawsuit under their statutes and the plaintiffs from those states have not alleged they gave written notice. See Cal. Civ.Code § 1782 (West, WESTLAW through 1995-96 Reg. Sess.); Tex. Bus. & Com.Code Ann. § 17.505 (West, WESTLAW through 1995 Reg. Sess.). Plaintiffs' claims under the state consumer fraud statutes are based on the same statements relied on for their claims for breach of express warranty and common law fraud. As discussed at length in those sections, these statements are puffery and cannot serve as the basis for liability. See Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 462 (Tex.Ct.App.1990). III. CONCLUSION For the foregoing reasons plaintiffs have failed to state a claim upon which relief can be granted. When dismissing a complaint under Rule 12(b)(6), a district court has discretion on whether or not to allow plaintiffs leave to amend their complaint. See Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir.1995) (citing Williams v. Town of Okoboji, 606 F.2d 812, 814 (8th Cir.1979)). Leave to amend shall be freely given "when justice so requires." Fed.R.Civ.P. 15(a). Plaintiffs, however, have not requested leave to amend their complaint, have not submitted a proposed amended complaint, and have not indicated how they would overcome dismissal pursuant to Fed.R.Civ.P. 12(b)(6). It is appropriate, therefore, to dismiss their complaint without allowing leave to amend. See Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir.1994) (holding district court did not abuse discretion in dismissing complaint without leave to amend when plaintiff had not requested leave to amend and had not indicated how he would overcome 12(b)(6) dismissal). Accordingly, IT IS HEREBY ORDERED that defendant Kelsey-Hayes' Motion to Dismiss Plaintiffs' Complaint be and is granted. IT IS FURTHER ORDERED that defendant General Motors' Motion to Dismiss Plaintiffs' Complaint be and is granted. NOTES [1] Each of the following judicial districts had an action pending: Southern District of Florida, Central District of Illinois, Southern District of Mississippi, Eastern District of Missouri, Southern District of New York and Southern District of Texas. [2] Plaintiffs define the purported class to include: "All persons or entities residing in the United States who own or lease a model-year 1989-1996 GM vehicle equipped with an ABS system fabricated by Kelsey-Hayes, excluding defendants and their parents, subsidiaries, affiliates and authorized dealers." (Plaintiffs' Complaint at ¶ 20(a)). [3] Plaintiffs define the pedal-to-the-floor phenomenon as follows: "When the driver applies pressure on the brakes in an effort to slow or stop the vehicle during hard or emergency braking situations, the brake pedal will fall rapidly and without warning to the floor of the vehicle." (Plaintiffs' Complaint at ¶ 5). [4] Plaintiffs also claim that, when the ABS starts to work, the brake pedal often falls below the accelerator pedal which can cause a driver to mistakenly step on the accelerator pedal, resulting in accidents. [5] Unless otherwise noted, all claims are brought on behalf of the purported class. The purported subclass is defined as "All class members who own or lease a model-year 1992 to 1994 Suburban vehicle." (Plaintiffs' Complaint at ¶ 20(b)). [6] Many of these promotional materials describe how the ABS works. Plaintiffs have alleged these descriptions are false because GM has failed to disclose the pedal-to-the-floor phenomenon and the increased stopping distance, but plaintiffs have not argued that the description is otherwise false. (Plaintiffs' Complaint at 19, 20, 23). [7] U.C.C. § 2-313 provides in relevant part: (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. U.C.C. § 2-313, U.L.A. (West, WESTLAW through 1995). [8] U.C.C. § 2-314 governs the implied warranty of merchantability and states in relevant part: (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind ... (2) Goods to be merchantable must be at least such as . . . . . (c) are fit for the ordinary purposes for which such goods are used; U.C.C. § 2-314, U.L.A. (West, WESTLAW through 1995). [9] The plaintiffs in Hininger, like the plaintiffs in the present case, did not claim they had any contact with the component supplier, that the wheels had the supplier's name on them, or that the supplier advertised its product to the public at-large. Hininger, 23 F.3d at 128. [10] Federal Rule of Civil Procedure 9(b) states: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed.R.Civ.P. 9(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371681/	90 Cal. App. 2d 295 (1949) C. C. PURVIANCE, Respondent, v. L. K. SHOSTAK, Appellant. Civ. No. 7561. California Court of Appeals. Third Dist. Feb. 23, 1949. Leland S. Fisher and Brantley W. Dobbins for Appellant. Frank W. Taft and Walter K. Lock for Respondent. ADAMS, P. J. The findings of fact made by the trial court in this action recite that in November, 1943, plaintiff and defendant entered into a joint adventure to purchase certain real property in the city of Vallejo, known as the "Thoreson Apartments," and to share the profits and losses equally; that defendant represented to plaintiff that the property 296 could be purchased for $21,000, and that they could finance it by contributing $4,500 each and securing a bank loan for the balance of $12,000; that the representation by defendant that the property could be purchased for $21,000 was false, as it could be purchased for $16,500, which defendant knew; that at the time said representations were made to plaintiff defendant had already purchased the property for $16,500 but had taken title in the name of Ernest B. Reuben, his brother-in-law, and had the deed from Reuben to plaintiff and defendant deposited with a title company to be delivered to plaintiff and defendant upon payment of $21,000 as above stated; that defendant did not pay his $4,500 share, but deposited with the title company a false receipt from Reuben for the sum of $4,500, and that defendant did not contribute any sum whatsoever to the purchase price of the property; that plaintiff at all times acted by and through his agent and attorney, Russell L. Taft, which was at all times well known to defendant; that thereafter the property was sold by plaintiff and defendant for $37,000, of which sum defendant received $10,000 and plaintiff $10,000. From these findings it was concluded that plaintiff was entitled to judgment against defendant for $4,500, and such judgment was duly entered. On this appeal by defendant Shostak it is not contended that there is not evidence to sustain the findings. We therefore assume that they correctly state the facts. Appellant presents four grounds for reversal, to wit: That the action was not brought by the real party in interest; that the trial court erred in admitting parol evidence to establish the agency of Russell L. Taft for plaintiff; that plaintiff failed to establish proof of nonperformance of the contract; and that plaintiff failed to prove damages. [1] The first of said grounds is based upon the following: A written agreement between Taft and defendant for the purchase of the property wherein the terms are set forth, said agreement being dated November 5, 1943, and in which it is not stated that Taft is acting as agent for plaintiff; the escrow instructions delivered to the title company which are signed by defendant and Taft; the deed from Reuben and his wife which was executed to defendant and Taft; and a final statement, regarding the entire transaction, which was rendered to Taft by defendant, and showed a profit to each of them. Appellant argues that therefrom it must be held that plaintiff was not the real party in interest entitled to 297 prosecute the action, and that parol testimony could not be relied upon to establish that Taft was acting as agent for plaintiff; and that evidence that he was so acting was erroneously admitted in violation of the rule that parol evidence is inadmissible to vary the terms of a written instrument. There is ample evidence in the record that Taft was so acting; and that such evidence did not vary the terms of the aforesaid writings but only explained them has been held in numerous decisions of the courts of this state, citing and relying upon Ford v. Williams, 21 U.S. (How.) 287 [16 L. Ed. 36]. In that case it was held that the contract of an agent is the contract of the principal and he may sue or be sued thereon, though not named therein; that notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, the principal may show that the agent who made the contract in his own name was acting for him; and that this proof does not contradict the writing but only explains the transaction. Ford v. Williams is cited and followed in numerous California decisions, to wit: Curran v. Holland, 141 Cal. 437, 439-440 [75 P. 46]; Schader v. White, 173 Cal. 441, 445 [160 P. 557]; Rubin v. Platt Music Co., 92 Cal. App. 203, 207, 210 [268 P. 396]; Buckley v. Shell Chemical Co., 32 Cal. App. 2d 209, 215 [89 P.2d 453]; Milonas v. Sarantitis, 109 Cal. App. 343, 345 [292 P. 978]. Also see Chapman v. Java Pac. Line, 241 F. 850, 853 [154 C.C.A. 552]; 2 Am.Jur. 448, pp. 355- 356. [2] Appellant's next contention merits little attention. Though plaintiff made some profit on the deal his profit was less than it would have been had the actual price of $16,500 for the property been considered in the division of the proceeds of the subsequent sale. Furthermore, a breach of trust or confidence, such as was shown here, will justify a judgment for damages even though no actual damage is shown. See Humburg v. Lotz, 4 Cal. App. 438, 442 [88 P. 510], and cases there cited. Also see Fink v. Weisman, 129 Cal. App. 305, 310-311 [18 P.2d 961], and Menefee v. Oxnam, 42 Cal. App. 81, 87 [183 P. 379]. [3] Appellant finally contends that respondent failed to sustain the burden of proof as to the failure of defendant to contribute his $4,500. He argues that the court was bound to accept as true the testimony of appellant and that of Mrs. Reuben, which was to the effect that defendant paid the 298 $4,500 directly to the Reubens, by way of a note, and that said note was subsequently paid by defendant, a receipt by the Reubens for said payment of $4,500 having been filed with the title company instead of the cash. We think that there is ample in the record to sustain the trial court's finding. An appellate court must view the evidence in the light most favorable to respondent and indulge all intendments which favor the sustaining of the findings. The trial court was the sole judge of the credibility of the witnesses, including appellant, and was free to disbelieve appellant's testimony, even uncontradicted, if any rational ground existed for so doing. (Shapiro v. Equitable Life Assur. Soc., 76 Cal. App. 2d 75, 96-97 [172 P.2d 725].) It appears without question that at the time that defendant first discussed the purchase of property with plaintiff, and at the time the agreement between Taft and defendant was entered into on November 5, 1943, title to the property was in one Giacomelos; that it was not conveyed to the Reubens until November 16, 1943, by deed recorded November 23d, and that the deed from the Reubens to defendant and Taft was recorded less than four minutes thereafter. The title company received but $16,500, which was the amount for which Giacomelos sold the property, and the latter had no dealings with the Reubens. There had apparently been other deals between defendant and Reuben who was his brother-in-law, wherein defendant had borrowed from Reuben. Defendant concealed from plaintiff and Taft the fact that he had put up no money on the transaction and had secured the property for $16,500 instead of $21,000 as represented; and it is significant that he did not call Reuben as a witness. The whole course of Shostak's dealings indicates that he deliberately diverted $4,500 to his brother-in-law in violation of his confidential relationship with plaintiff, his joint adventurer, and justified the conclusion of the trial court that the receipt for the $4,500 from Reuben was fictitious. Respondent in his brief before us requests that we make an additional finding to the effect that plaintiff furnished all of the moneys used in the purchase of the property, that defendant was repaid $4,500 and the additional sum of $4,773; and that the judgment be increased accordingly. He relies upon section 956a of the Code of Civil Procedure; but that section and article VI, section 4 3/4, of the Constitution authorizing it, provide that the making of such additional findings is discretiona with an appellate court (Replogle v. Ray, 299 48 Cal. App. 2d 291, 311 [119 P.2d 980]); and in this case, since the trial court saw fit to fix the award of damages in the amount of $4,500 only, we are not disposed to make additional findings in order to support an increased judgment for plaintiff. The request for additional findings is denied and the judgment of the trial court is affirmed. Peek, J., and Thompson, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371714/	114 S.E.2d 683 (1960) 252 N.C. 699 John E. McCOMBS, Administrator of the Estate of Joe Washington Scott, Jr., v. McLEAN TRUCKING COMPANY and William Lester Oliver. David V. MILLER, Doing Business as Interstate Motor Lines, v. McLEAN TRUCKING COMPANY and William Lester Oliver. No. 594. Supreme Court of North Carolina. June 10, 1960. 686 Smith, Moore, Smith, Schell & Hunter, Greensboro, Haworth, Riggs & Kuhn, High Point, for plaintiffs appellees. Richmond Rucker, Spry & Hamrick, Winston-Salem, for defendants appellants. WINBORNE, Chief Justice. Appellants present on this appeal six questions for decision. We treat them in the order in which they are presented. The first challenges the ruling of the trial judge in denying defendants' motions for judgment as of nonsuit renewed at the close of all the evidence, G.S. § 1-183. It being admitted that the collision involved in this action occurred in Virginia, "the question of liability for negligence must be determined by the law of that State. The rule in such cases is that matters of substantive law are controlled by the law of the placethe lex loci, whereas matters of procedure are controlled by the law of the forumthe lex fori. Thus the methods by which the parties are required to prove their allegations, such as the rule of evidence, and the quantum of proofs necessary to make out a prima facie case, are matters of procedure governed by the law of the place of trial * * Therefore the question whether the evidence offered was sufficient to carry the case to the jury over defendant's motion for judgment as of nonsuit is to be determined under application of principles of law prevailing in this jurisdicton." So wrote Johnson, J., for the Court in Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558, 560. See also Harrison v. Atlantic Coast Line R. Co., 168 N.C. 382, 84 S.E. 519; Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11. In this State on a motion to nonsuit under provisions of G.S. § 1-183, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. Indeed in considering such motion "the defendant's evidence, unless favorable to the plaintiff is not to be taken into consideration except when not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff," Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing cases. See also Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543. Therefore, taking the evidence offered by the plaintiffs, in the main predicated on physical facts, upon which they rely (Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, and cases cited), and so much of the defendants' evidence as is favorable to the plaintiffs, or tends to explain and make clear that which has been offered by the plaintiffs, in the light most 687 favorable to plaintiffs, this Court is of opinion, and holds that there is sufficient evidence to take the case to the jury on the issue of negligence of defendant Oliver, imputed to defendant McLean. And it is appropriate to note that the General Assembly of Virginia declares in respect to rules of the road, Code of Virginia, Chap. 46.1-207, "drivers of vehicles proceeding in opposite direction shall pass each other to the right, each giving to the other, as nearly as possible, one-half of the main traveled portion of the roadway." And while the driver of an automobile along a public highway, who sees another automobile approaching on the wrong side of the road, has the right to assume that the driver of such vehicle will observe the law and seasonably move over to his right side so as to pass safely, and further has a right to this presumption until he sees that such driver is not going to turn to his right side, it then becomes his duty to exercise ordinary care to avoid a collision. Johnson v. Kellam, 162 Va. 757, 175 S.E. 634. And in this State the holding of this Court in that respect is epitomized in headnote in Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598, reading as follows: "The failure of a motorist to keep his car on his right side of the highway in passing a vehicle traveling in the opposite direction is negligence per se, and whether such negligence is a proximate cause of a collision is ordinarily for the jury to determine." G.S. § 20-146 and G.S. § 20-148. The second clause of the first question is without merit. For reason stated hereinabove in respect to the question as to nonsuit, a directed verdict would have been error. See McIntosh N.C. P & P, Vol. 2, Sec. 1516, pages 52-53. The third question relates to the action of the Court in overruling defendants' objection to plaintiffs' counsel in argument to jury, reading that portion of G.S. § 97-41 which provides: "In all other cases the total compensation paid including the funeral benefits, shall not exceed ten thousand dollars," and the statement of counsel as to the amount of the award to which dependents of intestate are entitled. The record in this respect shows that during the argument to the jury counsel for defendants read portions of G.S. § 97-10 concluding with comment "that under those circumstances it was unlikely that the widow and children of deceased would be given any part of the recovery." Then counsel for plaintiffs, in his argument to jury, read the portion to which reference is first above quoted. And the counsel for plaintiffs contends that what he read was invited by the remarks of counsel for defendant so related. Be that as it may, it appears that the trial judge in his charge to the jury laid the matter to rest in this manner: " * Now, none of the issues to be answered by you in this cause have any reference to that statute, and you therefore will not be concerned by that aspect of the case in any manner whatsoever, but you will answer these issues presented to you as you find the facts to be under the instructions of law to be given to you by the court without regard whatever to the situation that obtains in these actions by virtue of the statute and by virtue of the allegations with reference thereto, that being a matter with which you are not concerned and that your issues will not in any manner affect or reflect when you answer the issues of fact in this cause." And the record does not show that anybody objected. The fourth relates to the exclusion of testimony of defendant Oliver in respect to use of toy vehicles to show relative locations of vehicles upon the highway. In Stansbury's North Carolina Evidence, Sec. 34, it is stated that "The North Carolina Court has often said that materials of this sort are not evidence, or are not substantive evidence, and that they can be used only to `illustrate' or `explain' the testimony of a witness." The record fails to disclose *688 on what ground the use of the material was excluded. It will, therefore, be assumed that the court had a valid reason. In any event it does not appear that defendants have been prejudiced by the ruling of the court. The fifth and sixth questions purport to point to the reading and summarizing by the court statutory provisions as to rules of the road as inapplicable to the facts of the case at bar, and as not supported by the evidence. In this connection it is worthy of note that in a record of more than 60 pages of pleadings and more than 100 pages of testimony, a charge of 66 pages is clear and free from error. It may be that sporadic instances of slight error may be found. Yet a careful reading of all evidence and the entire charge fails to make error appear for which the verdicts and judgments below should be disturbed. Hence in the trial below, there is No error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2217342/	99 Mich. App. 463 (1980) 297 N.W.2d 702 PEOPLE v. WILLIAMS Docket No. 48777. Michigan Court of Appeals. Decided August 13, 1980. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, 464 Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people. Robert E. Slameka, for defendant on appeal. Before: BASHARA, P.J., and D.C. RILEY and E.A. QUINNELL,[] JJ. PER CURIAM. Defendant was charged with felonious assault, MCL 750.87; MSA 28.282, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). At a bench trial, he was found guilty of felonious assault but not guilty of the felony-firearm charge. The verdicts are inconsistent. The only weapon which could support a conviction of felonious assault was the same weapon which would lead to a finding of guilt under the felony-firearm charge. The trial court found, since the firearm was never introduced in evidence, that it had a reasonable doubt as to the defendant's guilt of the felony-firearm charge. There is ample Court of Appeals authority that the conviction of felonious assault, therefore, cannot stand, inter alia, People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979), People v Lewis, 94 Mich App 752; 290 NW2d 73 (1980). However, we add a caveat. The prosecutor accurately notes that, although the Michigan view of inconsistent verdicts is well established in numerous decisions of the Michigan Court of Appeals, that view is the minority American view; Anno: Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 465 259. He, therefore, suggests that this court abandon the present rule as to inconsistent verdicts, a suggestion which we decline in view of the many appellate decisions of this state supporting the present view. However, at least in a jury trial, if not in a bench trial, we recognize that the Supreme Court may see fit to change the rule. In People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), the Supreme Court cited the opinion of Justice Holmes in Dunn v United States, 284 US 390; 52 S Ct 189; 76 L Ed 356 (1932), Dunn is perhaps the leading authority for the majority view that inconsistent verdicts in criminal cases do not require reversal. The philosophy behind the lesser-included offense analysis found in Chamblis is also consistent with that view. The opinion of Judge KELLY, dissenting in Lewis, supra, also suggests that counsel may wish to preserve the point for review in appropriate cases. Conviction reversed and defendant discharged. NOTES [] Circuit judge, sitting on the Court of Appeals by assignment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371867/	24 Wn. App. 405 (1979) 601 P.2d 1292 THE STATE OF WASHINGTON, Respondent, v. MAURICE VASTER, Appellant. No. 6201-1. The Court of Appeals of Washington, Division One. October 8, 1979. John A. Strait, for appellant (appointed counsel for appeal). 406 Norm Maleng, Prosecuting Attorney, and Marsha J. Pechman, Deputy, for respondent. RINGOLD, J. Maurice Vaster appeals the judgment and sentence imposed upon his conviction of second-degree attempted burglary, two counts of first-degree burglary, and two counts of possessing stolen property. Three questions are posited in this appeal, which we answer in the affirmative. 1. Was the search of defendant's residence for a suspect valid under the Fourth Amendment? 2. Was the seizure of the 16 mm. and 35 mm. cameras permissible within the "plain view" doctrine? 3. Was the search warrant for the second search valid? During the early morning hours of May 31, 1977, police officers responded to a report of a possible burglary at the residence of Anita Dias, 5020 30th Avenue South in Seattle. This was the third time during the month of May that police had responded to burglary reports in the neighborhood. Upon arriving at the scene they ascertained that no one was at home, but a pane of glass from the front door had been broken and the door had been opened. There were wet footprints on the patio leading to the front door and away from it. While inside Officer Baumgartner answered a telephone call from a neighbor who stated she had heard an alarm go off and seen a black male in a jogging suit leave the front door area of the Dias residence, run down the block approximately two doors and into a driveway. The officer proceeded down the block two doors to 5040 30th Avenue South. A K-9 police unit's tracking led them to the same location. At that address the officers noticed that the door to the enclosed front porch was ajar, and inside the door they observed muddy footprints matching those on the patio of the Dias residence. The officers concluded there was probable cause to search the residence for a suspect. They knocked at the door and a Mrs. Wilson, also known as Mrs. Vaster, answered. They learned that she was the 407 owner and informed her that a suspect had been traced to her home, and asked permission to conduct a search. She assented. Upon entry, the officers noted muddy footprints on the kitchen floor similar to the ones on the patio. About this time the defendant Maurice Vaster and his sister confronted the officers and objected to the search. The defendant's sister specifically demanded that the officers secure a warrant. The officers ignored this demand and continued their search through the house for the suspect. Mrs. Wilson did not join in asking the officers to leave or to secure a search warrant. In an upstairs bedroom Officer Jankauskas observed a 16 mm. movie camera with a luminous sticker reading "Environmental Protection Agency." He knew that upon the sale of government property, identifying stickers are removed. He inquired whether anyone living in the house worked for the Environmental Protection Agency (EPA) or whether anyone owned the camera. Vaster admitted that he did not work for the EPA or own the camera. The officer then seized the 16 mm. camera. Officer Jankauskas also observed a 35 mm. camera on a nightstand similar to a 35 mm. camera that had been reported stolen in a car-prowl incident he had investigated at the Dias residence. He picked up the camera, examined it and memorized its serial number, but did not remove it from the residence. A check of the serial numbers of both cameras confirmed that they were stolen. This information was included in the affidavit of probable cause used for securing a search warrant. A subsequent search of the Wilson residence authorized by the search warrant uncovered numerous other stolen items which were introduced over objection into evidence at defendant's trial. CONSENT TO SEARCH [1, 2] Whether consent is voluntary or coerced is a question of fact to be determined from all circumstances. State v. Johnson, 16 Wn. App. 899, 559 P.2d 1380 (1977). 408 The record indicates that the officers fully informed Mrs. Wilson, the owner of the home, of their intention to search for a suspect. The record reflects that Mrs. Wilson's consent was given voluntarily, although reluctantly. Consent reluctantly given does not amount to coercion. State v. Breckenridge, 4 Wn. App. 328, 481 P.2d 26 (1971). Mere persuasion does not constitute coercion. State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973). The defendant cites Tompkins v. Superior Court, 59 Cal.2d 65, 378 P.2d 113, 27 Cal. Rptr. 889 (1963), for the proposition that a joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time. Tompkins v. Superior Court, supra, is distinguishable from the instant case: (1) the consenting occupant was not present at the time of the search, (2) the officer failed to disclose his purpose to the occupant who was present when attempting to search, and (3) the occupant who was present was not told that consent to enter had been granted by the absent occupant. In the instant case (1) no contention is made that Mrs. Wilson as the owner of the house and a joint occupant lacked authority to admit the officers into the house and to consent to the search for the suspect, (2) the officers disclosed their desire to search in the presence of the defendant, (3) Vaster was aware that his mother had consented to the search, and (4) Mrs. Wilson did not revoke the consent to search. We conclude the Tompkins rule is inapplicable here. Vaster's reliance upon Duke v. Superior Court, 1 Cal.3d 314, 461 P.2d 628, 82 Cal. Rptr. 348 (1969), and Lucero v. Donovan, 354 F.2d 16 (9th Cir.1965) is misplaced; both cases depend upon Tompkins for their results. In People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L.Ed.2d 108, 94 S.Ct. 1608 (1974), the defendant had exclusive control of the area within his mother's house which was searched. Also, prior to the search the defendant locked the door to his room 409 and told his mother not to allow anyone to enter. In Nunn, the court stated: [W]e find that the defendant had a reasonable expectation of privacy, and that this reasonable expectation was afforded the protection of the rights granted by the fourth amendment. No valid waiver of rights having been made, and a search by policemen having been performed, the defendant's fourth amendment rights were violated and the evidence seized during this search is inadmissible. People v. Nunn, supra at 354. In the present case there is no evidence that the defendant exercised exclusive control over any portion of the residence at 5040 30th Avenue South, as was shown in Nunn. On the contrary, Mrs. Wilson's bedroom door alone was equipped with a lock; this was the only evidence of any exclusive use and control of any area in the house. Vaster made no manifestation of his expectation of privacy as to his bedroom but rather protested generally the officers' presence. We hold that Mrs. Wilson voluntarily consented to a search of her home for a suspect, which consent was never revoked. The police, however, were not authorized to make a general search of the house but only a limited one searching for a suspect. The seizures of the 16 mm. and 35 mm. cameras were outside the scope of the consent. Only an application of the "plain view" doctrine would permit constitutional seizure of the cameras. "PLAIN VIEW" DOCTRINE [3] In State v. Murray, 84 Wn.2d 527, 527 P.2d 1303, cert. denied, 421 U.S. 1004, 44 L.Ed.2d 673, 95 S.Ct. 2407 (1975), our Supreme Court stated at pages 533-34: The Court of Appeals, in State v. Dimmer, 7 Wn. App. 31, 33, 497 P.2d 613 (1972), correctly analyzes Coolidge v. New Hampshire, supra, and the application of the plain view doctrine as follows: In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) it was held that objects 410 in plain view found inadvertently by police officers while searching under a valid warrant may be seized if it becomes immediately apparent to the police that they have evidence before them. This "plain view" doctrine is an exception to the strict rule announced in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The Supreme Court held, in 275 U.S. 192, 196, that: The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. The court, in Coolidge, has now carved out a common sense "plain view" exception to this rule with limiting safeguard requirements added to assure that a proper limited search does not become an unconstitutional general exploratory search. These safeguard requirements needed to justify a "plain view" seizure include: a prior justification for intrusion, an inadvertent discovery of incriminating evidence, and immediate knowledge by police that they have evidence before them. (Some italics ours.) See also State v. Nichols, 20 Wn. App. 462, 467, 581 P.2d 1371 (1978). Having held the consent to search was valid, we conclude that the officers were legally on the premises and fulfilled the first requirement of the "plain view" doctrine. The facts indicate that the officers' discovery of both the 16 mm. camera and the 35 mm. camera was inadvertent. Therefore, the second requirement was met. The third requirement of the doctrine is satisfied when an officer has probable cause to believe that what he is viewing is incriminating evidence. State v. Campbell, 13 Wn. App. 722, 537 P.2d 1067 (1975). In the case of the 35 mm. camera, the officer knew the camera was valuable and had a market value of $500; that a similar 35 mm. camera of such value had been reported stolen in a car-prowl incident which he had personally investigated; that a suspect had been seen leaving a home 411 that had been forcibly entered (perhaps burglarized) and entering the approximate area of the house the officer was then searching. Finally, the officer believed it to be incongruous that such an expensive camera would be located in a house the officer testified was of "modest means." Based on this information the officer immediately had probable cause to believe he was viewing incriminating evidence, and under the "plain view" doctrine he was authorized to seize the same. We conclude that the seizure of the serial number of the 35 mm. camera was proper as all three requirements of the "plain view" doctrine were met. As to the 16 mm. camera, the first two requirements are satisfied. Further, it was apparent to the officer without touching either the case or the camera that it had a sticker reading "United States Environmental Protection Agency." He recognized that the camera had a value of approximately $1,500 and knew that when the government disposes of such property as surplus, all such identity stickers or stencils are removed. The fact that the officer made inquiries whether Vaster or anyone in the house owned the camera or worked for the EPA does not negate probable cause to believe he was viewing incriminating evidence. As the trial court noted "anything else would have subjected the officers to criticism." The officer had the requisite probable cause to believe that the 16 mm. camera thus observed was stolen property and properly seized it. The holding in State v. Palmer, 5 Wn. App. 405, 410-11, 487 P.2d 627 (1971) as restated in State v. Campbell, supra at 729 is apposite: [W]e held the plain view doctrine applicable where the evidence seized was inside of a brown bag, and thus technically not "immediately" known to be evidence, where the officers had, as they did here, probable cause to believe that incriminating evidence was contained therein. See Commonwealth v. Cohen, [359 Mass. 140] 268 N.E.2d 357 (1971) (small sealed manila envelope visible from place of arrest). 412 VALIDITY OF SEARCH WARRANT [4] The seizure of the serial number of the 35 mm. camera and of the 16 mm. camera was lawful. The cameras' status as stolen property was confirmed by the police investigation. This information, together with the recitation of the factual circumstances leading to the search of the Wilson home for a suspect, all of which was contained in the affidavit, provided the issuing judge with sufficient reliable underlying facts and circumstances to allow him to conclude there was probable cause to issue the warrant and authorize a search of 5040 30th Avenue South for stolen items. State v. Werth, 18 Wn. App. 530, 571 P.2d 941 (1977). Vaster further contends that he was represented by incompetent and ineffective counsel. Our review of the record satisfies us that he was ably and competently represented. State v. Myers, 86 Wn.2d 419, 545 P.2d 538 (1976). The judgment and sentence is affirmed. ANDERSEN, J., concurs. DORE, J. (concurring in part, dissenting in part) I would affirm all counts of conviction, except count 4, which I would reverse. I wholeheartedly agree with the majority's statement We hold that Mrs. Wilson voluntarily consented to a search of her home for a suspect, which consent was never revoked. The police, however, were not authorized to make a general search of the house but only a limited one searching for a suspect. The seizures of the 16 mm. and 35 mm. cameras were outside the scope of the consent. Only an application of the "plain view" doctrine would permit constitutional seizure of the cameras. I also concur in the majority's statement that State v. Murray, 84 Wn.2d 527, 527 P.2d 1303, cert. denied, 421 U.S. 1004, 44 L.Ed.2d 673, 95 S.Ct. 2407 (1975), controls and sets forth the criteria for a valid and constitutional "plain view" seizure. These safeguard requirements needed 413 to justify a "plain view" seizure include (1) a prior justification for intrusion, (2) an inadvertent discovery of incriminating evidence, and (3) immediate knowledge by police that they have evidence before them. In reference to the 16 mm. camera, which is the basis for the defendant's conviction under count 4, with the attached EPA (Environmental Protection Agency) sticker, the first two requirements of Murray are satisfied. However, when the officer made inquiries whether the defendant or anyone in the house owned the camera or worked for the EPA, this clearly evidenced that the officer did not have immediate knowledge the camera was stolen. From the record it is clear that without an exploratory question and answer as to whether any occupant worked at the Environmental Protection Agency, the officer was uncertain as to whether the 16 mm. camera was stolen. Thus, an essential requirement of the "plain view" doctrine was missing. I also hasten to point out that the officer never testified that he had reason to believe that the camera was stolen, independent of the information he received through his inquiry as to employment at the EPA. The constitution does not permit an officer, although legally on the premises, to direct questions to the occupants to secure information to satisfy himself as to whether items he is viewing are stolen so he can make a seizure under the "plain view" doctrine. This is exactly what happened in the subject case. Consequently, I would have held that the seizure of the 16 mm. camera was illegal, as the third requirement of the "plain view" doctrine was not satisfied and therefore defendant's conviction on count 4, which was predicated on the theft of the 16 mm. camera, should be reversed. Reconsideration denied December 19, 1979.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371873/	216 Ga. 30 (1960) 114 S.E.2d 524 UNITED HOSPITALS SERVICE ASSOCIATION v. FULTON COUNTY et al. 20847. Supreme Court of Georgia. Argued April 12, 1960. Decided May 5, 1960. 31 Buchanan, Edenfield & Sizemore, for plaintiff in error. Smith, Kilpatrick, Cody, Rogers & McClatchey, Harold Sheats, J. C. Murphey, contra. DUCKWORTH, Chief Justice. "All institutions of purely public charity" may be exempt by law from taxation. Upon the meaning of the above italicized words, contained in art. 7, sec. 1, par. 4 (Code § 2-5404) of the Constitution, rests the fate of the present case. There is an array of decisions by this court in 32 which this provision of the Constitution was applied to given cases and judgments rendered which were made to depend upon whether the facts brought the cases under the Constitution. We will attempt to analyze and discuss some of those decisions later. But we wish to insure that our own thinking comprehends all and not just a part of the above-quoted portion of the Constitution. There are infinite charities that deserve the plaudits of all mankind, but the Constitution restricts tax exemption of institutions of charity to those and those only that are "purely" charity and also that are "public" charity. Without a positively fixed recognition of the indispensability of the presence of these two qualifying words, courts would ramble in a wilderness of private charitable actions in seeking an answer to their eligibility to tax exemption. We have looked with apprehension upon national legislation under the "general welfare clause" of our Federal Constitution which may be welfare for special groups but not the general public. Our great admiration for all charitable acts must not cause us to overlook the plain mandate of the Constitution. And while we know the human misery caused by inability of many to pay for adequate hospital services, and recognize the sound and wise policy of letting many pay insurance premiums to enable the insurer to furnish hospital service to the few who require it, yet these considerations do not in any degree control or even influence our construction of the Constitution. The plaintiff's petition attaches a copy of the contract or insurance policy which it issues to its members. Not the public, not just the poor and needy, but those and only those whose application is approved by the petitioner are allowed to obtain the benefits covered by the policy. This means that the petitioner has the right to accept applications from those well able to pay for hospital service and to reject the poor and needy. And every policy holder is required to pay premiums whether he requires services or not, and once he has received the amount of services paid for, he must either leave the hospital before he is physically able or look elsewhere for charity to provide such needed services. This brief recital of relevant facts demonstrates (1) that only such hospital services as are paid for are 33 available; (2) such services are not available to the public, but confined entirely to the private individuals whose applications and money have been accepted; (3) the poor and needy may all be denied any such services; and (4) only the amount of service specified in the policy and paid for by the members is given, and after that this institution contributes nothing, and charity either private or public is the only hope for additional needed hospital service for those who are unable to pay. The legislative attempt (Ga. L. 1950, pp. 335, 340; Code, Ann., § 99-1018) to construe the law it was enacting by declaring the institutions therein provided for to be purely public charity and exempt from taxation under the Constitution (Code § 2-5404) is an invasion of the exclusive jurisdiction of the Judicial Department to construe laws and is therefore void. McCutcheon v. Smith, 199 Ga. 685 (35 S. E. 2d 144); Atlanta National Building &c. Assn. v. Stewart, 109 Ga. 80 (35 S. E. 73); International Business Machines Corp. v. Evans, 213 Ga. 333, 335 (99 S. E. 2d 220). That the organization is non-profit and its charter as well as the statute under which it is chartered declare it to be a charitable and benevolent institution exempt from taxation, do not make it such. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124 (14 S. E. 2d 744). Nor does the fact that it serves a benevolent purpose make it a purely public charity. Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349 (9 S. E. 2d 165); Elder v. Henrietta Egleston Hospital for Children, 205 Ga. 489 (53 S. E. 2d 751). Cases involving trusts give the word "charity" a broader meaning than the tax-exemption cases. Houston v. Mills Memorial Home, 202 Ga. 540 (43 S. E. 2d 680). The following cases, relied on by the plaintiff in error, are inapplicable for the reasons we shall set forth. As pointed out in Tharpe v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810 (196 S. E. 762, 116 A. L. R. 373), the boys and this includes all boys within the specified ages may become members without paying dues, and are given various courses of instruction by teachers employed by the scout council. They may use the camp without charge except during the summer convention, when they are required to pay for their food, but all 34 other facilities are free. Another case so relied upon is Linton v. Lucy Cobb Institute, 117 Ga. 678 (45 S. E. 53). This was a school case, and tax exemption was based on the provision of the Constitution that "all buildings erected for and used as a college, incorporated academy, or other seminary of learning" may be exempted from taxation. Another case relied upon is Elder v. Atlanta-Southern Dental College, 183 Ga. 634 (189 S. E. 254), which turned upon the same provision of the Constitution, and hence neither controls here where another provision of the Constitution is relied upon. In the Egleston Hospital case, supra, it was pointed out that all funds received from patients able to pay, as well as $78,716.32 donated by friends, were expended for the operation of the hospital, where those unable to pay were given the services free. We have no such factual situation here. Finally, they rely upon Williamson v. Housing Authority &c. of Augusta, 186 Ga. 673 (199 S. E. 43), and while that case went far to allow tax exemption, it too differs on material facts from the instant case. There, only the poor slum dweller, unable to pay for adequate housing and this included all such people were the beneficiaries of the cut-rate housing rent, while here, as pointed out above, no poor or needy person need be given the right to the service offered. It might be confined to those only who are able to pay. There the price is below value, here such need not be true. This distinguishes that case and shows its inapplicability here. We have here neither a requirement that only those in need of help be accepted nor a requirement that those adequately able to pay for such services be excluded. Also, when the amount of services called for in the policy, and hence paid for by the premium called for by the policy, has been given, no free or extra services are given regardless of the distressing need therefor. This is pure and simple insurance in direct competition with private concerns which are engaged in the same business but enjoy no tax-exemption benefit. If our system of private enterprise is to survive, government must not by exempting competitors of free enterprise from taxes aid in destroying it by such unfair competition. The Constitution (Code § 2-5404) does not authorize such tax exemption, and to the extent that Georgia Laws 1950, pp. 335, 340 (Code, Ann., § 99-1018) attempts to *35 exempt same, it is violative of the Constitution and is void. For the foregoing reasons the lower court did not err in sustaining the demurrer and dismissing the petition. Judgment affirmed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371875/	114 S.E.2d 87 (1960) 252 N.C. 425 A. F. PATTON and Vann Doris Patton v. Henry DAIL. No. 458. Supreme Court of North Carolina. April 27, 1960. 88 Simms & Simms and Smith, Leach, Anderson & Dorsett, Raleigh, for plaintiffs, appellants. Teague, Johnson & Patterson, Raleigh, for defendant, appellee. PARKER, Justice. A. F. Patton is an electrical contractor. On 20 December 1958 he and his wife were the owners of a four and one-half room house with bathroom, located about five miles from the city of Raleigh, which they rented. Plaintiffs lived in the city. About 8:15 a. m. o'clock on this day defendant, who is a plumber, by contract with A. F. Patton met him at this house and replaced a spigot in the kitchen. After defendant left, A. F. Patton turned on the water and discovered a leak under the house. A. F. Patton went under the house to find the leak, and found a bursted joint in the pipe under the bathroom. The bathroom was about 14 to 16 inches above the ground. The house had no basement. He turned the water off, and disconnected the electric hot water heater. He returned to the city about 9:15 a. m. o'clock and instructed defendant to go back and repair the leak. About 10:00 a. m. o'clock on this day Bennett Rowland, who had rented this house from plaintiffs, began moving his furniture in. He finished moving about 2:30 p. m. o'clock, locked up the house, and left, because he had no oil to heat it, and would not have any until two days later. Before leaving he went into all the rooms to see if there was any evidence of fire or smoke, and found none. He heard of the fire the next day. Some of his furniture was burnt up, other parts of it were damaged by fire and smoke. Between 4:30 and 5:30 p. m. o'clock defendant telephoned plaintiffs' daughter, Harriet Patton, and asked for her father. When she said he was out, defendant said he had completed the work at the house, but had not turned on the water. About 6:00 or 6:30 p. m o'clock on this day Emmett Bagwell and his wife driving to Raleigh were travelling along the road, which is approximately 50 yards from this house. He drove into some smoke, looked toward the house, and saw it was on fire underneath. He backed up, and went to Lewis Wilkins' to call the Garner Fire Department. He returned to the house. He testified on cross-examination: "When I got there it was fire underneath and burnt through the floor. The first thing I seen when I walked in there was fire underneath the house. I didn't see no hole in the floor. The fire burnt through the floor. I saw that hole, saw it when I first got there. I saw it from underneath the house." Lewis Wilkins went to the house. He testified on direct examination: "The first flame I saw was under the house. It was burning both the timber under the house and also a little dry grass was burning. Yes I stayed there after that. We was trying to put water on it at that time and while we was trying to put water on it, the flames seemed to have broken loose inside the house then." On cross-examination he said: "I saw some burning timber under the house; that was directly under the bathroom. No other burning except under that area of the house, that's right. * * I said it was approximately 6:30 when Mr. Bagwell stopped by my house. * * * I lived about 150 yards from the house." W. R. (Jack) Johnson is chief of the Garner Fire Department. He and twelve firemen and fire fighting equipment went to this burning house. When he arrived, fire was coming out of the front gable and two windows on the Raleigh side of the house. A bedroom and the bathroom were on the Raleigh side of the house. The fire was concentrated in the area of the bedroom 89 and bathroom, the worst damage was done in that area. He looked under the house. "The wood underneath the bathroom area of the house, the underpinning around the hole was charred somewhat." He had to put some fire out up under the house. A. F. Patton heard of the fire, and arrived at the house about 7:00 or 7:15 p. m. o'clock. The Garner Fire Department was there fighting the fire. He went in the house. The whole front of the ceiling was burnt, and the firemen had knocked holes in the kitchen wall. One bedroom was badly burned, and another destroyed. There was evidence of fire in the attic all over the house. The bathroom was burned up, and there was a big hole, about 3½ feet in diameter, through the bathroom floor. "There were no other holes burnt through the floor anywhere in the house." He could see beneath the hole in the bathroom floor the piece of copper pipe defendant had replaced. About 9:00 or 9:30 p. m. o'clock that night defendant told him "he had replaced a piece of copper pipe under the bathroom. * * Mr. Dail did not say anything in his conversation with me with respect to how he formed that pipe. He just told me that he had sweated pipe at one end at the truck before he went under the house and made the last connection under the house. He told me he had replaced the bursted fitting with a piece of copper pipe. I know what is meant by saying that he sweated one end at the truck. It means sweating one end of the pipe into the adapter so when he went under the house he screwed it in the pipe because you cannot sweat and screw in after it is sweated. There were not more than two joints to this pipe. There is an electrical device that can be used to sweat a connection and make the solder joint. I don't think Mr. Dail said anything to me about what device he used." A. F. Patton returned to this burned house during daylight, and examined the copper pipe defendant had replaced. He testified: "It had been connected up by the use of two copper adapters, copper to iron pipe adapters, sweat joint. The adapter is used to screw into a fitting of iron pipe. It is a galvanized pipe and to the end you slip the copper into it and sweat that joint. Sweat that joint means, that is used by a flamce torch that you heat this pipe and adapter to a temperature and place your solder on it and it runs in and runs around the joint. Both ends of this pipe were attached that way. * * * I have been in the electrical business since about 1932 or 1933. In that connection I have been connected with the construction trade and have had occasion to observe plumbing work being done. I am familiar with the usual accepted methods for doing the work of placing copper pipes to iron pipes, either a sweat joint or a flare fitting. On the pipe replaced by Mr. Dail, a sweat joint was used. I know the usual accepted method for making a sweat joint. Sweat joint is used most commonly and the flare joint is used most whenever they are connecting water heaters, some movable appliance. There was not any flare joint used in connection with this piece of pipe. * * * I am familiar with Mr. Dail's equipment. He and I have worked on jobs. The equipment he uses is the torch, open flame. The type of torch he uses is butane gas torches. That has an open flame when in operation." The house was so badly burned plaintiffs did not repair it. Afterwards the Garner Fire Department burnt what was left of the house for practice. A. F. Patton before leaving the house the morning of the fire turned off the electric hot water heater in the house by disconnecting at the fuse box the two wires leading to this heater. The hot water heater, which was in the bathroom, had rested on a deck. After the fire, the hot water heater had fallen down into the hole burned in the bathroom floor, and the deck on which it was built was burned so that it had fallen down. "The fiber glass in the jacket of the hot water heater was melted but not all of 90 the fiber glass was burned. You could see some of the fiber glass insulation around the bottom of the heater and the bare metal at the top of the water heater." It is well settled law in this jurisdiction that the fact in controversy here, as to the origin of the fire, may be established by circumstantial evidence. Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Lawrence v. Yadikin River Power Co., 190 N.C. 664, 130 S.E. 735; Moore & Co. v. Atlantic Coast Line R. Co., 173 N.C. 311, 92 S.E. 1; Ashford v. Pittman, 160 N.C. 45, 75 S.E. 943. Plaintiffs' evidence, if believed by the jury, is sufficient to establish the following facts: One. The fire, which burned plaintiffs' house, originated under the house directly beneath the bathroom floor, and burned a hole about 3½ feet in diameter through the bathroom floor. No other hole was burned through the floor anywhere else in the house. Two. When the fire burned through the bathroom floor, it broke loose inside the house. Three. Beneath the burned hole in the bathroom floor was a leaking piece of copper pipe the defendant had replaced on the afternoon of the fire. Four. Bennett Rowland, who as a tenant moved his furniture inside the house the day of the fire, locked up the house and left about 2:30 p. m. o'clock on that day. Before he left, he went into all the rooms of the house to see if there was any evidence of fire or smoke, and found none. Five. Defendant, a plumber, by contract with plaintiffs the afternoon of the fire repaired a leak in the water pipes of the house directly beneath the burned hole in the bathroom floor by using a sweat joint. He told A. F. Patton "he had sweated pipe at one end at the truck before he went under the house and made the last connection under the house." Six. "Sweat that joint means, that is used by a flame torch that you heat this pipe and adapter to a temperature and place your solder on it and it runs in and runs around the joint." Both ends of the pipe fixed by defendant were attached that way. Seven. Defendant uses in his work butane gas torches, which have open flames when in operation. Eight. Between 4:30 and 5:30 p. m. o'clock on the afternoon of the fire defendant told Harriet Patton by telephone that he had completed this work. About 6:00 or 6:30 p. m. o'clock this same afternoon Emmett Bagwell driving in a car along a road approximately 50 yards from the house saw a fire underneath the house. Only one other fact is necessary to be established in order to sustain plaintiffs' allegations as to the origin of the fire, to wit, that defendant repaired the leaking water pipe by a sweat joint using for such purpose an open flame gas torch in a negligent and careless manner, so that the wood under the bathroom floor or its sills were set afire, which he did not extinguish before he left, or that he failed to take reasonable precautions and care to see that no flames or smouldering wood were present before he removed himself from beneath the house. In our opinion, the facts and circumstances shown by plaintiffs' evidence would permit, but not compel, a jury fairly and reasonably to infer this fact. In finding said fact the jury would not be left to mere speculation and conjecture. In Frazier v. Suburban Rulane Gas Co., 247 N.C. 256, 100 S.E.2d 501, 503, this Court said: "` * * Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances, and * * * if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence.' Fitzgerald v. Southern R. Co., 141 N.C. 530, 54 S.E. 391, 393, 6 L.R.A.,N.S., *91 337; Peterson v. Tidewater Power Co., 183 N.C. 243, 111 S.E. 8. `The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself.' Henderson v. Atlantic Coast Line R. Co., 159 N.C. 581, 75 S.E. 1092, 1093." Plaintiffs' evidence, in our opinion, is strong enough in probative force to require the submission of the issues to the jury. The judgment of compulsory nonsuit entered below is Reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8312912/	JOHN J. MCCONNELL, JR., United States District Judge This case involves the propriety and application of a non-compete agreement. John Lavin worked for CVS Pharmacy, Inc. as a senior executive for 27 years. He signed a Restrictive Covenant Agreement ("Agreement") in 2017. Within two years of signing the Agreement, Mr. Lavin resigned from CVS and started employment with the PillPack unit of Amazon ("PillPack"). CVS sued Mr. Lavin and the Court granted a temporary restraining order to maintain the status quo. CVS now seeks a preliminary injunction. ECF No. 27. The parties have fully briefed and argued this matter, ECF Nos. 27, 33, 36, All parties waived presentation of testimony but filed substantial and extensive evidence by affidavits attached to their papers. ECF No. 27-1 through 27-8, 30, 33-1 through 33-3, 38, 39. Because the Court finds the Agreement enforceable and applicable to Mr. Lavin's new employment with PillPack, the Court GRANTS CVS's Motion for a Preliminary Injunction. ECF No. 27. I. BACKGROUND Mr. Lavin was a Senior Vice President responsible for leading CVS Caremark's Retail Network. He began work there in the early 1990s. His team totaled 250 employees. Mr. Lavin negotiated with retail pharmacies on behalf of CVS Caremark, a Pharmacy Benefits Manager ("PBM"). PBMs manage prescription benefits for their clients (insurance companies, employers, unions, governments) ("Payers"). The PBMs negotiate with retail pharmacies and mail-order distributors to get the best deal for the Payers and the Payers' subscribers. The parties describe this three-tiered system (Payers-PBMs-Pharmacies) as a complex structure applicable to the pharmaceutical industry. ECF No. 27 at 6. CVS owns both a PBM (CVS Caremark) and thousands of retail pharmacies throughout the country. CVS Caremark also has a mail-based pharmacy that competes in the retail market. In addition to negotiating with retail pharmacies, the Executive Committee tasked Mr. Lavin with analyzing the terms it had with mail-in retail pharmacies for his last three years at CVS Caremark. He took part in "executive-level strategy" with other CVS executives in both the PBM and retail business. This mattered to CVS because of Amazon's entry into the pharmacy 230business through its acquisition of PillPack, a mail-in retail pharmacy. Mr. Lavin signed the Agreement with CVS in 2017. ECF No. 27-4 at 10-18. In exchange for signing the Agreement, CVS awarded Mr. Lavin Restricted Stock Units ("RSUs") that had a value of $157,500. Id. at 1-8. The RSU agreement states that the "award of RSU's ... is expressly subject to and contingent upon the requirement that [Mr. Lavin] shall have fully executed and delivered [to CVS] the Restrictive Covenant Agreement provided by [CVS]." Id. at 7, § 12. The Agreement, under the section captioned "Consideration for Agreement" states that CVS "has awarded [Mr. Lavin] restricted stock units contingent on the execution of this Agreement and compliance with its terms." Id. at 10, § 1. The Agreement mandates that during his employment with CVS and for 18 months thereafter, Mr. Lavin will not "directly or indirectly" engage in Competition with a Competitor. • Competition is described as "providing services to a Competitor of [CVS] ... that: (i) are the same or similar in function or purpose to the services [he] provided to [CVS] at any time during the last two years of [his] employment by [CVS]; or (ii) will likely result in the disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor." Id. at 10, § 2(a). • A Competitor is defined as any entity that "competes with one or more of the business offerings of [CVS] ... includ[ing] (i) [PBMs] ... (ii) retail ...." Id. at 10, § 2(b). The year after he signed the Agreement and received the RSUs, Mr. Lavin began discussions with PillPack about employment. He interviewed with both PillPack and Amazon executives. PillPack offered Mr. Lavin a job as "Director [of] Third-Party Networks & Contracting" reporting directly to PillPack CEO TJ Parker. ECF No. 27-8 at 37. Exactly what Mr. Lavin would be doing with PillPack seems to be a moving target. His role and responsibilities at PillPack seem to ebb and flow with this litigation.1 While PillPack now asserts that Mr. Lavin would be negotiating only with PBMs (excluding CVS Caremark)2 on behalf of PillPack, the original job description of the position for which PillPack hired Mr. Lavin also included negotiating with Payers. ECF No. 27-8 at 37-38. Mr. Lavin is also expected to contribute to PillPack's overall growth strategy and help drive its long term disruptive strategy. PillPack CEO TJ Parker stated that he expected Mr. Lavin to "contribute significantly to [PillPack's] procurement efforts ... and help [PillPack] develop a long term disruptive strategy." Id. at 35. Mr. Lavin told one of his job interviewers from PillPack that he was "excited about the opportunity for disruption and the strategic components of the work." Id. at 34. II. STANDARD OF REVIEW To obtain a preliminary injunction, the burden is on CVS to establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm with no preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. See 231Winter v. Nat. Res. Def. Council Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The court should not award the "extraordinary and drastic remedy" of a preliminary injunction unless CVS meets its burden of persuasion with "substantial proof." See Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (internal quotation marks omitted); see also Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc. , 645 F.3d 26, 32 (1st Cir. 2011) (describing a preliminary injunction as an extraordinary remedy). III. DISCUSSION The Court must first determine if Mr. Lavin's new position with PillPack violates the Agreement-will the new job have Mr. Lavin directly or indirectly engage in Competition (described as either (1) providing services that are the same or similar, or (2) likely to disclose Confidential Information) with a Competitor of CVS? If it does not, then the analysis ends, and Mr. Lavin is free to join PillPack in his new position. If the new position does violate the Agreement, the Court must then determine whether the Agreement violates public policy because it is not "reasonable." And finally, the Court must determine if all the factors for issuing a preliminary injunction exist. A. Does the New Job Violate the Agreement? 1. CVS's Position-Yes i. Same or Similar Services CVS argues that the services Mr. Lavin will provide to PillPack will be the same or similar in function or purpose to the services he provided to CVS. At CVS, Mr. Lavin's primary responsibility had been negotiating with pharmacies on behalf of CVS Caremark. At PillPack, Mr. Lavin will negotiate with PBMs for PillPack's participation in Retail Networks. At both jobs he is involved with negotiations between PBMs and retail pharmacies, just on the opposite side of the table. At both jobs his primary goal is to achieve the most favorable terms for his employer in negotiations related to inclusion in the Retail Network. Mr. Lavin will also negotiate and build relationships with private Payers and public Payers, both of whom are current CVS clients. Mr. Lavin is also expected to contribute significantly to PillPack's overall growth strategy and help drive its "long term disruptive strategy." ECF No. 27-8 at 35. He will be charged with building a strategy to engage directly with Payers that are traditional clients of PBMs. He is also expected to "own" PillPack's drug procurement strategy and relationships and "contribute significantly" to PillPack's pharmaceutical distribution as a service initiative, which includes collaborating directly with PillPack's wholesalers and manufacturers. ECF No. 27-8 at 35, 37. As to mail-in retailers ("MIRs"), Mr. Lavin has negotiated at CVS with mail-in retail pharmacies and knows about the confidential pricing. In his last three years at CVS, Caremark's Executive Committee tasked him with taking a closer look at its terms with MIRs for two critical reasons. First, some MIRs were misclassified as physical retail pharmacies and were collecting higher reimbursement rates; and second, CVS Caremark expected Amazon entering the mail-based pharmacy space and it wanted Mr. Lavin to lead the strategy to thwart this new competitive threat. CVS Caremark expected that a MIR with Amazon-like resources would want to displace CVS Caremark's mail-based services and become the exclusive mail-based provider for Payers. Mr. Lavin led the charge in formulating CVS Caremark's response. Usually Payers agree to make the PBM 232the exclusive mail provider for its members. Mr. Lavin had detailed knowledge about these rates and terms. Fundamentally, Mr. Lavin will be doing the same job at PillPack as he did at CVS. Everything Mr. Lavin learned in his time at CVS-about the Retail Network pharmacies he negotiated against, the clients he was responsive to, and the initiatives that drive CVS's competitive strategy-will inform his work for PillPack. ii. Confidential Information Mr. Lavin knew about CVS Caremark's contract with the pharmacies in their Retail Network, including pricing. He knows rates between CVS Caremark and the pharmacies. These rates are not public, and CVS Caremark is contractually bound to keep them private and spends much time and money to protect the confidentiality of this information. Mr. Lavin has knowledge that will allow him to strike more favorable deals for PillPack with CVS Caremark's competitors. He knows the best and worst terms between PBMs and retailers; he knows what specific concessions CVS Caremark has made; and he knows CVS Caremark's pricing terms with their clients, the Payers. Mr. Lavin interacted with and was privy to Confidential Information about both sides of the PBM business-the Retail Network and the Payers that are the clients of CVS Caremark. He needed to know what Payers wanted to get the best rates and terms in his negotiations with retail pharmacies. Using his deep knowledge of CVS's rates, at PillPack Mr, Lavin could offer PBMs lower rates than other retail pharmacies have agreed to with CVS Caremark in exchange for preferred status as a mail-based pharmacy provider. This harms CVS retail and CVS Caremark, since both currently offer mail-based services. It also harms CVS Caremark because PillPack will be unfairly increasing its market share, which weakens CVS Caremark at the negotiating table with pharmacies and clients. Indeed, PillPack admits that it has started approaching clients directly to supply mail-based services and intends Mr. Lavin to lead its initiatives and strategies in this regard. Mr. Lavin's insider-knowledge about what clients want, how much they are willing to pay, and where CVS Caremark has strengths and weaknesses, positions PillPack to undercut CVS Caremark in its longstanding client relationships.3 Additionally, as a Senior Vice President, Mr. Lavin also took part in executive-level strategy, where CVS-wide Confidential Information was discussed, and plans formed to thwart competitive threats including Amazon's entry into the mail-based pharmacy space. 2. John Lavin's Position-No i. Same or Similar Services Mr. Lavin's job at PillPack implicates a vastly separate set of responsibilities, functions, and priorities. Mr. Lavin's role will involve negotiating only with PBMs other than Caremark. ECF No. 33-3 at 8, ¶ 21. PillPack is not a PBM and does not compete with Caremark. PillPack is an innovative retail pharmacy that, at best, competes with CVS's retail pharmacy business in discrete areas. Thus, Mr. Lavin's new position at PillPack will neither have him providing services in Competition, nor have him work for a Competitor. 233ii. Confidential Information Mr. Lavin worked for CVS Caremark, CVS's PBM business. He never worked for CVS's retail pharmacy business and could not have learned Confidential Information about CVS's retail pharmacy business in his role at CVS Caremark because, as CVS represented to the public and to the Federal Trade Commission, a "comprehensive" firewall exists between CVS's PBM and retail pharmacy businesses. Mr. Lavin never negotiated with PBMs on behalf of CVS's retail pharmacy business and never had any involvement in CVS's retail pharmacy business' multi-dose packaging offering. Mr. Lavin does not have Confidential Information that would be suspectable to disclosure in his new position. 3. Court's Analysis-YES The Court finds that CVS has shown, with substantial proof, that Mr. Lavin violated the Agreement by accepting the position of Director of Third-Party Networks and Contracting and entering an employment contract with the PillPack division of Amazon. The facts prove that under the Agreement, PillPack is a Competitor and that in this new job, Mr. Lavin would be involved in Competition. The services Mr. Lavin would supply at PillPack are substantially the same or similar to the services he supplied at CVS and it is likely that Confidential Information could be disclosed. i. Same or Similar Services At both jobs, Mr. Lavin's primary focus will be to achieve the most favorable terms for his employer in negotiations related to network inclusion. His job at PillPack will be the same-just on the opposite side of the negotiation table, as CVS argues. Because one job is from the PBM level of negotiations, and the other job is from the retail level, is not controlling in this analysis. The various levels in prescription drug commerce-from manufacturer of drugs through distribution to the end user-are integrated and interdependent. Payers (insurance companies, governments) who bear the burden of the costs of prescription medication look for the most efficient, effective, and least costly way of delivering drugs to their clients. They often use PBMs to manage this process and to seek the lowest costs for delivery of the medication. PBMs negotiate with retailers to set up Retail Networks to deliver the medication. It also appears that PillPack, will be looking to negotiate directly with the insurers and others on the Payer level. At CVS Caremark, Mr. Lavin's primary responsibility had been negotiating with retail pharmacies on behalf of CVS Caremark. ECF No. 27-1 at 1, ¶ 3.4 That role has included setting strategy and executing on negotiations with mail-in-retail pharmacies, including PillPack. Id. at 7-8, ¶ 28.5 In that role, he also had insight into 234the pricing and terms clients demanded so that he could negotiate against the pharmacies. Id. ("Mr. Lavin also has detailed knowledge of CVS Caremark's current and future strategy for dealing with mail pharmacies in its retail networks... including how CVS Caremark identifies whether such pharmacies should be deemed mail pharmacies, the terms and conditions under which they are permitted to participate in CVS Caremark's network, the rates that are offered (versus the rates offered to retail pharmacies), and the rates charged to CVS Caremark's clients for CVS Caremark's own mail services.") PillPack has already started contacting CVS Caremark's clients and PillPack's CEO would not deny that PillPack is planning to provide its own PBM-like services directly to clients. ECF No. 42-1 at 6. ("Is PillPack planning to build its own PBM? A. There are no immediate or firm plans to build a PBM, no. Q. Are there less immediate and less firm plans to build a PBM? A. We've explored a number of different things, as you can imagine, but no, there are no immediate plans.") At PillPack, Mr. Lavin's primary responsibility will be negotiating with PBMs (other than CVS Caremark) over the terms for PillPack's participation in their Retail Networks, including the rates PillPack will charge PBMs for prescription fulfillment. However, in addition to negotiating with PBMs, Mr. Lavin will also oversee negotiating and building relationships with the private Payers (such as health plans and employers) and public Payers (Medicare and Medicaid). These are CVS Caremark's clients. ECF No. 27-8 at 37 (PillPack's job description for the role Mr. Lavin will perform states: "This role would lead all contracting, negotiation, and strategy with PBM's ... private payers including employers and insurers, and public payers including Medicare and Medicaid."). Likewise, Mr. Lavin will lead PillPack's drug procurement strategy and relationship and contribute to Amazon-PillPack's "long term disruptive strategy." ECF No. 27-8 at 35. The Court concludes that Mr. Lavin's role at PillPack would be the same or similar to the role he had at CVS Caremark in many relevant respects. ii. Confidential Information Even if the positions were not the same or similar, Mr. Lavin's new position would violate the Agreement because it "will likely result in the disclosure of Confidential Information to a Competitor."6 ECF No. 27-4 at 10, § 2(a). Confidentiality of pricing and relationships is an extremely high priority in this competitive business. "CVS Caremark's contracts with pharmacies typically require CVS Caremark to maintain as confidential the agreed-upon rates and other material terms. CVS Caremark is not permitted to share this information with third parties, including other pharmacies." ECF No. 27-1 at 6, ¶ 22. While there is a firewall between CVS Caremark and CVS Retail on pricing, Mr. Lavin "has negotiated with CVS Pharmacy's retail pharmacy business as one of the pharmacies in CVS Caremark's network. So he knows the rate CVS Pharmacy's retail pharmacy business charges CVS Caremark." Id. at 6, ¶ 24. 235Mr. Lavin also participated in weekly executive underwriting calls to discuss negotiations with CVS Caremark's largest clients and prospective clients, with three or four clients per call generally. Id. at 13-14, ¶40. CVS goes to great efforts to protect CVS Caremark's confidential contract terms with Payers. Id. at 15, ¶ 43. "In fact, the CVS Caremark employees responsible for handling the client accounts on a day-to-day basis in the sales and account management functions are provided less information about client contract terms than Mr. Lavin had been given by virtue of his senior leadership position within the business." Id. Mr. Lavin has also been involved in high-level strategic planning for CVS giving him advanced and complex knowledge of the company's internal strategies for the future. He was "deeply involved in CVS Caremark's strategy for the upcoming selling season, which necessarily includes pricing and other types of very sensitive information to be used for at least the next 12-18 months and, in most cases, up to 36 months." Id. at 6, ¶ 25. The position between Payers and pharmacies means he had "access to significant amounts of confidential information from both sides of the transaction, including pricing, drug acquisition costs and rebate rate." Id. Mr. Lavin took part in the "2019 Enterprise Strategy working group tasked with creating new pharmacy reimbursement models for the upcoming selling season," including "strategies for retail reimbursement rates, including ways in which retail could increase its performance to offset deeper cuts in reimbursement rates." Id. at 7, ¶ 26.7 "As a senior executive, Mr. Lavin attended and participated in several CVS Caremark Executive Committee meetings," focused on its "highest priority initiatives and strategies and attendees are privy to CVS Caremark's most confidential and competitively-sensitive information, including financial information, pricing strategies and other business strategies." ECF No. 27-2 at 2.8 During his employment with CVS, Mr. Lavin obtained "detailed knowledge of CVS Caremark's current and future strategy for dealing with mail pharmacies in its retail networks...including how CVS Caremark identifies whether such pharmacies should be deemed mail pharmacies, the terms and conditions under which they are permitted to participate in CVS Caremark's network, the rates that are offered (versus the rates offered to retail pharmacies), and the rates charged to CVS Caremark's clients for CVS Caremark's own mail services." ECF No. 27-1 at 7-8, ¶ 28. He was also intimately involved in "CVS Caremark's strategy to differentiate its 236mail-based services from potential competitors." Id. at 9, ¶ 33. After reviewing all the evidence, the Court finds that the services Mr. Lavin was to perform at PillPack, a Competitor in the industry, are substantially like the services he provided for CVS Caremark. Moreover, the Court finds that it is highly likely that Mr. Lavin's new employment will result in the disclosure of Confidential Information to CVS's Competitor. B. Is the Agreement Reasonable? It is well settled that covenants not to compete are disfavored and subject to strict judicial scrutiny. Durapin, Inc. v. American Products, Inc. , 559 A.2d 1051, 1053 (R.I. 1989). As a result, Rhode Island courts will uphold and enforce such provisions if, inter alia , the party seeking to enforce the noncompetition clause (the promisee) shows that the provision is ancillary to an otherwise valid transaction or relationship, and that "the contract is reasonable and does not extend beyond what is apparently necessary for the protection of those in whose favor it runs." Id. See Restatement (Second) Contracts § 188 (1981). Cranston Print Works Co. v. Pothier , 848 A.2d 213, 219 (R.I. 2004) ; see also Astro-Med, Inc. v. Nihon Kohden Am., Inc. , 591 F.3d 1, 14 (1st Cir. 2009) (citing Koppers Prods. Co. v. Readio , 60 R.I. 207, 197 A. 441, 444-45 (1938) (stating that "noncompetitive employment contracts are carefully scrutinized by the court and only enforced when reasonable and when the restriction does not extend beyond what is apparently necessary for the protection of those in whose favor they are made")). To enforce a restrictive covenant under Rhode Island law and establish that the Agreement is enforceable, CVS must show that "(1) the provision is ancillary to an otherwise valid transaction or relationship; (2) the provision is supported by adequate consideration; and (3) it has a legitimate interest that the provision is designed to protect." R.J. Carbone Co. v. Regan , 582 F. Supp. 2d 220, 224 (D.R.I. 2008) (citing Durapin, Inc. v. Am. Prods., Inc. , 559 A.2d 1051, 1053 (R.I. 1989) ). Associate Justice of the Rhode Island Superior Court Michael A. Silverstein well set forth the standards courts applying Rhode Island law should use in evaluating these covenants: The "crucial issue" in considering the enforceability of a non-competition agreement is its "reasonableness." Reasonableness of non-competition agreements "turns on: (1) whether the provision is narrowly tailored to protect the legitimate interests; (2) whether it is reasonably limited in activity, geographic area, and time; (3) whether the promisee's interests are not outweighed by the hardship to the promisor; and (4) whether the restriction is likely to injure the public. * * * * In the end, the reasonableness "must be decided on the facts of the case within the framework of these limitations." However, reasonableness is "ultimately a question of law to be determined by the court." Rhode Island courts may modify or "blue-pencil" non-competition agreements to make them reasonable and enforceable. F. Saia Restaurants, LLC v. Pat's Italian Food to Go, Inc. , No. PB 12-1294, 2012 WL 2133511, at 7 (R.I. Super. June 06, 2012) (citations omitted). The Court finds that the Agreement is reasonable. The non-competition provision in the Agreement is tailored to serve CVS's legitimate interest in protecting its Confidential Information and is reasonable 237in duration and scope. The 18-month time limit is also reasonable and is tied to the marketing calendar this competitive industry. ECF No. 27-1 at 3, 6, ¶¶ 13, 25 ("CVS Caremark typically enters short term contracts with pharmacies, usually locking pricing for one or two years before a new contract is negotiated and executed...the upcoming selling season, which necessarily includes pricing and other types of very sensitive information to be used for at least the next 12-18 months and, in most cases, up to 36 months."). The Agreement specifically and narrowly defines both what qualifies as "Competition" and who qualifies as a "Competitor" to protect its legitimate interests. The Agreement only prevents Mr. Lavin from providing services to a defined set of Competitors, including PBMs and retail pharmacies, where such services are "the same or similar in function or purpose" or would likely result in the disclosure or use of Confidential Information.9 ECF No. 27-4 at 10, § 2(a). Mr. Lavin was a high-level, senior executive at CVS who had significant company-wide strategic knowledge. The Agreement was narrowly drawn to address this legitimate concern on the part of CVS.10 C. Has CVS Met the Burden for Issuing a Preliminary Injunction? It is the plaintiffs burden to meet all the elements required before a court issues a preliminary injunction. "In determining whether to grant a preliminary injunction, the district court must consider: (i) the movant's likelihood of success on the merits of its claims; (ii) whether and to what extent the movant will suffer irreparable harm if the injunction is withheld; (iii) the balance of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the withholding of one) may have on the public interest." Corp. Techs., Inc. v. Harnett , 731 F.3d 6, 9 (1st Cir. 2013) (citing Ross-Simons of Warwick, Inc. v. Baccarat, Inc. , 102 F.3d 12, 15 (1st Cir. 1996) ). First, the Court has found above that, on the record before the Court, CVS is likely to succeed in its enforcement of the Agreement. Second, the risk of disclosure of this type of Confidential Information to a Competitor presents a sufficient risk of irreparable harm to justify a preliminary injunction. See Harlan Labs., Inc. v. Campbell , 900 F. Supp. 2d 99, 108 (D. Mass. 2012) ("As a general rule, a breach of non-compete agreements tied to trade secrets concerns triggers a finding of irreparable harm."); see also Saban , 780 F. Supp. 2d at 731 ("Rhode Island courts have enjoined former employees when the employee's knowledge of confidential information is likely to damage the former employer."). Third, the equities weigh in favor of issuing an injunction. Mr. Lavin received over $150,000 in consideration for agreeing to the limited restrictions on future employment. Yet, less than a year after entering into this Agreement, he *238sought alternative employment where CVS Confidential Information will be at risk. Finally, the public has a strong interest in preserving the integrity of contracts and protecting confidential business information from competitors. IV. CONCLUSION The Court does not grant a preliminary injunction to enforce a non-compete clause lightly. It is aware of the narrow and restricted application Courts should give to the agreements under Rhode Island law. However here, months after entering an independent stand-alone Agreement (limited to only 18 months post-employment) for which he was well-compensated, Mr. Lavin, a high senior official at CVS with access to very Confidential Information, went to work for a Competitor. That is wrong, and CVS is entitled to have the Agreement enforced. The Court GRANTS CVS's Motion for a Preliminary Injunction. ECF No. 27. IT IS SO ORDERED. See ECF No. 27 at 26, n.5. PillPack claimed after Mr. Lavin left CVS that it would wall off Mr. Lavin from any negotiations between CVS Caremark and PillPack. ECF No. 27-7 at 45. While true that Mr. Lavin could not access the pricing terms the retail pharmacy obtained from other PBMs (and vice versa), he was not otherwise barred from accessing information about the retail pharmacy business-as shown by the enterprise-wide strategic information to which he had access. "When CVS Caremark sets up a network of pharmacies to be included in a particular Payer's plan, it is driven by the Payer's needs and preferences...Mr. Lavin ... handled the vast majority of negotiations with pharmacies in CVS Caremark's network." ECF No. 27-1 at 4, ¶¶ 16, 18. "Thus, Mr. Lavin has been involved to some degree in almost every negotiation between CVS Caremark and the 70,000 pharmacies in its network for at least the last 10 years." Id. at 5, ¶ 18. PillPack is one of the pharmacies in CVS Caremark's network and a Competitor to both CVS Caremark's mail-based pharmacy business and CVS Pharmacy's retail pharmacy business. ECF No. 27-1 at 5, ¶ 19. Negotiations with retailers is the crux of the CVS Caremark business. It is an extremely competitive business. Id. at 5, ¶ 20. "CVS Caremark, through Mr. Lavin and his team, has to negotiate increasingly better rates with the pharmacies in each contract term to remain competitive." Id. "Negotiations over those rates would be compromised, to CVS Caremark's detriment, if pharmacies in CVS Caremark's network knew the rates CVS Caremark agreed to with other pharmacies in the network, particularly in a one to two year selling cycle." Id. at 5, ¶ 21. PillPack is a Competitor of CVS under the Agreement even though it is considered a retail pharmacy and CVS Caremark is a PBM because the Agreement defines Competitor as one on all levels of the business, both PBM and retail. ECF No. 27-4 at 10, § 2(b). Mr. Lavin received a copy of a comprehensive Enterprise Strategy presentation which "discusses strategy to 'develop joint solutions to better align the incentives of [CVS's] Retail and PBM businesses.' " ECF No. 27-1 at 7. "As a result of Mr. Lavin's 2016 presentation to the Executive Committee, CVS Caremark began strategic initiatives related to mail and retail pharmacies" and subsequently "launched a new program for mail-in retail pharmacies, which was led by Mr. Lavin and his team." ECF No. 27-2 at 5, ¶ 12. Mr. Lavin also had access to confidential and competitively sensitive information related to CVS Caremark's and CVS Pharmacy's costs of goods sold ("COGS"), the prices that each business pays to acquire medications from its wholesalers. Id. at 5, ¶ 13. "One area where information about CVS's COGS will be especially useful to PillPack is in its specialty pharmacy business-a mail-order pharmacy benefit focused on specialty medications that are high in cost or complexity. This is the fastest growing part of the pharmacy benefits industry and one of CVS's leading revenue streams...Mr. Lavin has the exact information PillPack would want to grow this area of its business." ECF No. 27-2 at 6, ¶ 14. Mr. Lavin relies on Saban v. Caremark Rx, L.L.C. , 780 F. Supp. 2d 700 (N.D. Ill. 2011) to show that the Agreement was unreasonable. But Saban involved a different restrictive covenant, in which "Competition" was defined to "mean engaging in any activity for a Competitor." Id. at 711. Mr. Lavin's Agreement is different from the restriction at issue in Saban , and more narrowly tailored. Thus, the "canyon-like coverage" and "deliberate overreaching" at issue in Saban simply are not present here. Moreover, Mr. Lavin's work at CVS was broad-ranging and entailed access to high-level strategy across the organization while Mr. Saban's duties at CVS were narrower in scope. Mr. Lavin's non-compete agreement with Amazon is more restrictive than the Agreement at issue in this case.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/2266030/	238 P.3d 813 (2008) GARRY v. SUNRISE HOSP. & MED. CTR., INC. No. 45888. Supreme Court of Nevada. September 9, 2008. Decision Without Published Opinion Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266068/	681 A.2d 584 (1996) 111 Md. App. 310 Henry F. HARTLOVE, Personal Representative of the Estate of Claude Faye Bass, v. The MARYLAND SCHOOL FOR the BLIND. No. 1706, Sept. Term, 1995. Court of Special Appeals of Maryland. August 30, 1996. 586 Oren D. Saltzman, Ellicott City (Robert C. Prem and Prem & Dumler, on the brief), Baltimore, for Appellant. Michael James Kelley (Douglas G. Worrall, James E. Myers and Smith, Somerville & Case, L.L.C., on the brief), Baltimore, for Appellee. Argued before WILNER, C.J., and CATHELL and HOLLANDER, JJ. 585 HOLLANDER, Judge. Henry F. Hartlove, appellant and crossappellee, is the personal representative of the Estate of Claude Faye Bass. The Maryland School for the Blind ("the School"), appellee and cross-appellant, is the residuary legatee under Ms. Bass's will. The School instituted suit against Hartlove, both in his representative and individual capacities, in the Circuit Court for Baltimore County, alleging, inter alia, that Hartlove had mismanaged Ms. Bass's estate and had misappropriated estate assets. In particular, the School contended that certain bank accounts owned jointly by Hartlove and the decedent, with right of survivorship, were actually property of the estate, and that Hartlove unlawfully converted the funds in these accounts after Ms. Bass's death. The trial judge submitted to the jury the School's claims of breach of fiduciary duty, conversion, and unjust enrichment. The jury found in favor of the School on the breach of fiduciary duty count, but found in favor of Hartlove on the remaining counts. Hartlove now presents two issues for our determination: I. Whether the Jury Instruction on Breach of Fiduciary Duty constituted reversible error since Maryland law does not recognize a separate or independent cause of action for Breach of Fiduciary Duty? II. Whether the trial Court committed reversible error in submitting Count II of the Complaint, Breach of Fiduciary Duty, to the jury as fact finder since it is an equitable claim exclusively within the province of the trial judge? In its cross-appeal, the School presents three issues for our consideration: 587 I. Did the jury instructions constitute reversible error where the judge instructed the jury that they "may wish to consider" rather than "must" consider whether Mrs. Bass made a gift of the bank accounts to Defendant during her lifetime and where the judge instructed the jury that the signature cards alone could be considered sufficient evidence of an intent to make a gift of the bank accounts to Defendant? II. Did the refusal by the trial judge to instruct the jury that they could not rely upon the signature cards alone to establish gifts constitute reversible error? III. Did the refusal by the trial judge to give the jury an instruction as to the definition of "clear and convincing evidence" constitute reversible error? As we perceive no reversible error, we shall affirm. FACTUAL SUMMARY Claude Faye Bass, who was known as Faye, died on November 28, 1992. Pursuant to her will, appellant was appointed personal representative of the estate. On May 25, 1994, the School filed suit against Hartlove and requested a jury trial.[1] The complaint sought multiple forms of relief, including compensatory and punitive damages, injunctions, a constructive trust, an accounting, and Hartlove's removal as personal representative of the estate of Ms. Bass. The School principally disputed appellant's right to the money that remained in four bank accounts at the time of Ms. Bass's death. One account was opened at First Bankers of Indian River County (later called First Union National Bank of Florida), two savings accounts were opened at Loyola Federal Savings and Loan, and the fourth account was at Maryland National Bank. The School claims that the funds in the bank accounts belong to the estate, and that Ms. Bass did not intend for appellant to receive these funds. It asserted in its suit that, The bank accounts were opened for the sole purpose of providing convenience accounts such that [Hartlove] would be in a position to manage the financial affairs of Bass and such that [Hartlove] would be better able to review and pay Bass's bills. Bass's personal funds were placed in those accounts not as a gift to [Hartlove], but for the sake of convenient money management. The School also argued at trial that, to the extent that Ms. Bass did have such an intent, her method constituted an attempt to make a future transfer that would take effect at her death, and thus was an ineffective testamentary distribution without the required formalities of a will. Faye Bass was described as a kind but strong-willed and independent woman, who did not hesitate to let others know how she felt and who would never let anyone dominate her. She had no mental or physical impairments, lived in her own house, and drove a car until the time of her death. Her husband, Johnny Bass, died in 1981. The Basses had no children. The Hartlove family moved next door to the Basses in 1960. The family consisted of Henry W. Hartlove (appellant's father), Sophie Hartlove (appellant's mother), and their children, appellant, Nancy, and Craig. The two families formed a very close friendship and were "like family." Ms. Bass became particularly close with appellant. Indeed, she referred to him as her son. According to appellant's father, Ms. Bass "looked upon my son as her son. She thanked me. She said, Henry, I thank you and Sophie both for, you might say, letting me have a son." The younger Hartlove, who is an accountant, became a trusted advisor to his "second mother," assisting her with her finances and checkbook. The elder Henry Hartlove was both a certified public accountant and an attorney, now retired from his practices. From time to time, Ms. Bass would seek advice from him, including financial advice. He prepared Ms. Bass's tax returns and balanced her checkbook. The elder Hartlove also drafted Ms. 588 Bass's will, which she executed on June 13, 1992. He testified that the will was "based strictly on what Faye Bass told me." Richard and Theresa Krejci, two of Ms. Bass's neighbors, witnessed her execution of the will. They testified that Ms. Bass was competent at the time and understood what she was signing. In her will, Ms. Bass made several bequests to the elder Hartlove's relatives. Item 2(c) of the will provided for a $20,000 special bequest to appellant. Item 3 of the will instructed the personal representative to sell Ms. Bass's Florida condominium and distribute the proceeds equally between George Graffe and appellant as trustee for his minor son, John A. Hartlove, until the son reached the age of twenty-five. Further, the will named the School as the residuary legatee.[2] The School, according to David L. Evans, its chief operating officer, "is an educational institution, known nationwide for the education of the visually impaired and blind." According to Jacqueline Hartlove, Ms. Bass said "that she wanted to leave [the School] a little something, because she had had cataract surgery and she knew the importance of eye sight." After Ms. Bass died, appellant made the arrangements for her funeral. Subsequently, appellant filed a petition for probate with the Register of Wills for Baltimore County to open Ms. Bass's estate. See Maryland Code (1974, 1991 Repl.Vol.) §§ 5-201, 5-206 of the Estates and Trusts Article ("E.T."). At the time of Ms. Bass's death, the funds in the four joint bank accounts that are in issue totalled approximately $176,000. After Ms. Bass died, appellant withdrew all of the money from the accounts and closed them. He deposited the money from the Loyola Federal accounts, which contained approximately $91,000, into the estate checking account that he opened. He characterized this action as a "temporary loan" to the estate. Subsequently, appellant removed the money from the estate account. Under E.T. § 7-104(a) and Maryland Rule 6-301(c), appellant was required to file with the Register of Wills, within twenty days after the date of his appointment as personal representative, a "List of Interested Persons," containing the names and addresses of all of Ms. Bass's heirs and all legatees named in the will.[3] Although the School was named as the residuary legatee in Ms. Bass's will, appellant did not include the School on the list. The form instructions provide, in part: "Interested persons include decedent's heirs (surviving spouse, children, and other persons who would inherit if there were no will) and, if decedent dies with a will, the personal representative named in the will and all legatees (persons who inherit under the will)." Md. Rule 6-316 (emphasis supplied). Appellant testified that he did not include the School on the list because he did not believe that the School was a "person." Paul Ventura, the Chief Deputy Register of Wills for Baltimore County, testified that his office has several "safety nets" to make sure that all interested persons are properly listed and notified of estate proceedings. He conceded, however, that in this case the safety nets "failed." Accordingly, the School was not notified of the opening of the estate or Hartlove's subsequent filing of the estate's administration accounts.[4] On December 9, 1992, appellant filed with the Register of Wills the first of two information reports for the estate.[5] The report listed 589 the Maryland National account, but not the Loyola Federal or First Union accounts. On February 19, 1993, Hartlove filed a supplemental information report that listed the First Union account and both Loyola Federal accounts. Hartlove testified that he could not recall why he omitted the three accounts from the initial report, and acknowledged that it was "wrong" to omit them and that they "should have all been included." He dismissed as "absurd," however, the School's charge on cross-examination that he failed to list them because he thought "that [he] could get away with taking the Maryland National Bank account...." He asserted "that [he] had a question in [his] mind about the Loyola account and the other account." The School did not learn of its status as residuary legatee until 1994. On January 12, 1994, after the orphans' court approved appellant's final administration account, appellant mailed to the School an unsigned check for approximately $44,000, which Evans received. At that point in time, Evans had never heard of Ms. Bass and he subsequently learned that the School had not received any notification or other information about the estate previously. Evans contacted Hartlove and asked for a signed check, a copy of Bass's will, and an "accounting" to show how the School's distribution was calculated. A few days later, according to Evans, he received only a signed check in the mail. On several occasions, Evans attempted to contact Hartlove in order to see the will and obtain the accounting. When Evans did not receive a response, he travelled to the office of the Register of Wills and examined the file on Ms. Bass's estate. That is when he learned of the four joint bank accounts. Thereafter, he consulted with Michael Kelly, one of the School's attorneys and a member of its board of directors. After an investigation, the School concluded that the bank accounts should have been part of the estate and that the School's residuary distribution was too small. At trial, Stanley E. Crosin, a certified public accountant whom the School called as an expert, testified that he examined the records for each of the bank accounts and concluded that the accounts "appeared to be operated for the benefit of Mrs. Bass." He stated: All of the checks appeared to be the normal recurring type of living expenses that one would expect to find flowing through an individual's checking accounts with the exception of transfers that were made periodically from one account to another account, for example, from a Maryland National account to the First Union account or from the Loyola account to the Maryland National account. The defense introduced signature cards for the First Union account and both Loyola Federal Accounts. They were signed by Ms. Bass and appellant, and provided that the accounts were held in a joint tenancy with the right of survivorship, and that either account holder could withdraw funds. One of the Loyola signature cards stated that there was a "CONCLUSIVE PRESUMPTION OF CREATING A JOINT TENANCY & TO VEST TITLE TO FUNDS IN SURVIVOR." (Capitalization in original.) The other Loyola signature card stated, in part: "It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively presumed to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account." (Italics in original.) No signature card for the Maryland National account was introduced into evidence.[6] The elder Hartlove testified[7] that the names of the elder Hartlove and the Basses 590 were originally on the four accounts but, when the elder Hartlove retired, his name was dropped and appellant's name was added. He said that he had explained to Ms. Bass the concept of a joint account when she commented that she wanted to leave money for one of her nieces. Hartlove said that he advised her: "Faye, if you want to leave anything, you have an account. You have an account with her, in which you could continue to be able to draw from it and so on, but if she hadn't taken it out at the time of your death, it would be her money." The elder Hartlove testified that he did not regard himself an owner of the money in the accounts, however. He also stated that he did not recall withdrawing any money from the accounts.[8] He further testified that his son paid "some" of Ms. Bass's bills, although he was not sure about the point. Appellant adduced testimony to establish that Ms. Bass viewed the money as belonging to appellant and Ms. Bass. The following testimony occurred during Jacqueline Hartlove's direct examination: [HARTLOVE'S COUNSEL]: What did she say to you? MS. HARTLOVE: She told me, she said that, you know, she had bank accounts and that he was on all her bank accounts, and if there was everif we ever needed any money, all we had to do was write a check. [HARTLOVE'S COUNSEL]: All right. Did she discuss the money in the bank accounts with you as to whether it was your money or her money? MS. HARTLOVE: She always referred to her bank accounts as her money, my husband's and mine. On Ms. Hartlove's redirect examination, the following exchange took place: [HARTLOVE'S COUNSEL]: What did she say about her money, Mrs. Bass' money, and your husband's money? What did she say? MS. HARTLOVE: It was our money, my husband's and mine. [HARTLOVE'S COUNSEL]: Okay. But she didn't tell you that she was distributing it to you; did she? MS. HARTLOVE: No. Ms. Hartlove also stated that, when the Hartloves and Ms. Bass would go out to dinner, they would argue over who should pay the check, and Ms. Bass would say, "I don't know why we do this, because that money is your money, and I am paying for dinner with your money." John Hartlove, appellant's son, testified that he heard Ms. Bass say to appellant that "whenever you want money, take it, it's yours, it's your money." According to appellant, "[Ms. Bass] referred to it as my money, my money meaning my wife's and myself, because she said it around my wife many times." He conceded that the checks drawn on the Loyola and First Union accounts were used to pay Ms. Bass's "day-to-day expenses" while she was alive. Nevertheless, he denied the School's charge that he placed the Loyola Federal money in the estate bank account because he believed that it belonged to the estate. Richard Krejci, who was called as a witness by appellant, testified that Ms. Bass mentioned that appellant's name was on certain bank accounts, and "[t]hat's about all she said, other than the fact that she needed someone on there to manage her affairs when she was in Florida,[9] to pay some of the bills and that sort of thing, and that is pretty much the extent of it." The following exchange occurred during the direct examination of Theresa Krejci: [HARTLOVE'S COUNSEL]: Did [Ms. Bass] describe [appellant] as her financial advisor? MS. KREJCI: Not in those exact terms, but she sought his advice a lot of times. She told me on many occasions that he had one of her checking accounts and 591 would handle paying bills and stuff for her, and she did discuss that with me. (Emphasis supplied.) At the close of the School's case, the circuit court granted appellant's motion for judgment with respect to breach of fiduciary duty by appellant individually, breach of contract, negligence, fraud, negligent misrepresentation, undue influence, and professional malpractice. Later, during exceptions to the jury instructions, the School objected to the submission of the breach of fiduciary duty count to the jury, contending that it was an equitable claim that had to be decided by the court. Appellant made no such objection, however. The remaining countsbreach of fiduciary duty by appellant in his capacity as personal representative, two conversion counts, and unjust enrichmentwere ultimately submitted to the jury. The jury returned a verdict in favor of the School only on the breach of fiduciary duty claim; it awarded $25,000 in damages. After the trial, the judge stated that, had he "been sitting as the trier of fact alone," as a court of equity, he would have found no breach of fiduciary duty. The judge then decided not to order an accounting, because he did not believe that one was "appropriate." DISCUSSION Hartlove's Appeal I. Appellant contends that, because there is no independent cause of action for breach of fiduciary duty, the trial court erred in instructing the jury on that claim. The court instructed the jury, in pertinent part, as follows: A fiduciary relationship exists when one party is under a duty to act for or give advice for the benefit of another. The fiduciary duty requires a party with such responsibility to act solely in the interest of the beneficiary, without any self-interest or self-dealing. Fiduciary [sic], who commits a breach of his duty, is guilty of tortious conduct and the wronged party, the party is entitled to damages for harm caused by the breach. Where either a confidential relationship or fiduciary duty exists, the burden of production of evidence falls upon the party in whom responsibility has been imposed to establish that his conduct was proper under the circumstances. Thus, as to the allegation by the Plaintiff of breach of fiduciary duty, it is the burden of the Defendant to produce evidence showing or tending to show that, in all material respects, he acted with fairness and candor toward Mrs. Bass and her estate. If you are satisfied from all of the evidence that he did so act, then you should find that he did not breach his fiduciary duty. The judge also advised the jury that a confidential relationship existed between Hartlove and Ms. Bass. After the judge charged the jury, appellant said: I would respectfully except to three issues. The first one is the instruction with respect to a cause of action in breach of fiduciary duty. I don't believe there is such a cause of action, and that goes along with the exception to the verdict sheet, asking if there is a breach of fiduciary duty, asking them to find that there is a breach of fiduciary duty. (Emphasis supplied). Appellant emphasizes that he does not contend that a fiduciary may never be accountable for misdeeds. Rather, he contends that the specific claim against the fiduciary must be based on a "recognized" cause of action, such as fraud. A. We first consider the School's contention that appellant waived the argument that there is no cause of action for breach of fiduciary duty, because he failed to make a motion for judgment on this basis at the close of the evidence. The School asserts that Hartlove's motion for judgment notwithstanding the verdict, in which he did argue that there is no cause of action for breach of fiduciary duty, did not preserve the issue, because Hartlove had not moved for judgment on that ground. See Md. Rule 2-532(a) ("In a jury trial, a party may move for judgment notwithstanding the verdict only if 592 that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion."). The School also argues that Hartlove is attempting to "make an end run" around the rule by couching his contention as a challenge to a jury instruction. The School states: "Defendant cannot rectify his failure to make a motion for judgment on that ground and attempt to bootstrap himself by arguing that a jury instruction, the substance of which he does not even contend was incorrect, is allegedly reversible error." (Emphasis the School's.) The School relies heavily on our decision in Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland, 104 Md.App. 1, 655 A.2d 1 (1995), aff'd in part and rev'd in part, 342 Md. 363, 676 A.2d 65 (1996). In Fearnow, we determined that the trial court had not erred in declining to give the following instruction: I have ruled that [the defendant] is responsible for the injuries and damages to [the plaintiff] in this case so you need not concern yourself with that question. You need only decide the amount of damages that should be awarded. Id., 104 Md.App. at 23, 655 A.2d 1. We said that the proposed instruction was improper[10] and, "for the sake of thoroughness", we noted that the requested instruction was also an impermissible "attempt to have the trial court grant a motion for judgment without employing the necessary procedural mechanism for making such a motion." Id., at 27, 655 A.2d 1. We stated: "Appellant ... ignored the mandate of our Rules and blazed his own brave, new procedural trail, attempting to have judgment granted by way of jury instruction, rather than by the appropriate motion to the trial court." Id., 104 Md.App. at 27-28, 655 A.2d 1. Our decision was in line with the general principle that "a litigant may not use an instruction as a vehicle for adding a cause of action, objecting to or striking out allegedly improper evidence, or as an avenue for directing a verdict." Zeller v. Greater Baltimore Medical Center, 67 Md. App. 75, 90, 506 A.2d 646 (1986). Hartlove's conduct, however, is distinguishable from the conduct found improper in Fearnow. The instruction in Fearnow sought to have the judge determine, as a matter of law, that the defendants were liable to the plaintiffs, and to instruct the jury to that effect. Thus, the request was tantamount to a motion for judgment based on the sufficiency of the evidence. See Bartholomee v. Casey, 103 Md.App. 34, 51, 651 A.2d 908 (1994), cert. denied, 338 Md. 557, 659 A.2d 1293 (1995). We even referred to the instruction as a "verdict directing instruction." Hartlove's objection to the instruction, however, did not constitute an attempt to have the trial judge direct a verdict in favor of Hartlove based on the sufficiency of the evidence. In our view, appellant timely objected to the jury instruction, based on the contention that Maryland does not recognize the tort of breach of fiduciary duty. His objection complied with Maryland Rule 2-520(e), which requires a party to state "distinctly the [instruction] to which the party objects and the grounds of the objection." Therefore, the issue is preserved. B. We turn next to the merits of the issue. As both parties correctly note, the Court of Appeals has not yet decided whether a cause of action exists for breach of fiduciary duty. Instead, the Court of Appeals has assumed, without deciding, the viability of such a cause of action. In Adams v. Coates, 331 Md. 1, 626 A.2d 36 (1993), involving a dispute between partners, the Court stated: Breach of fiduciary duty, as a tort, has been alleged by pleaders whose cases have come to this Court, and our opinions have used the term to describe claims asserted, but we have not opined on the existence of the tort or torts, or on its or their elements or rules of damages.... We need not so opine in this case. Id., 331 Md. at 11-12, 626 A.2d 36. More recently, in Alleco Inc. v. The Harry & Jeanette 593 Weinberg Foundation, Inc., 340 Md. 176, 191-92, 665 A.2d 1038 (1995), the Court similarly assumed, "solely for purposes of discussion in th[e] case, that Maryland law does recognize the tort of breach of fiduciary duty." The issue is, however, squarely before us.[11] In analyzing this issue, we must consider the concept of fiduciary duty and the role of personal representative. The authorities are rife with language describing the duties of fiduciaries and that a personal representative is, indeed, a fiduciary. E.T. § 7-101(a) provides: A personal representative is a fiduciary. He is under a general duty to settle and distribute the estate of the decedent in accordance with the terms of the will and the estates of decedents law as expeditiously and with as little sacrifice of value as is reasonable under the circumstances. He shall use the authority conferred upon him by the estates of decedents law, by the terms of the will, by orders in proceedings to which he is a party, and by the equitable principles generally applicable to fiduciaries, fairly considering the interests of all interested persons and creditors. A personal representative must "meet the specific requirements of a fiduciary as that term is applied to personal representatives; and she must act reasonably and in good faith." Hon. Albert W. Northrop & Robert A. Schmuhl, DECEDENTS' ESTATES IN MARYLAND § 6-4(e) at 243 (1994). The personal representative's "office is in the nature of a trustee for the creditors, legatees and nextof-kin of the deceased, and he is required to preserve the property of the estate apart from his own, earmarked." Wheatley v. Fleischmann, 216 Md. 157, 162-63, 140 A.2d 152 (1958). In Bastian v. Laffin, 54 Md.App. 703, 708, 460 A.2d 623 (1983), we described the general duty of a personal representative: [The personal representative] has an obligation to protect and preserve the property entrusted to him.... In carrying out that obligation, he is required to act in good faith, and must perform his fiduciary duties with the same degree of care and diligence that would be exercised by a prudent person under similar circumstances in the management of his own affairs. Similarly, Allan J. Gibber, in his book GIBBER ON ESTATE ADMINISTRATION (3rd ed. 1991), describes the following duties of a personal representative: The standard of care required of a fiduciary includes: 1. The exercise of the care, skill and diligence of a reasonably prudent person dealing with his or her own property; 2. The exercise of good faith and loyalty to all the beneficiaries; 3. The lack of self-dealing; 4. The exercise of reasonable watchfulness over investments; and 5. The maintenance of full, accurate and precise records. Id. at 3-1. Given the standard of conduct imposed upon fiduciaries, we are of the view that fiduciaries who breach their duty should be held accountable under an independent cause of action aimed at such conduct.[12] This view is consistent with § 874 of the RESTATEMENT (SECOND) OF TORTS (1979), which states specifically: "One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation." Furthermore, our research has revealed that several other jurisdictions have recognized 594 the tort of breach of fiduciary duty. See Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692, 696-97 (1996); Davis v. Church of Jesus Christ of Latter Day Saints, 258 Mont. 286, 852 P.2d 640, 649 (1993); Loehrke v. Wanta Builders, Inc., 151 Wis.2d 695, 445 N.W.2d 717, 720 (App.1989); Destefano v. Grabrian, 763 P.2d 275, 284 (Colo.1988); Mandelblatt v. Devon Stores, Inc., 132 A.D.2d 162, 521 N.Y.S.2d 672, 676 (N.Y.App. Div.1987); Widett & Widett v. Snyder, 392 Mass. 778, 467 N.E.2d 1312, 1316-17 (1984). See also Gray v. Ward, Case No. WD 50264, 929 S.W.2d 774, 782 (1996) (claim for breach of fiduciary duty is distinct from claim for "clergy malpractice"); Amerco v. Shoen, 184 Ariz. 150, 907 P.2d 536, 540-42 (App.1995) (jury may not award nominal damages for breach of duty by corporate fiduciary; compensatory damages and restitution constitute an "adequate range" of relief); InterFirst Bank Dallas, N.A. v. Risser, 739 S.W.2d 882, 907 (Tex.Ct.App.1987) ("an intentional breach of a fiduciary duty is a tort justifying the award of punitive damages"); Harman v. Masoneilan Int'l, Inc., 442 A.2d 487, 492-96 (Del.1982) (complaint stated a cause of action in equity for breach of fiduciary duty of majority shareholder to minority shareholder); id. at 500 ("the relief available in equity for tortious conduct by one standing in a fiduciary relation with another is necessarily broad and flexible" [citing § 874 of the RESTATEMENT]); King Mountain Condominium Association v. Gundlach, 425 So.2d 569, 571 (Fla.Dist.Ct.App.1982); Middlesex Insurance Co. v. Mann, 124 Cal.App.3d 558, 177 Cal.Rptr. 495 (1981) (evidence created jury question as to director's breach of fiduciary duty to corporation). Contra Kinzer v. City of Chicago, 128 Ill.2d 437, 132 Ill.Dec. 410, 414, 539 N.E.2d 1216, 1220 (1989) (Illinois does not recognize the Restatement view, but instead regards breach of fiduciary duty as controlled by the substantive laws of agency,' contract, and equity). We recognize, of course, that we are not bound by the Restatement or the decisions of courts elsewhere. But appellant has not advanced any sound reasons to reject this position. To the contrary, adoption of appellant's view would result in a form-oversubstance rule requiring victims of breaches of fiduciary duty to find "recognized" causes of action in which to fit their claims.[13] For the foregoing reasons, we hold that breach of fiduciary duty is an independent and viable cause of action in Maryland.[14] II. Appellant contends that, even if there exists a cause of action for breach of fiduciary 595 duty, the circuit court erred in submitting this claim to the jury, because it is an "equitable" claim, exclusively within the province of the court. We need not address the merits of this contention, however, because we agree with the School that appellant has failed to preserve this argument. Appellant asserts that the issue is properly preserved, because it "was raised several times at the trial court level and was the subject of at least one conversation between counsel and the trial judge in chambers." Appellant concedes, however, that it was only the School that asserted this objection.[15] The earliest point at which appellant presented the issue was after trial, in his motion for judgment notwithstanding the verdict. Recently, in Hosain v. Malik, 108 Md.App. 284, 671 A.2d 988 (1996) (en banc), a child custody case, we interpreted Rule 8-131(a) in connection with the trial court's decision to proceed with a hearing in the absence of the child's court-appointed counsel. Appellant's counsel did not object when the court decided to go forward with the hearing. Later, at the conclusion of the hearing, appellant's counsel requested that child's counsel be permitted to make a statement on behalf of the child at closing arguments, which were to be held at a later date. Id. We held that the issue of proceeding in the absence of the child's counsel was not preserved, because appellant had not timely objected to proceeding with the hearing. The majority stated: The primary purpose of [Rule 8-131(a) ] is to ensure fairness to all parties in the case and to promote the orderly administration of law. State v. Bell, 334 Md. 178, 189, 638 A.2d 107 (1994). This concern for fairness is furthered by requiring counsel to bring her client's position on the matter at issue to the attention of the circuit court so that the circuit court may pass upon and perhaps correct any potential errors in the proceedings. Hosain, 108 Md.App. at 296, 671 A.2d 988. Because appellant's counsel had not "[brought] her client's position ... to the attention of the circuit court," we concluded, in essence, that she was estopped from pursuing the matter on appeal: [A]ppellant's counsel's silence and her failure to object at the time it would have been natural to do so, is naturally and reasonably construed as counsel's waiver of any objection to the absence of the child's attorney. See Fireman's Fund Ins. Co. v. Bragg, 76 Md.App. 709, 719, 548 A.2d 151 (1988) ("When a party has the option of objecting, his failure to do so is regarded as a waiver estopping him from obtaining review of that point on appeal.") * * * * * Accordingly, after remaining silent and failing to object to the circuit court's procedure, appellant's counsel cannot now complain that the remand hearing improperly proceeded without the child's attorney. As a consequence of appellant's counsel remaining silent in this regard, neither the circuit court nor appellee had any way of knowing of appellant's disagreement to going forward with the remand hearing. Indeed, the only way to construe appellant's counsel's failure to speak up is as an agreement to the manner in which the hearing proceeding. To review this issue now, would be patently unfair to the circuit court and to appellee. Hosain, 108 Md.App. at 298, 671 A.2d 988. Hosain`s "estoppel" concept applies here. Appellant's objection to the jury instruction on the ground that there is no recognized cause of action in this State for breach of fiduciary duty did not provide the trial judge with fair notice of appellant's contention that the claim, if it exists at all, is equitable in nature and thus not a matter for the jury to resolve. Cf. Bowman v. State, 337 Md. 65, 650 A.2d 954 (1994) (objection to trial court's failure to give particular jury instruction was not preserved, when counsel merely stated to 596 the court that the instruction as given "wasn't exactly what [he] had in mind" and he failed to specify the instruction that he desired). If Hartlove had argued to the trial court that the claim for breach of fiduciary duty, if it existed, was an equitable matter for the court, the trial judge may well have accepted the unanimous view of both parties and opted not to submit the claim to the jury. Having acquiesced, in effect, to the submission of the claim, appellant cannot now adopt his opponent's argument because it suits his purposes. Finally, Hartlove contends that, even if he did not properly preserve the issue in the trial court, the issue is nevertheless properly before us, because it is a "jurisdictional" matter which may be raised for the first time on appeal. See Kaouris v. Kaouris, 324 Md. 687, 710, 598 A.2d 1193 (1991). He states that his "question presented ... is whether it was within the jurisdiction of the jury to render a verdict on the breach of fiduciary duty claim, or whether it was within the exclusive province of the trial judge to do so." "Jurisdiction" has been defined fundamentally as the power of a court to decide a case. See BLACK'S LAW DICTIONARY 853 (6th ed. 1990); Stewart v. State, 21 Md.App. 346, 348, 319 A.2d 621 (1974), aff'd, 275 Md. 258, 340 A.2d 290 (1975). Maryland cases have stated, however, that jurisdiction actually refers to two distinct concepts: (1) the power of a court to render a valid final judgment; and (2) the propriety of granting the relief sought. Dorsey v. State, 295 Md. 217, 226-27, 454 A.2d 353 (1983); First Federated Commodity Trust Corp. v. Commissioner of Securities, 272 Md. 329, 334, 322 A.2d 539 (1974). But for purposes of the rule that the issue of subject matter jurisdiction may be raised for the first time on appeal, the Court of Appeals has stated that it is only the first of these conceptsthe "power" of the court to act, or jurisdiction "in its most fundamental sense"that may be raised in the first instance in the appellate court. Kaouris v. Kaouris, supra, 324 Md. at 715, 710, 598 A.2d 1193. In Mattingly v. Mattingly, 92 Md.App. 248, 607 A.2d 575 (1992), we declined to resolve whether the improper submission of an equitable claim to the jury constitutes a "jurisdictional" defect. We concluded there that the trial court had erroneously submitted the equitable claim to the jury, and that the error was not harmless because it deprived the plaintiff of the benefit of the more lenient equitable burden of proof standard on a critical issue. Id., 92 Md.App. at 262-63, 607 A.2d 575. Nevertheless, we clearly expressed our doubt that a jury's consideration of an equitable matter constitutes a "jurisdictional" defect. It may well be that a jury is without power or jurisdiction to decide this purely equitable action. As noted above, prior to the merger of law and equity in Maryland, a law court had no jurisdiction over an action for rescission, Creamer v. Helferstay, [294 Md. 107, 116, 448 A.2d 332 (1982) ], or one for accounting between partners involving the status of partnership affairs. McSherry v. Brooks, [46 Md. 103, 115 (1877) ]; Morgart v. Smouse, [103 Md. 463, 468-69, 63 A. 1070 (1906) ]. We have held that the "merger" of law and equity "was not intended to abolish all differences between legal and equitable claims and defenses to them, but only to abolish `[p]leading distinctions between law and equity' and `to assure that [a]ll claims and defenses are determined in one court.'" Southern Four v. Parker, 81 Md. App. 85, 92 [566 A.2d 808] (1989) (quoting Smith v. Gehring, 64 Md.App. 359, 370-72 [496 A.2d 317] (1985)). Thus, relief and defenses that are exclusively within the jurisdiction of equity remain so, despite the merger of the separate forms of pleading and the separate courts. See, e.g., Southern Four v. Parker, supra, 81 Md.App. at 91 [566 A.2d 808] (conditional civil judgment void in case at law for money damages for breach of contract); Smith v. Gehring, supra, 64 Md.App. at 370-72 [496 A.2d 317] (equitable doctrine of laches unavailable as a defense to purely legal claim). Moreover, Maryland Rule 2-511(d) expressly provides that "Issues of fact not triable of right by a jury shall be decided by the court and may not be submitted 597 to the jury for an advisory verdict" (emphasis added). The Court of Appeals, however, has shown great reluctance to order reversal because a trial court's law/equity choice was erroneous. Instead, it has generally, after acknowledging the law/equity error, simply resolved the case on the merits. See, e.g., Mayor of Landover v. Brandt, 199 Md. 105, 107-08 [85 A.2d 449] (1952); Burns v. Bines, 189 Md. 157, 164 [55 A.2d 487] (1947). We have found only three cases in which, after holding the law/equity choice erroneous, the Court of Appeals has reversed and remanded the case; and in all three cases the law/equity error was accompanied by another ground for reversal. See Creamer v. Helferstay, 294 Md. 107, 116-133 [448 A.2d 332] (1982); Millison v. Citizens Nat'l Bank, 256 Md. 431, 439 [260 A.2d 324] (1970); Senick v. Lucas, 234 Md. 373, 381 [199 A.2d 375] (1964). Moreover, none of these cases are postmerger cases and none involve wholly equitable claims improperly heard by a jury. Accordingly, we might well be reluctant to find reversal and remand required here solely on jurisdictional grounds. But see Creamer v. Helferstay, 294 Md. at 116 [448 A.2d 332] ("the order appealed from is being vacated on the procedural ground that a law court has no power to affirmatively order the rescission of a contract") (emphasis added); id. at 133 [448 A.2d 332] (Murphy, C.J., concurring) ("The trial judge sitting ... in an action at law, possessed no equity powers and was therefore without jurisdiction to rescind the contract. I would go no further in disposing of the appeal") (emphasis added). Mattingly, 92 Md.App. at 261-62, 607 A.2d 575 (boldface added; italics in original). As the Mattingly opinion noted, however, the case law on the issue is somewhat unsettled. Several cases have held that a contention may not be raised for the first time on appeal that a matter tried in an equity proceeding should have been tried in a court of law. See Charles County Broadcasting Co. v. Meares, 270 Md. 321, 328-29, 311 A.2d 27 (1973); Punte v. Taylor, 189 Md. 102, 111-12, 53 A.2d 773 (1947); Stuart v. Johnson, 181 Md. 145, 147, 28 A.2d 837 (1942); Gough v. Manning, 26 Md. 347, 361 (1867); Teackle v. Gibson, 8 Md. 70, 84 (1855). With the exception of Charles County Broadcasting and Stuart, however, each of these cases cited a statute, repealed in 1957, that specifically provided that the question of equity jurisdiction could not be raised for the first time on appeal. See Code 1951, art. 5, § 41 ("No defendant to a suit in equity in which an appeal may be taken shall make any objections to the jurisdiction of the court below, unless it shall appear by the record that such objection was made in said court."). In Moore v. McAllister, 216 Md. 497, 509, 141 A.2d 176 (1958), the Court stated: "Maryland has adopted the theory that equity jurisdiction does not relate to the power of the chancellor." (Emphasis in original.) In a similar vein, it has also been held that a claim may not be raised for the first time on appeal that a jury decided a matter that was within the exclusive "province" of the trial judge. Thus, a party cannot object for the first time on appeal that the trial court erroneously submitted a question of law to the jury, see Cushwa v. Williamsport, 117 Md. 306, 314, 83 A. 389 (1912), or that a jury was improperly permitted to construe a contract, see Baltimore Luggage Co. v. Ligon, 208 Md. 406, 413, 118 A.2d 665 (1955). The case most supportive of Hartlove's position is Creamer v. Helferstay, 294 Md. 107, 448 A.2d 332 (1982), cited by this Court in Mattingly. There, the plaintiffs filed an action in the Superior Court for Baltimore City for rescission of a contract. At that time, the Maryland Constitution provided that the Superior Court for Baltimore City was vested only with the power to adjudicate actions at law, while the Circuit Court for Baltimore City had the exclusive authority to hear and determine suits in equity. Creamer, 294 Md. at 113, 448 A.2d 332. The Court of Appeals vacated an order of rescission issued by the Superior Court. It reasoned that, because "the authority of a court to rescind or cancel a contract is purely equitable," the Superior Court "was clearly without the power to order rescission." Id., 294 Md. at 114, 448 A.2d 332. 598 Creamer involved two separate courts, each of which had different, constitutionally enumerated powers. The plaintiffs' action in Creamer was clearly filed in the wrong court. As we recognized in Mattingly, Creamer did not involve a circuit court after the merger of law and equity, and it did not involve an equitable claim improperly submitted to a jury. After consideration of the relevant authorities, we conclude that, even if the issue is equitable in nature, the submission of the claim to the jury does not amount to a "jurisdictional" defect, so as to allow Hartlove to raise the issue for the first time on appeal. Hartlove does not challenge the power of the court, i.e., the Circuit Court for Baltimore County, to render a final decree. Instead, his challenge relates to the proper division of labor between two actors within the court: the trial judge and the jury. As such, the claim does not constitute an issue of subject matter jurisdiction. Therefore, appellant has waived the argument that the School's breach of fiduciary duty claim constitutes an equitable matter that should not have been submitted to the jury. The School's Cross-Appeal The School challenges the trial court's jury instructions. "A party is entitled to have his or her theory of the case presented to the jury, provided that the theory is legally and factually supported." Shapiro v. Massengill, 105 Md.App. 743, 761, 661 A.2d 202, cert. denied, 341 Md. 28, 668 A.2d 36 (1995). Thus, the trial court must give a party's requested jury instruction if the instruction (1) is a correct exposition of the law; (2) that law is applicable in light of the evidence before the jury; and (3) the substance of the requested instruction is not fairly covered by the instructions actually given. Wegad v. Howard Street Jewelers, 326 Md. 409, 414, 605 A.2d 123 (1992); Mallard v. Earl, 106 Md.App. 449, 469, 665 A.2d 287 (1995); Simmons v. Urquhart, 106 Md. App. 77, 91, 664 A.2d 27 (1995), cert. denied, 341 Md. 174, 669 A.2d 1361 (1996); Md. Rule 2-520(c). When reviewing the propriety of the court's denial of a requested instruction, we must determine whether the requested instruction satisfied each of those three criteria. Holman v. Kelly Catering, Inc., 334 Md. 480, 495-96, 639 A.2d 701 (1994); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 420-21, 633 A.2d 485 (1993). When reviewing the propriety of the giving of a particular instruction, we must determine whether the instruction "fairly and accurately set forth the law applicable to the case" and was "supported by testimony or evidence presented during the case." Odenton Development Co. v. Lamy, 320 Md. 33, 43, 575 A.2d 1235 (1990). I. The School's first challenge involves the following portion of the court's instruction on conversion: A conversion takes place when a person, who rightfully obtains possession of personal property of another's [sic], uses or disposes of the property in an unauthorized manner or when a person, without authority or permission, intentionally deprives another of possession of personal property. Here, the Plaintiff claims that the Defendant converted the funds in the bank accounts at Maryland National Bank, Loyola Federal Savings Bank and First Union Bank of Florida, depriving the estate of Claude Faye Bass and ultimately the Plaintiff of those funds. In order to find for the Plaintiff on the theory of conversion, you must find that the Plaintiff has proved [sic] by a preponderance of the evidence that the Defendant deprived Mrs. Bass or her estate of personal property belonging to her or it, intentionally and deliberately, without authority or permission of Mrs. Bass, that Mrs. Bass or her estate had actual possession or right to the possession of such property, and finally, that the Defendant failed, refused, or neglected to return the property. If you find that possession by the Defendant of the property was initially lawful, for example, if you find that it was the subject of a gift from Mrs. Bass, then in addition to the other elements, you must 599 also find that the lawful possession was thereafter revoked and that the Defendant was notified that the right to possession on his part was withdrawn. You may wish to consider whether or not Mrs. Bass made a gift of funds to the Defendant. For a gift to be valid, the donor must intend to transfer the property, must actually deliver the gift, and the donee must accept delivery. The burden is on the person receiving a purported gift to establish every element of the gift by clear and convincing evidence. (Emphasis supplied.) The School timely objected to the portion of the instruction that we have highlighted and requested that the court instruct the jury that it "must" consider whether Ms. Bass made a gift of the funds to Hartlove. Its counsel stated to the trial judge: "The grounds for this exception are that the gift issue is the essence of the case. By saying you may wish to consider, what if they don't consider it? Where does that leave this case?" The court declined to change the instruction, however. The School argues that the jury instruction's permissive "may wish to consider" language was misleading and constitutes reversible error, because "the only real dispute" in this case "was whether Mrs. Bass had made gifts to Defendant of the Bank Accounts during her lifetime or whether the Bank Accounts were instead either convenience accounts or gifts causa mortis." It adds that the "only" way in which appellant would be entitled to the bank accounts would be if Bass had made gifts of the accounts to him during her life and that, therefore, the permissive "may wish to consider" language "could easily have left the jury with the mistaken view that, even if gifts were not made by Mrs. Bass during her lifetime, Defendant would still be entitled to funds in the Bank Accounts at the time of her death." In support of its view, the School relies on Whalen v. Milholland, 89 Md. 199, 43 A. 45 (1899) (Milholland I), a seminal decision in Maryland on the disposition of multiple party bank accounts. There, the Court considered a savings account titled as "Elizabeth O'Neill and Mary Whalen. Joint owners. Payable to the order of either or the survivor." See id., 89 Md. at 200, 43 A. 45. Elizabeth O'Neill had opened and exclusively funded the account, and she kept possession of the account "passbook," which was needed to withdraw money from the account, during her lifetime. After O'Neill died, both Whalen and the executor of O'Neill's estate claimed the money. The Court stated that, in order to prevail, Whalen needed to prove that she was the recipient of a valid gift from her sister. Id., 89 Md. at 201, 43 A. 45. It specifically added that the words "joint owners" on the titling document did not establish a gift, because O'Neill had retained dominion and control over the money by virtue of her power of withdrawal. Id., 89 Md. at 202-03, 43 A. 45. After reviewing the facts, the Court held that Whalen had failed to prove a valid and effective gift, and that the money therefore belonged to the estate. Id., 89 Md. at 210-11, 43 A. 45. As at least three of the joint accounts here were unambiguously titled as a "joint tenancy with the right of survivorship" and lacked "trust" language, the School argues that the accounts in issue were "Milholland I accounts." Therefore, it claims that Hartlove was required to prove that he was the recipient of a gift in order to be entitled to the funds. The School further contends that the companion case of Milholland v. Whalen, 89 Md. 212, 43 A. 43 (1899) (Milholland II), does not apply here. In Milholland II, the Court held that Mary Whalen was entitled to the funds remaining in a different savings account that she had owned with O'Neill. The passbook of that account contained an entry that stated: "Metropolitan Savings Bank, in account with Miss Elizabeth O'Neill. In trust for herself and Mrs. Mary Whalen, widow, joint owners, subject to the order of either; the balance at the death of either to belong to the survivor." Id., 89 Md. at 213, 43 A. 43 (emphasis supplied). The Court concluded that Ms. Whalen, rather than the estate, was entitled to the money as the beneficiary of the trust, without the necessity of showing a gift. Id., 89 Md. at 218, 43 A. 600 43.[16] "[A]bsent proof of fraud, abuse of a confidential relationship, or other evidence tending to rebut the presumption that a valid trust exists, the beneficiary of such a trust becomes the sole owner of the account upon the death of the other account holder." Cooper v. Bikle, 334 Md. 608, 625-26, 640 A.2d 1120 (1994). We disagree with the School. First, it is not at all clear that Milholland I governs joint bank accounts of the type involved here. Court of Appeals decisions decided subsequent to Milholland I and Milholland II have substantially "blended" the distinction between the types of accounts discussed in those cases, and suggest that the surviving owner of a joint account may have survivorship rights upon the death of the depositor, even in the absence of "trust" language on the titling document. See Arbaugh v. Hook, 254 Md. 146, 148, 150-51, 254 A.2d 187 (1969) (checking account titled as A and B, "joint owners, subject to the order of either, the balance at the death of either, to belong to the survivor" held to be a trust account and to create a rebuttable presumption of survivorship); Kuhl v. Reese, 220 Md. 459, 460, 154 A.2d 712 (1959) (account titled as A and B, "joint owners, subject to the order of either, the balance at death of either to belong to the survivor" viewed as a sufficient "declaration of trust"). Cf. Blair v. Haas, 215 Md. 105, 115, 137 A.2d 145 (1957) (entry on signature card creates rebuttable presumption of trust if entry is "in substantially the trust form"). Other cases, however, have, in some measure, maintained the distinction between the types of accounts. See Shaffer v. Lohr, 264 Md. 397, 287 A.2d 42 (1972) (account titled as "A or B, either or the survivor," held not to be in the trust form); Barker v. Aiello, 84 Md.App. 629, 634, 581 A.2d 462 (1990), cert. denied, 322 Md. 130, 586 A.2d 13 (1991) ("Maryland distinguishes between joint bank accounts and joint trust accounts."). Recently, in Cooper v. Bikle, supra, 334 Md. 608, 640 A.2d 1120, which the parties did not cite, the Court of Appeals suggested that accounts owned in a "joint tenancy with the right of survivorship" are not governed by the Milholland I/Milholland II line of cases, at least in the context of conversion claims like the one at issue here. Cooper indicates that, when one of the joint owners of the account dies, the funds simply pass to the survivor under the elementary principle of property law that property owned in a joint tenancy with the right of survivorship automatically passes to the surviving owner or owners upon the death of one of the joint tenants. Cooper involved a suit by the personal representatives of the estate of Helen Bikle against Josef Bikle. The plaintiffs alleged that Josef and his late brother, Austin, had fraudulently converted more than $70,000 from a bank account that Austin and Helen Bikle had owned as "joint tenants with the right of survivorship." Austin, who was Helen's husband, predeceased her.[17] 601 The circuit court dismissed the case, ruling that the plaintiffs had failed to join the estate of Austin Bikle as a necessary party. The Court of Appeals reversed. Among the issues that it addressed was whether "disposition of the action [would] impair or impede [the estate's] ability to protect a claimed interest relating to the subject of the action." See Md. Rule 2-211(a)(2). There was some confusion from the parties' submissions as to whether Helen and Austin's joint account had been held in a "joint tenancy with the right of survivorship" or was instead a joint trust account of the Milholland II variety. See Cooper, 334 Md. at 624-25, 640 A.2d 1120. The Court thus analyzed the issue from both perspectives. The Court determined that, if the account were held in a joint tenancy, then Austin's estate had no interest that could be impaired by disposition of the action because, as a joint tenant, his interest in the account was extinguished upon his death. The funds at issue in this case were allegedly deposited into a bank account held by Austin and Josef Bikle as joint tenants with a right of survivorship. Preliminarily, we must recognize the rudimentary property law principle that if property is held by joint tenants and one of the tenants dies, that individual's interest in the property is immediately extinguished. The surviving joint tenant becomes the sole owner of the property pursuant to the right of survivorship and without the necessity of probate. * * * * * * In the instant case, therefore, since Helen Bikle possessed a right of survivorship in the original joint accounts and her husband predeceased her, she would have become the sole owner of the funds had they not been allegedly converted. Consequently, the funds in those original joint accounts would have become a part of Helen Bikle's estate upon her death. As a result, Helen Bikle's estate possesses the sole interest in any recovery of funds fraudulently converted from those accounts and deposited into the joint account of Austin and Josef Bikle. On the other hand, the Estate of Austin H. Bikle retains no interest in the funds because any interest Austin Bikle possessed during his life would have been extinguished upon his death. Id., 334 Md. at 621, 623-24, 640 A.2d 1120 (emphasis supplied). The Court's analysis shows that the surviving joint tenant's right to the funds is automatic and immediate; it never suggested that there needed to be a "tracing" of who had deposited what funds in the account and an analysis of whether a perfected gift had taken place. To the contrary, the Court stated that a deceased joint tenant's interest in a bank is "extinguished" upon his death. Next, the Court determined that Austin Bikle's estate also would have no interest in the contested funds if the accounts were titled in the trust form. Id., 334 Md. at 625-26, 640 A.2d 1120. It then concluded: Alternatively, even if the accounts were not held in trust, but simply jointly owned by Helen and Austin Bikle, then Austin Bikle's estate never possessed any interest in the account due to Helen Bikle's acknowledged right of survivorship. Under either the trust theory or the joint tenancy theory, Austin Bikle's interest in the accounts was extinguished upon his death, and disposition of this case will have no effect upon the property rights of his estate. Id., 334 Md. at 626, 640 A.2d 1120 (emphasis supplied). The Court thus viewed joint tenancy theory and trust theory as separate and independent means by which Austin's interest in the joint accounts would pass to Helen upon his death. The law of gifts played no role in the discussion. The import of Cooper is clear. It is undisputed that the bank accounts here were owned in a joint tenancy with the right of survivorship. Thus, under what the Cooper Court called a "rudimentary property law principle," upon Ms. Bass's death, the funds in the accounts passed to Hartlove as the surviving joint tenant. Based on Cooper, the School is incorrect in its assertion that the only way in which appellant could prevail on the conversion and unjust enrichment counts would be if the accounts were in "trust form" 602 or if Ms. Bass made a "gift" of the accounts.[18] Therefore, the circuit court did not err in declining to instruct the jury that it "must" consider whether Ms. Bass had made a gift of the funds in the bank accounts to appellant. We acknowledge that, notwithstanding the signature card for a joint account, a decedent's estate may prove that a joint tenancy was not intended to be created, as in the case of a "convenience" account. See Haller v. White, 228 Md. 505, 510, 180 A.2d 689 (1962). This is the rule followed by other jurisdictions. See, e.g., Franklin v. Anna National Bank of Anna, 140 Ill.App.3d 533, 94 Ill.Dec. 870, 488 N.E.2d 1117 (1986). But, under the authorities that we have discussed, appellant was not required to establish a gift in order to prevail on the conversion and unjust enrichment claims. In any event, even if we believed that Milholland I controlled this case, we would hold that the three simple words "may wish to" in a much larger jury instruction do not rise to the level of reversible error. The "trial judge is permitted wide discretion as to the form of jury instructions." Blaw-Knox Construction Equipment Co. v. Morris, 88 Md.App. 655, 666-67, 596 A.2d 679 (1991). "The purpose of oral charges is to tell the jury in simple words what the law is in the case before them, and we will not be too particular in criticizing the words used if the result be sufficient." Hartman v. Meadows, 243 Md. 158, 163, 220 A.2d 555 (1966); West v. Belle Isle Cab Co., 203 Md. 244, 250-51, 100 A.2d 17 (1953). Thus, if the instructions constitute a clear and accurate expression of the applicable law, "we will not reverse merely because of a failure in form." Shapiro v. Massengill, supra, 105 Md.App. at 761, 661 A.2d 202. See also Wilhelm v. State Traffic Safety Commission, 230 Md. 91, 102, 185 A.2d 715 (1962). In this case, the likelihood that the jury was confused or misled by the use of "may" instead of "must" was slim. The jury was advised of the elements of a gift and the law on conversion. The jury thus knew of the presence of these issues in the case. In addition, if, as the School contended to the trial judge, the gift issue really were "the essence of the case," nothing prevented the School from arguing the issue to the jury. As the Court of Appeals stated in Dover Elevator Co. v. Swann, 334 Md. 231, 258-59, 638 A.2d 762 (1994): "A number of Maryland cases ... assert the proposition that specifically requested jury instructions are unnecessary where the instructions given adequately encompass the field of law and a party's counsel has room to argue applicable law in light of the facts of the case." Given these factors, the trial court's use of "may wish to" rather than "must" does not warrant a new trial. See Montauk Corp. v. Seeds, 215 Md. 491, 498-500, 138 A.2d 907 (1958) (although "frustration of purpose" instruction was "inaptly phrased" and perhaps not as complete as was desirable, Court could not determine whether the jury was so misled or confused as to render it reversible error). II. The School's next challenge to the jury instructions contains two parts. One part alleges what the School calls an "error of commission," and the second part alleges what it calls an "error of omission." Both contentions are related, and we shall consider each one in turn. The claimed "error of commission" refers to the following instruction: 603 In the case of a gift of a bank account, the gift must be such that the donee has the ability to withdraw all of the funds from the account at any time, whether it is by way of pass book or by language within the titling document which permits either party, donor or donee, to withdraw funds at any time. (Emphasis supplied.) The School asserts that the instruction improperly told the jury that it could find a gift by virtue of the language in the signature cards alone. The record reveals, however, that the School never objected to the instruction. Accordingly, any challenge to it is waived. See Md. Rules 2-520(e); 8-131(a). Instead, the only pertinent objection that the School made involved its claimed error of omissionthat the court failed to add an additional instruction to tell the jury affirmatively that it could not find a gift from the language of the signature cards alone. The School's counsel stated to the court: [T]he next exception is that the Court did not ... instruct to the effect that they cannot rely on the signature cards alone for purposes of determining a gift or determining title but must have independent evidence. The reason for this is, with regard to Maryland National Bank, there are no title cards or signature cards, and with the other two, they do not discuss in the trust languageby using this language, there is a presumption of gift, but without the trust language, which does not occur anywhere, it's an affirmative obligation to prove that the gift occurred, and you cannot rely on the signature cards alone. The short answer to this challenge lies in our discussion in part I. Contrary to what the School's counsel asserted to the trial judge, the "joint tenancy with the right of survivorship" language in the signature cards did provide a means for the jury to "determin[e] title" to the bank accounts. Moreover, the School's requested jury instruction was not warranted by the evidence. As we noted earlier, one of the Loyola signature cards stated, in part: "It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively presumed to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account." (Italics in original.) Perhaps the School could have gone beyond the four corners of the signature card to show, by extrinsic evidence, that Bass lacked either the intent to make a gift or to deliver the gift by intending to transfer a present, irrevocable interest in the deposited funds with respect to Hartlove's one-half "pro rata interest in the account." See In re Schneider's Estate, 6 Ill.2d 180, 127 N.E.2d 445, 449 (1955) (in dispute between surviving joint tenant of bank account and decedent's estate, form of deposit agreement "is not conclusive as to the intention of the depositors between themselves."). But the School's proposed instruction, that would have completely foreclosed use of the signature cards to establish a gift, was not warranted in light of the evidence. We conclude that the School's requested instruction was fairly covered by the instructions actually given. The court correctly instructed the jury on the elements of a gift. This instruction was broad enough to allow the School to argue to the jury that the language of the signature cards was insufficient to show a gift. See Dover Elevator Co. v. Swann, 334 Md. at 258-59, 638 A.2d 762. In light of the instructions to the jury as a whole, the School's specific instruction was not needed. III. Finally, the School contends that the trial court erred in failing to instruct the jury on the definition of "clear and convincing evidence," as that is the standard by which the donee of an alleged gift must prove the gift. See Dorsey v. Dorsey, 302 Md. 312, 318, 487 A.2d 1181 (1985). The School cites the following exchange during the objections to the jury instructions: [THE SCHOOL'S COUNSEL]: The next thing is, you properly noted that the burden is on the person receiving the purported gift to establish every element of the gift by clear and convincing evidence. 604 However, you did not define for the jury that clear and convincing evidence is a greater burden than preponderance of the evidence, and I would request that the Court go on and explain the difference. I really think this case stands or falls on the gift issue, and so I would request that the Court give an instruction on what clear and convincing evidence is. THE COURT: Do you have one handy, Mr. Worrall [the School's counsel]? [THE SCHOOL'S COUNSEL]: I was going to say, I'm not sure any of us knows what clear and convincing is. THE COURT: That's precisely the point. [THE SCHOOL'S COUNSEL]: But the point I would make is it's something more than a preponderance of the evidence and something less than beyond a reasonable doubt. THE COURT: I suspect you can argue that within the context of the instructions. (Emphasis supplied.) The School asserts that the court erred in failing to instruct the jury that "clear and convincing evidence" means "something more than a preponderance of the evidence and something less than beyond a reasonable doubt." It argues that "clear and convincing evidence" is a "nebulous phrase" that the jury probably could not understand. It also asserts that, because the court did instruct the jury on the definition of "preponderance of the evidence," "the jury may have thought that `clear and convincing evidence' was merely the same as `preponderance of the evidence' or may have even thought that `clear and convincing evidence' was a degree of proof lower than `preponderance of the evidence.'" Because of our doubt that this case "stands or falls on the gift issue," see part I, supra, the issue involving the School's requested instruction is of much less import. In addition, even if the definition of "clear and convincing evidence" that the School offered was technically correct, see Vogel v. State, 315 Md. 458, 470, 554 A.2d 1231 (1989); Berkey v. Delia, 287 Md. 302, 319-20, 413 A.2d 170 (1980), and the court should have told the jury that "clear and convincing evidence" was a higher standard of proof than "preponderance of the evidence," it would not have offered the jury anything more meaningful than what it already had. The reason is that the definition would have introduced a new undefined term, "beyond a reasonable doubt." A party cannot expect a judge to define one legal term of art by reference to a different, undefined legal term of art. This is particularly true in a case such as this, when the School's counsel told the trial judge that he was not sure of what "clear and convincing evidence" meant. In Simco Sales Service of Maryland, Inc. v. Schweigman, 237 Md. 180, 187, 205 A.2d 245 (1964), the Court held that a trial court's failure to define the term "proximate cause," even if erroneous, was harmless error, as the court had carefully instructed the jury on the "Boulevard Rule," and had made it clear that a violation of that rule by the unfavored driver needed to be the proximate cause of the accident. The same principle applies here. "Generally, the giving of an erroneous instruction to the jury, not injurious or prejudicial to the party complaining, is harmless and not a ground for reversal. It must appear not only that the instruction was erroneous, but that the complaining party was prejudiced thereby." 2 Maryland Law Encyclopedia Appeals § 484 at 397 (1960). We conclude that any error by the trial court, assuming that one occurred, was harmless. See Montauk Corp. v. Seeds, supra, 215 Md. at 498-500, 138 A.2d 907; Singleton v. Roman, 195 Md. 241, 248-49, 72 A.2d 705 (1950) (refusal to give instruction that was applicable to the issues and not covered by other instructions is a ground for reversal "if the error in refusing the instruction was material and prejudiced the complaining party"); Beghtol v. Michael, 80 Md. App. 387, 403-04, 564 A.2d 82 (1989), cert. denied, 318 Md. 514, 569 A.2d 643 (1990) (failure to instruct jury to disregard feelings of prejudice or sympathy was harmless error because it did not prejudice the verdict, as evidenced by the jury's refusal to award punitive damages). JUDGMENTS AFFIRMED. 605 COSTS TO BE EQUALLY DIVIDED BETWEEN THE PARTIES. CATHELL, J., dissents. CATHELL, Judge, dissenting. I respectfully disagree with and dissent to the majority's creation of a new tortious cause of action for breach of fiduciary duty. The Court of Appeals has had, on two recent occasions, Adams and Alleco, opportunities in which it could have recognized breach of fiduciary duty as a distinct cause of action, had it so chosen. Both times, it declined. When a higher court with opportunity to do so, though not rejecting it outright, nevertheless declines to adopt such a new cause of action, I believe it is generally unwise for this Court to do so. It is one thing to lead from below when the Court above has had no opportunity to lead. It is another thing to lead from below when the Court above has chosen not to. The majority reasons that because the Court of Appeals did not reject the tort "we should not do so either." The majority fails to distinguish that in Alleco and Adams the Court of Appeals maintained the status quo; the majority in the case sub judice changes it. Such changes, in my view, are, as we said in our Alleco, infra, for "the Legislature ... or the Court of Appeals." Unlike the situation in which a breach of fiduciary duty is an element of a fraud or deceit or similar cause of action, when constituted as a separate, independent cause of action, the entire burden of production will, under traditional breach of fiduciary duty standards, almost immediately shift to the defendant in most instances. See Hale v. Hale, 74 Md.App. 555, 567, 539 A.2d 247, cert. denied, 313 Md. 30, 542 A.2d 857 (1988). As the trial judge below instructed, if a fiduciary duty exists a defendant must produce evidence that he has not breached it. He must establish non-breach by clear and convincing evidence. "Once ... shown, a presumption arises ... that the transaction complained of resulted from fraud.... This presumption shifts the burden to the defendant to show the fairness and reasonableness of the transaction. The defendant's evidence must be clear ... and convincing to overcome the presumption." Wimmer v. Wimmer, 287 Md. 663, 669, 414 A.2d 1254 (1980) (citations omitted). In a traditional fraud or deceit case, while a defendant may be required to produce evidence of proper conduct in the performance of his duty, the overall burden to produce evidence of fraud or deceit ultimately rests upon the plaintiff, i.e., she or he must establish fraud or deceit by clear and convincing evidence. The majority is silent on the ultimate burden of proof in the instant case. Who has it? What is it?[1] The Court of Appeals in Adams (an action for an accounting between partners) is quoted by the majority in the case sub judice as saying, "[B]ut we [the Court of Appeals] have not opined on the existence of the tort or torts, or on its or their elements or rules of damages.... We need not so opine in this case."[2] Yet, the majority in the case sub judice, unlike the Court of Appeals in Adams creates the tort and, thus, should address those matters. The majority, however, fails to make any mention of the elements, burden of production, burden of proof, or on any rule of damages. In effect, the majority says, "It's here," but leaves to the trial courts the problems of figuring out what "it" is. Furthermore, the majority, by adopting such a cause of action as an independent tort, 606 may well open a broad range of applicability. While the majority writes only in this case, it nevertheless opens the door to a separate cause of action for every factual situation in which a fiduciary, i.e., confidential, relationship exists. This is not a small concern. Confidential relationships are generally included in the compass of fiduciary relationships. These relationships exist between client and attorney (as in Alleco), principal and agent, principal and surety, sometimes in landlord-tenant relationships, parent and child, guardian and ward, ancestor and heir, husband and wife, trustee and cestui que trust, personal representatives and creditors, legatees, and distributees, appointor and appointee under powers, accountants or other financial managers and their clients and partners (as in Adams) and part ownersevery case in which there is a confidence reposed by one in another and in which the dominion and influence resulting from that confidence is exercised by one person over the other. See Black's Law Dictionary 298 (6th ed.1990). Black's defines "Fiduciary relation" as follows: Fiduciary or confidential relation. A very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another.... [T]he relation can be ... domestic.... Id. at 626; see also 37 Am.Jur.2d Fraud and Deceit § 16 (1968). In respect to marital situations, it is often argued and established that a particular marriage relationship is a confidential relationship. See, e.g., Hale v. Hale, 74 Md.App. at 564, 539 A.2d 247; Jorgensen v. Jorgensen, 32 Cal.2d 13, 193 P.2d 728 (1948). It is not unusual for a husband (or wife) who brings property into a marriage to create tenancy by the entireties in it or to convey it outright to the other spouse. Upon a divorce, or even before or after, that husband (or wife), because of the majority's opinion, can now file a separate cause of action for breach of fiduciary duty, ask for a jury trial, establish the marriage, and thus the confidential relationship, and the burden of production would then shift to the wife (or husband) to prove that she (or he) did not abuse the confidential relationship. Thus, wives (or husbands) receiving property as gifts from the other spouse during marriage, after the termination of the divorce and marital property proceedings, could still be required to produce evidence that they did not take advantage of the other. They will be forever defending. See, e.g., Jorgensen, 193 P.2d at 733 ("The concealment of community property assets by the husband from the wife in connection with such [a property settlement] agreement is therefore a breach of fiduciary duty[3] of the husband that deprives the wife of an opportunity to protect her rights in the concealed assets and thus warrants equitable relief from a judgment approving such agreement."); In re Marriage of Modnick, 33 Cal.3d 897, 191 Cal.Rptr. 629, 633, 663 P.2d 187, 191 (1983) (following Jorgensen and finding that the fiduciary relationship between spouses does not terminate with their separation; rather, it continues until the marriage has been dissolved and the property divided). I perceive that the creation of this tort as a separate cause of action might occasion an interesting interaction with the Marital Property Act. If one spouse makes a gift of property (other than realty as tenants by the entirety) to the other spouse, the property so given is not marital property. No adjustments would be made as to it under the Marital Property Act during the divorce. After the divorce, however, the donor spouse could institute an action based on this new tort and use the former marriage itself to prove the existence of the confidential relationship at the time of the gift. The recipient would then have the burden of production to establish to a jury that he or she did not abuse the marital relationship in obtaining the giftthe car, the business, the fur, the diamond, the stock, etc. 607 The majority states that to require persons to fit a claim for breach of fiduciary duty into recognized causes of action would result in a "form over substance rule." The plaintiff's complaint in the case sub judice is extensive. It contains in its 62 pages, 12 separate counts (including the one at issue). It contains 84 separate allegation paragraphs and 168 separate claims for damages or other relief (6 allegation paragraphs and 14 claim paragraphs were contained in the count at issue). When a litigant cannot fit the alleged wrong into such an extensive pleading, to say that "form over substance" results goes far beyond my understanding of the phrase. In essence, what the trial court did, and the majority here does, is to give to appellee a victory it could not win under theretofore extant causes of action. The majority notes that because the appellee lost on all of the eleven other counts the fact that the breach of fiduciary count "was the only claim on which it prevailed" somehow rebuts the proposition that "adequate remedies already exist." In my view that is a pure sophism. Under that view the majority could create new causes of action for every plaintiff that loses under traditional causes of actionad infinitum. I would suggest that our adversarial system contemplates that on occasion litigants lose. The function of an appellate court, in my view, should not, considering the nature of our adversarial system, include creating a new cause of action in order to help one side in a legal dispute that is unable to establish that it is otherwise entitled to an existing remedy. As I perceive our role, it does not extend to creating remedies when fully adequate remedies already exist. The trial court, and the majority, have tried appellee's case better than did appellee. In the long history of the utilization of breaches of fiduciary duty within other causes of action, no such "form over substance" rule has resulted. Instead, it is first created by the majority in this case, and then utilized by it to justify, in part, the creation of a new cause of action. Moreover, there is no indication anywhere in the Maryland cases, of which I am aware, that litigants have had any difficulty whatsoever in having their breach of fiduciary concerns fully addressed within the applicable traditional causes of action. I perceive that breach of fiduciary duty is particularly unsuited to be an independent tortious cause of action. Including such breaches as relevant elements in the broader scope of fraud and deceit actions or in actions for accountings, etc., has, over time, sufficed. In the instant case, the traditional causes of action, such as fraud, conversion, and unjust enrichment, etc., were pled. The breach of fiduciary duty that served as the foundation for the count that went to the jury was also included in one or more, if not all, of those other counts. What the majority does is to reward the plaintiffs below, who failed to prevail in the traditional causes of action, by recognizing this new tort that was alleged in a separate count. No particular difficulty has been espoused (in the instant case or any other that I am aware of) in having a breach of fiduciary duty as a constituent part of these traditional torts. In other words, the current practice is not broken; it works and does not need to be fixed by this Court, gratuitously. Moreover, the instant case involved only one alleged course of conduct involving the breach or breaches of fiduciary relationships. There were, in addition to the breach of fiduciary duty counts (Counts I, II), counts for actual Fraud (Counts VII, VIII), Conversion (Counts III, IV), Negligent Misrepresentation (Count IX), Unjust Enrichment (Count X), Undue Influence (Count XI), Professional Malpractice (Count XII), Breach of Contract (Count V), and Negligence (Count VI). In Count VII, a specific assertion was made that the defendant "concealed his breaches of his fiduciary duties." In Count XI, a specific assertion was alleged that the defendant committed "breaches of confidential and fiduciary duties." More important, all of the counts incorporated allegations of breaches of fiduciary or confidential relationships. The trial court granted judgment for the defendant at the close of the plaintiff's case on Counts I, V, VI, VII, VIII, IX, XI, and XII, all of which alleged a breach of fiduciary duty to varying extents. As to the question *608 of whether a breach had in fact occurred, the court stated: "The question of whether or not, as a matter of law or as a matter of equity, a confidential relationship exists or a fiduciary relationship exists, I suppose should await the conclusion of all of the testimony." In other words, the court found that the plaintiff had put forward some evidence that a fiduciary relationship existed and that perhaps a relationship had been breached, and yet the court, at that point, incongruously, dismissed many of the causes of action in which a breach of fiduciary duty can be a determinative element. Under the shifting burden of production, if the court found that the plaintiff had put forward sufficient evidence to make out a prima facie case of the existence of a fiduciary duty, then the court should have shifted the burden to the defendant to show that he did not abuse his relationship with the deceased by exerting, for example, undue influence. A fiduciary relationship existed or it did not. A duty was breached, or it was not. The court was wrong either when it directed judgments for the defendant[4] or when it thereafter submitted the same issue to the jury. The result is even more incongruous when it is noted that the jury found for the defendant on the other issues except as to the new independent cause of action then being created (whether he had breached his fiduciary duty in his capacity of personal representative). In other words, the court and the jury found no conversions, no breach of contract, no negligence, no fraud, no negligent misrepresentation, no unjust enrichment, no undue influence, and no professional malpractice, all of which had been alleged and all of which alleged a breach of fiduciary duty. Thus, although the alleged breach of fiduciary duty was not sufficiently proven to support the general or specific allegations of a breach of fiduciary duty as alleged in the other counts, it becomes, by reason of the majority's decision, a new general wrong for which the majority fashions a remedy. Even if a relationship does not exist or a breach does not constitute a fraud, a misrepresentation, undue influence, a conversion, or a misrepresentation, and even if you are not unjustly enriched by it, you can be sued for it and have damages assessed against you. The majority creates a cornucopian supply of fuel for future litigationin my view, needlessly. Interestingly, in our Alleco, Inc. v. Harry & Jeanette Weinberg Found., Inc., 99 Md. App. 696, 639 A.2d 173 (1994), aff'd 340 Md. 176, 665 A.2d 1038 (1995), we declined to recognize a separate tort of aiding and abetting someone else in the commission of a tort. In that opinion, we stated what I believe to be the correct position for us to take in the instant case: "If that [aiding and abetting another tort] is to be recognized as a new, independent tort, either the Legislature by statute or the Court of Appeals by extending the common law will have to do it. We shall not do it." Id. at 701, 639 A.2d 173. That philosophy, which appeared to me to be so admirable in our Alleco opinion, is conspicuously absent in the change in appellate posture the majority makes in the case at bar. Moreover, in Alleco, we, drawing, in my opinion, upon far more pertinent authority than the majority does here, recognized the tort of civil conspiracy. Reviewing that portion of this Court's position, the Court of Appeals specifically held that our recognition of an independent tort of civil conspiracy was wrong. "The statement by the Court of Special Appeals, that civil conspiracy is recognized in Maryland as an independent tort, is simply incorrect." Alleco, 340 Md. at 189, 665 A.2d 1038. As to this issue, I would reverse and hold that no such independent cause of action for breach of fiduciary duty exists, or ought to exist, in Maryland. Finally, I do not necessarily agree with portions of the majority's characterization of our opinion in Hosain v. Malik, 108 Md.App. 284, 671 A.2d 988 (1996), and its applicability to the issues here present. However, as any such disagreement would have no bearing on any of the issues raised, I do not expound further. NOTES [1] The School also initiated proceedings against appellant in the orphans' court, which are not at issue in this appeal. [2] The will was exactly like a will that Ms. Bass had executed in 1986, with the exception that the earlier will had named Children's Hospital, not the School, as the residuary legatee. [3] The purpose of the list is to allow the Register to send a written notice of the opening of the estate to all interested persons. See E.T. § 2-210; Md. Rule 6-317. [4] An "administration account" is list of estate assets, income, expenses, and distributions that the personal representative must file with the Register of Wills. See E.T. §§ 7-301 to 7-305. The personal representative is required to send a written notice to all interested persons of the filing of an administration account. E.T. § 7-501(a). Appellant did not do so. [5] An "information report" is a list of assets in which the decedent had an interest as a joint tenant, assets that the decedent transferred for less than full and adequate consideration within two years prior to death or in contemplation of death, and assets that pass to a beneficiary upon the decedent's death without the need for probate. See Maryland Code (1988), § 7-224 of the Tax-General Article ("T.G."); Rule 6-404. The personal representative must file the information report with the Register of Wills within ninety days after receiving his or her letters of administration. T.G. § 7-224(a). [6] The Maryland National Bank account was funded with money from a trust established in the will of the decedent's husband, Johnny Bass, who predeceased Ms. Bass; the statements for that account were sent to appellant's address. [7] The elder Hartlove was called by the School as an adverse witness. He also testified for the defense. [8] Mr. Hartlove testified: "However, in spite of the fact that I was on there, I don't know whether I ever did anything with the accounts. I don't think I did. To the best of my recollection, I didn't even draw a check, but my name was on those accounts, yes." [9] According to Jacqueline Hartlove's testimony, Ms. Bass would stay in Florida each year from the first week in January until one week after Easter. [10] The Court of Appeals did not address this particular holding. [11] The dissent argues that the failure of the Court in Adams and Alleco to resolve the question of the viability of the cause of action means that this Court should not do so. In those cases, however, it was not necessary for the Court to decide the issue. Moreover, while the Court did not recognize the cause of action, neither did it reject it. Based on the dissent's reasoning, we could argue that, because the Court in Adams and Alleco had opportunities to reject the cause of action and did not do so, we should not do so either. [12] Contrary to the dissent's suggestion, this Court has previously recognized "new" causes of action. See, e.g., Jones v. Harris, 35 Md.App. 556, 371 A.2d 1104 (1977) (recognizing the tort of intentional infliction of emotional distress), aff'd, Harris v. Jones, 281 Md. 560, 564-66, 380 A.2d 611 (1977). [13] The dissent argues that there is no need to recognize a cause of action for breach of fiduciary duty, because "fully adequate remedies already exist" for such conduct. The Court of Appeals, however, rejected a similar argument in Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 479 A.2d 921 (1984), in which it held that a private cause of action exists for violations of Articles 24 and 26 of the Maryland Declaration of Rights. The defendants in that case argued that the cause of action should not be recognized because the plaintiff had other available remedies under non-constitutional tort law and 42 U.S.C. § 1983. The Court disagreed, saying: It is a well-settled rule ... that where a particular set of facts gives rise to alternative causes of action, they may be brought together in one declaration, and where several remedies are requested, an election is not required prior to final judgment.... [T]he existence of other available remedies, or a lack thereof, is not a persuasive basis for resolution of the issue before us. Id., 300 Md. at 535, 479 A.2d 921. Moreover, the dissent's argument is rebutted by the facts of this very case. The School's breach of fiduciary duty claim was the only claim on which it prevailed at trial. Thus, without an independent cause of action for breach of fiduciary duty, it is arguable that the School would not have recovered. [14] As the Court of Appeals stated in Alleco, the elements of breach of fiduciary duty are: "(1) the existence of a fiduciary relationship, (2) a breach of duty owed by the fiduciary to the beneficiary, and (3) harm resulting from the breach." Id., 340 at 192, 665 A.2d 1038. Because Hartlove does not challenge the trial court's instruction on the burden of proof with respect to breach of fiduciary duty, we decline to address the subject of burdens of proof and production. In addition, we emphasize that our decision does not necessarily mean that monetary "damages" may be imposed on fiduciaries for breaches of duty. Based on our conclusion, infra, that appellant has not preserved his claim concerning the equitable nature of the tort, we decline to resolve the question of whether relief for its breach is exclusively equitable, or may instead be both legal and equitable. [15] The School made its objection after the trial judge finished instructing the jury. The trial judge, while denying the School's motion for judgment, referred to a chambers conference in which the issue was raised: "I am aware, of course, from our discussion as well in chambers, that the Plaintiff would like to have the Court rule collaterally on the issues of fiduciary duty and unjust enrichment, since they are somewhat quasi-equitable forms of action, rather than actions at law." (Emphasis supplied.) [16] In 1992, the General Assembly enacted the Multiple Party Accounts Statute, codified at § 1-204 of the Financial Institutions Article and § 1-401 of the Estates and Trusts Article, which changed substantially the law on the disposition of multiple party bank accounts. The Act specifically provided that it was "intended to alter the common law, including Whalen v. Milholland, 89 Md. 199, 43 A. 45 (1899), and Milholland v. Whalen, 89 Md. 212, 43 A. 43 (1899), and their progeny." 1992 Md. Laws, ch. 578, § 2. Section 1-204(d)(1) of the Financial Institutions Article now provides that, upon the death of a party to a multiple party account, "the right to any funds in the account shall be determined in accordance with the express terms of the account agreement." Section 1-204(d)(2) of the Financial Institutions Article provides that, if there is no account agreement or the agreement does not provide a mode of distribution in the event of the death of one of the parties, then the funds in the account "shall belong to the surviving party or parties." The new law, therefore, "releases courts from the gift and trust tests for determining where funds should go." DECEDENTS' ESTATES IN MARYLAND, supra, § 7-20(e) at 336. The Act does not apply to the case before us, however. Mrs. Bass died in 1992, and it applies only (1) to accounts created on or after October 1, 1993, or (2) accounts created before October 1, 1993 if (a) the parties expressly agree or (b) the depository institution sends a proper notice to the account holders and the account holders acquiesce in the change. Maryland Code, § 1-204(c) of the Financial Institutions Article (1980, Supp. 1995). [17] This account was not subject to the Multiple Party Accounts Statute. [18] In cases involving "trust" accounts, it is settled that when, as here, the decedent and the surviving account holder were in a confidential relationship, the burden shifts to the survivor to prove the following elements in order to receive the money: (1) the decedent had donative intent; (2) the decedent understood the nature of the transaction; (3) the decedent's act was deliberate, voluntary, and free from undue influence; and (4) the transaction was fair and reasonable in all respects. Tribull v. Tribull, 208 Md. 490, 507, 119 A.2d 399 (1956); Hancock v. Savings Bank of Baltimore, 199 Md. 163, 171, 85 A.2d 770 (1952); Coburn v. Shilling, 138 Md. 177, 199, 113 A. 761 (1921); Boehm v. Harrington, 54 Md.App. 345, 351, 458 A.2d 885 (1983); Midler v. Shapiro, 33 Md.App. 264, 270, 364 A.2d 99 (1976). A gift contains three elements: intent, delivery, and acceptance. Dorsey v. Dorsey, 302 Md. 312, 318, 487 A.2d 1181 (1985). We observe that the "donative intent" element in the rule applicable to confidential relationships only corresponds to one of the gift elements. [1] While, in some fraud and deceit cases, the issue of fiduciary duty may be the only basis for the suit, in others it is but one of several allegedly causative factors. If breach of fiduciary duty is a separate cause of action, may it still be pled as an element of fraud or deceit or must it be stated as a separate cause of action? For example, in the instant case, it was pled both as a separate cause of action and also as an element of several other causes of actionall based on the same conduct. If pled as an element of fraud in one action and a judgment is rendered, may it later be pled as a separate cause of action or would res judicata, issue preclusion, or similar defenses be available? [2] The Adams Court later stated, "To the extent that Adams's argument is that a breach of fiduciary duty in and of itself permits the award of punitive damages, we reject his contention under the policy guidelines for punitive damages in general." Adams v. Coates, 331 Md. 1, 13, 626 A.2d 36 (1993). [3] The duty in Jorgensen arose by virtue of the husband's status "[a]s the manager of the community [i.e., marital] property." 193 P.2d at 733. Not surprisingly, today, that duty extends to both parties, and "stems in part from the confidential nature of the marital relationship... [and] from the fiduciary relationship that exists between spouses." In re Marriage of Modnick, 33 Cal.3d 897, 191 Cal.Rptr. 629, 633, 663 P.2d 187, 191 (1983). [4] It appears that appellee did not appeal the trial court's granting of these judgments. The school's cross appeal related to instructions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266084/	681 A.2d 407 (1995) STATE of Delaware v. David F. DAWSON, Defendant, ID No. 88K00413DI. IK86-12-0024R1, IK87-01-0834R1 to IK87-01-0847R1. Superior Court of Delaware, Kent County. Submitted: April 11, 1995. Decided: June 9, 1995. 411 Richard E. Fairbanks, Jr., Ferris W. Wharton, and Loren C. Meyers, Deputy Attorneys General, Department of Justice, Wilmington, for State of Delaware. Kevin J. O'Connell, Wilmington, and Sheryl Rush-Milstead, Wilmington, for defendant. MEMORANDUM OPINION RIDGELY, President Judge. Defendant David F. Dawson (Dawson) was convicted in 1988 by a Kent County jury of four counts of Murder in the First Degree, 11 Del.C. § 636; one count of Burglary in the Second Degree, 11 Del.C. § 825; one count of Robbery in the First Degree, 11 Del.C. § 832; six counts of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del.C. § 1447; and one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del.C. § 1448, all stemming from the robbery and murder of Madeline Kisner after his escape from imprisonment at the Delaware Correctional Center.[1] Following a penalty hearing the jury unanimously recommended a sentence of death pursuant to 11 Del.C. § 4209 for each count of first degree murder. This Court sentenced Dawson to death on each of the four counts of Murder in the First Degree and a term of 100 years incarceration on the remaining counts. On direct appeal, the Delaware Supreme Court affirmed the convictions and sentences. Dawson v. State, Del.Supr., 581 A.2d 1078 (1990) (Dawson I). Dawson's death sentences (not his convictions) were vacated and remanded for further proceedings by the United States Supreme Court. Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). On remand, the Delaware Supreme Court reversed the death sentences and ordered a new penalty hearing. Dawson v. State, Del.Supr., 608 A.2d 1201 (1992). This Court granted Dawson's motion for a change of venue to New Castle County for that hearing. In 1993 the New Castle County jury also unanimously recommended sentences of death on each of the first degree murder convictions. This Court subsequently sentenced Dawson to death for each count of Murder in the First Degree. State v. Dawson, Del.Super., IK86-12-024, Ridgely, P.J. (April 2, 1993). On appeal, the Delaware Supreme Court affirmed the sentences of death. Dawson v. State, Del.Supr., 637 A.2d 57 (1994) (Dawson II). After the remand of this case, Dawson filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 alleging among other things, that his counsel were ineffective in representing him in violation of his rights under the Sixth Amendment. This Court appointed new counsel for Dawson and stayed his scheduled execution in order that this motion could be considered. Venue was returned to Kent County by my Order. The Court ordered Dawson's former trial and appellate counsel to file affidavits in response to the allegations of ineffective assistance of 412 counsel raised. An evidentiary hearing on the factual issues to be resolved was conducted and briefing was completed on April 10, 1995. After careful consideration of the evidence presented, the expanded record, and the arguments of counsel, I conclude that Dawson's motion is devoid of merit and that he is not entitled to any form of postconviction relief from his convictions or the sentences of death which have been imposed. I. FACTS A comprehensive statement of facts is contained within the 1990 opinion of the Delaware Supreme Court. Dawson I, 581 A.2d at 1082-85. A summary of those facts as well as any additional facts necessary to decide the present motion follow. On the morning of December 1, 1986 between 1:15 a.m. and 2:20 a.m., Dawson escaped from the Delaware Correctional Center near Smyrna, Delaware with three other inmates, Larry Nave, Richard Irwin and Mark McCoy. That same morning before 5:00 a.m., a 1965 Ford Mustang was stolen from a location on the north side of Smyrna. This automobile was discovered later that morning at 6:15 a.m., on the shoulder of northbound U.S. Route 13, approximately one-half mile south of Fieldsboro, Delaware. Fieldsboro is between eight and eight-and-a-half miles north of Smyrna. Subsequent forensic investigation identified a latent fingerprint on the passenger door window to be that of McCoy and an address book belonging to Nave was uncovered in the back seat. Wilbert Dill ("Dill") testified that he operated the Fieldsboro service station, located at the intersection of Route 13 and Noxontown Road. When Dill arrived at work around 5:45 a.m. on December 1, 1986, he saw three men, dressed in similar blue clothing, standing by the station's bathroom. Dill noticed the three men attempt to enter vehicles parked at the other businesses located at the intersection. Dill observed only these three men for nearly an hour, until approximately 6:40 a.m. Cathy Spence ("Spence"), Nave's sister, identified the three men seen by Dill as Irwin, McCoy and Nave. Spence initially told the police that Nave had called her seeking assistance, but that she had refused. At trial, however, Spence testified that she went to the Fieldsboro service station and gave the men a change of clothing. Spence further testified that she remained with Nave, McCoy and Irwin until approximately 6:30 p.m. to 7:50 p.m. that day. Finally, she testified that at no point in time during that day did she see Dawson. Around the same time that McCoy, Nave and Irwin were at the Fieldsboro service station a 1970 Oldsmobile Starfire automobile was stolen from the south side of Smyrna. The car was taken at some point between 10:00 p.m., November 30 and 7:15 a.m. on December 1st. The car was first noticed in the early morning hours of December 1st and was found by the police the next day on County Road 139, east of Kenton. The location of the abandoned Oldsmobile Starfire was approximately two miles southwest of the home of Frank and Dorothy Seeney ("Seeneys"). Mr. Seeney left his home at approximately 5:30 a.m. on December 1st and his wife followed at about 6:30. At 3:30 p.m. Mrs. Seeney discovered their home had been burglarized in their absence. The stolen items were a man's size forty-eight motorcycle jacket, several pocket watches, and some containers of loose change. No other men's clothing was missing. Dawson pled guilty to the Seeney burglary and theft. Approximately one-half mile from the Seeney home was the residence of Richard and Madeline Kisner, the victim, and their son Brian. Mr. Kisner told the jury that he and his sixteen year old son left their home on December 1st at approximately 7:30 a.m. The couple's truck and 1986 Chrysler LeBaron were in the driveway when they left. Mrs. Kisner was home in the shower when her husband and son departed. Although she routinely arrived at her job everyday by 8:30 a.m., on December 1st she failed to appear at work. Her co-worker phoned the Kisner home several times during the day without any response. 413 Brian arrived home from school around 3:30 p.m. and noticed his mother in her red housecoat lying on her bed. Thinking she was ill, Brian did not disturb her. Shortly after he arrived home one of his mother's co-workers phoned the house and told Brian his mother had not come to work. Brian went to his mother's room, saw blood around her head and yelled to her. He received no response. He grabbed a knife for protection, called the police, and went outside to wait in the truck. When the police arrived they observed Mrs. Kisner and a large amount of blood on the bed. The base of a trophy was nearby. She had been gagged with a sock placed over her mouth and knotted at the back of her head. A nylon stocking was around her neck. Her hands were bound with shoestrings. Her obvious injuries included a laceration to the forehead and multiple stab wounds in the chest. An autopsy conducted by the Medical Examiner determined that there were twelve stab wounds to the neck and chest. The cause of Mrs. Kisner's death was cardiac tamponade, a hemorrhage within the pericardial sac which prevents the heart from pumping, and hemorrhage due to the stab wounds. When Mr. Kisner arrived home he told the police that his wife's 1986 Chrysler LeBaron and her car keys were missing. Also missing was some money. Mr. Kisner explained that his wife routinely carried several two dollar bills in her wallet. No men's clothing was missing. Mrs. Kisner's car was found in Milford, Delaware on the evening of December 1st, about a half block from a tavern named the Zoo Bar. Inside the car the police located a carton of cigarettes and a corn chip bag, each of which bore Dawson's fingerprints. Patty Davis testified that she and her roommate Geraldine Ryan encountered Dawson at the Zoo Bar that evening. He was wearing a black leather jacket that was too large for him. That same evening the Milford Police spotted a man fitting Dawson's description leaving the Zoo Bar, but were unable to find him. Later that evening, the State Police found a Ford LTD which had been in a one-car accident in Lincoln. The car had been stolen near where the Kisner vehicle was found. In the Ford the police found a leather hat, similar to that worn by the man the Milford Police had seen leaving the Zoo Bar. Approximately ½ to ½ mile from the accident the police found Dawson hiding on the floor of another car. When he was apprehended, Dawson was wearing the black leather jacket stolen from the Seeneys'. In the jacket, police found four pocket watches belonging to Mr. Seeney and a two dollar bill. A fifth watch was turned over to the police by Geraldine Ryan, one of Dawson's companions at the Zoo Bar. Dawson also had in his possession a cotton sock which matched in all microscopic and optical properties, as well as in color, composition, and construction, the sock used to gag Mrs. Kisner. Two Excedrin bottles filled with coins and a small knife were also seized. F.B.I. tests of the black jacket and Dawson's T-shirt showed red triacetate fibers on the clothing which matched the red triacetate fibers found on Mrs. Kisner's robe. Blood found on Dawson's undershirt and sweatshirt contained enzyme markers which were consistent with Mrs. Kisner's blood and the blood found on the bedspread, but not consistent with Dawson's own blood. II. THE ALLEGED GROUNDS FOR POSTCONVICTION RELIEF The grounds presented by Dawson for postconviction relief are as follows. In argument one, Dawson argues that his rights under the United States and Delaware Constitutions were violated when the State failed to preserve knives seized from the other escapees in Arizona. In argument two, Dawson argues his constitutional rights were further violated when the State failed to produce immediately a witness's statement which Dawson alleges is Brady material. In argument three, Dawson claims his constitutional rights were violated during jury selection when potential jurors were excluded for cause based on their opinions of the death penalty. 414 In argument four, Dawson argues that he was denied a fair trial and due process by remarks made by the prosecution in closing arguments. In argument five, Dawson contends his trial counsel provided ineffective assistance of counsel. In argument six, Dawson asserts that the Delaware Death Penalty Statute violates the Eighth and Fourteenth Amendments to the United States Constitution. In argument seven, Dawson argues that his death sentences for felony murder are unconstitutional because the felony murder statute does not adequately narrow the group of death-eligible defendants. In argument eight, Dawson contends that he did not receive a fair penalty hearing because prospective jurors were excluded because of their beliefs on the death penalty. In argument nine, Dawson asserts that his constitutional rights were violated by the prosecution's closing argument during the penalty phase. Finally, Dawson raises several additional grounds for relief in his amended motion for postconviction relief and original pro se motion that he did not brief in detail. Dawson states in his brief that he has not waived these arguments, which are: a. That he was denied a fair trial because the trial court denied his request for a change of venue. (paragraph 45 of Dawson's Amended Motion for Post-conviction Relief ("motion")); b. That Dawson was denied a fair trial when the court denied his request for a continuance (paragraph 47 of Dawson's motion); c. That Dawson was denied a fair trial when the jury was selected and the trial conducted in a manner that periodically exposed the jury to inflammatory publicity (paragraph 48a of the motion); d. That Dawson was not adequately protected against inflammatory publicity because the court failed to conduct adequate voir dire (paragraph 48b of the motion); e. That Dawson's rights to a fair trial and due process were violated when the jury was not sequestered (paragraph 49 of the motion); f. That Dawson's constitutional rights were violated when the jury found that one of the several statutory aggravating circumstances existed by a vote of 8 to 4. Thus Dawson argues he was sentenced to death in part based on a non-unanimous jury recommendation (paragraph 55 of the motion); g. That Dawson's counsel provided ineffective assistance during his penalty phase (paragraph 57 a-c of the motion and grounds 5 and 6 of Dawson's original pro se motion). The following grounds for relief are given in Dawson's initial pro se motion for postconviction relief ("pro se motion"), but not again raised in the amended motion or briefed. h. Trial counsel was ineffective for failing to introduce a potentially exculpatory ring seized from him at the time of his arrest and for failing to subpoena potentially exculpatory witnesses (ground 2 of pro se motion). i. Appellate counsel was ineffective for failing to raise issue of alleged perjury of State's witnesses (ground 3 of pro se motion). III. DISCUSSION A. The "Deberry" Issue Dawson claims in his first argument that his rights under the sixth and fourteen amendments to the United States Constitution and pursuant to Article I, Section 7 of the Delaware Constitution were violated when the State failed to preserve evidence that could have been favorable to him. This issue was not raised at trial or on direct appeal. Therefore, it is procedurally barred under Superior Court Criminal Rule 61(i)(3), unless Dawson can establish (1) cause for his failure to have raised it earlier and (2) actual prejudice. Younger v. State, Del.Supr., 580 A.2d 552 (1990). Evans v. State, Del.Supr., No. 266, 1986, Horsey, J., 1987 WL 36985 (Apr. 6, 1987) (Order). In his opening brief and in his amended motion for postconviction 415 relief Dawson makes no attempt to establish cause for failing to have raised the issue at trial or on direct appeal. However, in his reply brief Dawson argues that his claim is not procedurally barred because the alleged constitutional violation undermines "the fundamental legality, reliability, integrity [and] fairness of the proceeding leading to [his] judgment of conviction." (Reply brief at 1 citing to Super.Ct.Crim.R. 61(i)(5)). Dawson also contends that his trial and appellate counsel were ineffective for failing to raise the issue. Dawson's claim of ineffective assistance of counsel can rise to cause for his failure to have raised the issue earlier if he satisfies the test set out by the United States Supreme Court for determining whether counsel's representation was constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970)); see also Riley v. State, Del.Supr., 585 A.2d 719, 726 (1990); Flamer v. State, Del.Supr., 585 A.2d 736, 753 (1990). First, Dawson must show that his counsel's representation fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A strong presumption exists that the counsel's representation was professionally reasonable. Flamer v. State, 585 A.2d at 753. This standard is highly demanding. Id. at 754. Strickland mandates that when viewing the counsel's representation, this court must endeavor to eliminate the "distorting effects of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Second, a defendant must prove actual prejudice. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id.; Darden v. Wainwright, 477 U.S. 168, 194, 106 S.Ct. 2464, 2478, 91 L.Ed.2d 144 (1986); Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986); Burger v. Kemp, 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-32, 97 L.Ed.2d 638 (1987); accord, e.g. Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992); Flamer, 585 A.2d at 753-54; Riley, 585 A.2d at 726-27. In addition, the Delaware Supreme Court has consistently held that in setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. E.g., Skinner v. State, Del.Supr., No. 318, 1993, Holland, J., 1994 WL 91138 (March 31, 1994) (Order); Brawley v. State, Del.Supr., No. 372, 1992, Moore, J., 1992 WL 353838 (October 7, 1992) (Order); Younger, 580 A.2d at 556; accord, Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir.1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir.1987). That principle follows from the terms of Rule 61(b)(2): "[t]he motion ... shall set forth in summary form the facts supporting each of the grounds [for relief]." See DeShields v. Snyder, 830 F.Supp. 819, 823-24 (D.Del.1993) (citations omitted). By way of background, Dawson's fellow escapees, Larry Nave, Richard Irwin, and Mark McCoy, were arrested in Arizona after they had robbed a convenience store in St. George, Utah. The property seized from them at the time of their arrest was eventually delivered to the Delaware State Police in April 1987. Among the items seized were several firearms and eight knives. After the trial of the three for kidnapping, the knives were designated in September 1987 for disposal at auction in the spring of 1988, because they were no longer considered of value. See generally Gibbs v. State, Del.Supr., 479 A.2d 266, 270 (1984). In May 1988 the Public Defender's office asked to inspect the knives, but the knives had already been sold. Detective Kenneth Castelline went to Arizona after McCoy, Nave, and Irwin had been captured. Castelline's interview of McCoy and Nave revealed nothing inconsistent with the State's theory that Dawson had separated from the others soon after the escape and had alone burglarized the Seeney residence and later murdered Mrs. Kisner. Castelline was aware through conversations with the officer in charge of the Kisner murder investigation that Dawson's version of events implicating the other three men was not credible because of the time frames involved. Because all of the property taken 416 during the Seeney and Kisner burglary was recovered, there was simply no indication that the knives seized in Arizona were in anyway connected to the Kisner homicide. Additionally, trial counsel was told by Dawson that he had separated from the other three at around 2:00 a.m. on December 1st. Given this admission along with the chronology of events, trial counsel reasonably assumed that the knives had no relevance to Dawson's trial. I find that trial counsel's decision not to have asked to view the knives when they were available was within the wide range of reasonable professional assistance. The Court is not persuaded that defense counsel's representation was deficient under Strickland. Dawson argues that the failure to preserve the knives prejudiced him and deprived him of a fair trial. The Court will analyze the prejudice issue under Deberry and Strickland standards since the two issues are interwoven in this case. As Dawson notes, where a defendant alleges prejudice because the State failed to gather evidence, the following factors should be considered: 1. The degree of negligence or bad faith involved; 2. The importance of the missing evidence considering the probable value and the reliability of secondary or substitute evidence that remains available, and; 3. The sufficiency of the other evidence produced at the trial to sustain the conviction. Deberry v. State, Del.Supr., 457 A.2d 744, 752 (1983). After careful consideration of the expanded record, the Court is satisfied that Dawson has not shown any prejudice stemming from the destruction of the knives seized from Irwin, McCoy and Nave or from trial and appellate counsels' failure to pursue this claim. Initially, Dawson contends the destruction of the knives by the police was grossly negligent. Under the facts of the case however, the Court is not convinced that this is so. In the first place, the only evidence suggesting that the knives were relevant is Dawson's own version of the events which is flatly contradicted by the evidence. According to Dawson, the four men went to Smyrna after leaving the prison grounds. There, they stole a car and drove north, abandoning the car near Fieldsboro. After unsuccessfully looking for another car to steal and after Nave was unable to persuade his sister to retrieve them, the quartet returned to Smyrna by foot. In Smyrna, he contends, they stole another car, but with Dawson driving, the car was wrecked near Kenton. Dawson states he then alone burglarized the Seeney residence, and entered the Kisner household first. Dawson admitted tying Mrs. Kisner up, but claimed he left to get gas in the car, leaving the other three at the house. When Dawson returned after getting gas, he claimed that the other three were gone and Mrs. Kisner was dead. According to Dawson, it took the four two hours to reach the Kisner home after leaving Fieldsboro. The evidence contradicts Dawson's story in a number of significant ways. First, according to him, on the ride from Smyrna to Fieldsboro, Nave was in the right front seat, McCoy was driving, Dawson was in the right back seat, and Irwin was in the left back seat. The physical evidence suggests that Nave was in the back, his address book having been found by police there, and that McCoy was in the front passenger seat, as evidenced by his fingerprint on the right front side window. More significant is the discrepancy in the chronology of Dawson's account of events and the remainder of the evidence. Dawson's timetable is totally inconsistent with the evidence.[2] Wilbert Dill saw only three men in the Fieldsboro area from the time he arrived at work until approximately 6:40 a.m. Phone records show a call was placed from the pay phone outside of Dill's service station to Nave's sister Kathy Spence at 6:36 a.m. Therefore, if the four had left Fieldsboro at 6:40 a.m. the soonest they would have reached the Kisner home, according to Dawson's 417 chronology, would have been 8:40 a.m. Additionally, the Seeney burglary had to have been committed prior to the Kisner murder, pushing the time frame further back, as evidenced by the red triacetate fibers from Mrs. Kisner's robe found on the leather jacket taken from the Seeney residence. By this time however, Mrs. Kisner would have been en route to or at work. Dawson's version also fails to account for the fact that when he allegedly returned with Mrs. Kisner's Chrysler LeBaron, the other vehicle was still in the driveway,[3] yet the other three had left. It would be reasonable to assume that the three, who had already stolen several vehicles, would certainly have taken the truck as another getaway vehicle instead of fleeing on foot. It should also be noted that no clothing which could disguise blue prison uniforms was taken from the Kisner household. Additionally, a car abandoned east of Kenton, as described by Dawson, was seen by residents as early as 6:00 a.m. and no later than 6:30 a.m. Given these facts, the car described by Dawson and abandoned could not have contained Irwin, McCoy and Nave who were, at that time, in Fieldsboro. Finally, all the property taken from the Seeney and Kisner burglaries was recovered. Under all of these circumstances, it was not unreasonable for the knives seized by the police in Arizona to have been disposed. The Court finds no evidence of negligence or bad faith involved in the disposition of the knives. The knives were simply not material or probative of Dawson's guilt or innocence. Turning to the second prong of the prejudice test under Deberry (whether there was other evidence that remained available), the jury was told that the other three had been seized with knives in their possession. The defense argued that, given the shortcoming in the testimony of Dill and Spence, the inability of the State to produce a murder weapon, the "mobility" of the three men and the failure of the prosecution to test any of the weapons, the prosecution had failed to establish Dawson's guilt. The jury was made aware that the weapons seized could not be excluded as the murder weapon. Had the weapons been presented in evidence they would have added little to what was already known, since the medical examiner testified that she would have not been able to reach a conclusion whether a particular knife caused the wounds to Mrs. Kisner. This being the case, the knives themselves would not have been any more probative than the evidence already presented. Finally, in relation to all of the evidence in the case, the knives had minimal significance because there was more than sufficient evidence to have convicted Dawson. Johnson v. State, Del.Supr., 460 A.2d 539, 541 (1983). Dawson's fingerprints were found on items recovered from the Kisner vehicle and he had a two dollar bill similar to those carried by Mrs. Kisner in his possession when he was arrested. A sock visually and microscopically similar to that used to gag Mrs. Kisner was in Dawson's pocket. Fibers from Mrs. Kisner's robe were on Dawson's T-shirt and the black jacket stolen from the Seeneys'. Blood consistent with Mrs. Kisner's, but not Dawson's, was found on his undershirt and sweatshirt. The testimony of two witnesses placed the other three men and not Dawson at Fieldsboro where a call was made to Nave's sister at 6:36 a.m. There being no "clear link" between Mrs. Kisner's death and the other escapees, evidence of the knives would have been inadmissible. Void v. United States, D.C.App., 631 A.2d 374, 386 n. 27 (1993). See State v. Higgins, 201 Conn. 462, 518 A.2d 631, 634-35 (1986); State v. Prunier, 28 Conn.App. 612, 613 A.2d 311, 315 (1992); State v. Robinson, Me.Supr., 628 A.2d 664, 666-67 (1993); Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904, 911 (1989). See generally Whitfield v. State, Del.Supr., 524 A.2d 13, 15-17 (1987). Having carefully considered the facts of this case, the Court is convinced beyond any reasonable doubt that any error which may have existed in the handling of the knives seized by the police in Arizona did not impair the reliability of the verdict. As a result, Dawson has not established prejudice under the merits of his argument, Deberry or Rule 61(i)(3). Evans, supra, 418 at 3-4. Dawson's argument is without merit. B. The "Brady" Issue Dawson next asserts that his rights to due process and a fair trial were violated when the State failed to immediately inform the defense that a witness had given a contradictory statement. Dawson argues that the second statement made by Cathy Spence to the police during trial was Brady[4] material to which he was entitled to receive immediately. Spence originally told the police that she received two phone calls from her brother, Larry Nave, on the morning of December 1, 1986. According to Spence, Nave asked her to come pick them up. Spence told the police on tape that she had refused to help them. During Dawson's trial, Spence contacted the State and admitted that she had driven to Fieldsboro in response to her brother's calls for help. At trial Spence testified in accordance with her second statement, that she had gone to the service station in Fieldsboro and picked up Nave, Irwin and McCoy. Further, she testified she never saw Dawson. Dawson's counsel was given Spence's second statement prior to her testifying pursuant to Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); see also McBride v. State, Del.Supr., 477 A.2d 174, 181 (1984). The defense did not seek a delay in the trial to investigate Spence's changed story. The cross-examination by defense counsel was thorough and probed Spence's motivations for testifying in contradiction to her initial statement. The defense also played Spence's original statement for the jury. Dawson's argument that Spence's statement, made during the trial, should have been turned over immediately as Brady material is procedurally barred under Rule 61(i)(3) unless he can demonstrate cause and prejudice. Dawson, in his reply, briefly argues that the failure of appellate counsel to consider raising the issue on appeal constitutes ineffective assistance of counsel and establishes cause. Dawson does not assert that trial counsel's failure to have raised the issue or to have sought a continuance once Spence's statement was produced was ineffective. Dawson contends only that the failure by appellate counsel to even consider the issue "falls below the objective standard of reasonableness." After reviewing the record the Court disagrees. The Court does not find any violation of the Brady rule. Therefore, failure to have raised the issue can not be said to have been ineffective assistance of counsel. Under Brady v. Maryland, supra, the prosecution has a duty to disclose exculpatory evidence to the defense. In this case Spence's statement was disclosed to the defense during trial. Dawson argues that he should have been given the statement immediately so that he could have had an opportunity to prepare better for cross-examination of Spence. Trial counsel could have, but did not seek additional time to research the issue. This decision was not unreasonable trial strategy. Furthermore, given that the defense was able to effectively cross-examine Spence, Dawson has suffered no prejudice. The Delaware Supreme Court has held that: Prior statements of a witness sought for the purpose of impeachment do not ripen into discoverable evidence under Rule 17(c) until the witness has testified at trial and his credibility has been put in issue. United States v. Cuthbertson, 3rd Cir., 630 F.2d 139 (1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981). McBride v. State, Del.Supr., 477 A.2d 174, 181 (1984). Dawson received Spence's statement when he was entitled to it. Dawson contends that Spence's statement was impeachment material and thus Brady material under United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In Bagley, the Supreme Court ruled that when the State withheld evidence that government witnesses were compensated, this evidence was Brady material and should have been disclosed so that the defense could impeach the witnesses. Bagley, at 676-77, 105 S.Ct. at 3380-81; The situation presented in Bagley is simply not present in Dawson's case. First and most 419 importantly, Spence's statement was not concealed from Dawson and he had full access to it prior to her testimony. Next, and equally damaging to Dawson's contention, is the fact that Spence's statement was consistent with her trial testimony and thus not true impeachment evidence. Finally, Spence's statement can not be said to be favorable to Dawson. In fact, as Dawson acknowledged, it was detrimental to him. For these reasons the Court finds no Brady violation in the State's disclosure of Spence's second statement prior to her testimony and, therefore, there was no ineffective assistance of counsel for failure to have raised the issue on appeal. In any event, Dawson cannot establish actual prejudice. The focus of the inquiry is not on the effect that disclosure during trial had on defense preparation, "but instead on whether earlier disclosure could have created a reasonable doubt of guilt that did not otherwise exist." United States v. Rogers, 960 F.2d 1501, 1511 (10th Cir.1992) (quoting United States v. George, 778 F.2d 556, 562 (10th Cir.1985)). Dawson asserts that he could have developed evidence which would have damaged Spence's testimony if given her statement several days earlier. Dawson merely speculates that such evidence exists and has identified nothing that would place Spence's testimony in doubt. As a result, the few days the disclosure was delayed did not prejudice Dawson. Moore v. State, Del. Supr., No. 63, 1994, Veasey, C.J. (Feb. 17, 1995) (Order) at 6-8, 1995 WL 67104; Lilly v. State, Del.Supr., 649 A.2d 1055, 1057-59 (1994). Dawson's claim is barred by Rule 61(i)(3). C. The Selection of the Jury Dawson contends that his rights to a fair trial and penalty hearing were violated when members of the jury array were excused for cause based on their views on the death penalty. Dawson asserts that this selection process made the jury abnormally prone to finding him guilty and to imposing the death penalty. In the jury selection for the 1988 trial, four prospective jurors were challenged for cause by the prosecution on the basis that their views against the death penalty would prevent or substantially impair their performance of their duties in accordance with the Court's instructions and their oaths. See generally DeShields v. State, Del. Supr., 534 A.2d 630, 634 (1987). Dawson did not raise a claim based on this exclusion of jurors in Dawson I. As a result, review of this claim is barred by Rule 61(i)(3) unless Dawson demonstrates cause and prejudice. E.g., Younger v. State, Del.Supr., 580 A.2d 552, 555-56 (1990). In his reply brief, Dawson simply states that "the record clearly demonstrates both cause and prejudice," yet he fails to explain where and what such cause and prejudice are. Thus this claim is barred by Rule 61(i)(3). In any event, Dawson cannot establish prejudice: neither the Federal nor State Constitution prohibits the prosecution from challenging for cause any prospective juror whose views against the death penalty would prevent or substantially impair his or her performance in accordance with the Court's instructions and the oath as a juror, even if the resulting jury is more "conviction-prone." Buchanan v. Kentucky, 483 U.S. 402, 419-20 & n. 18, 107 S.Ct. 2906, 2915-16 & n. 18, 97 L.Ed.2d 336 (1987); Lockhart v. McCree, 476 U.S. 162, 179-84, 106 S.Ct. 1758, 1768-71, 90 L.Ed.2d 137 (1986); Lovett v. State, Del. Supr., 516 A.2d 455, 475-76 (1986); Blount v. State, Del.Supr., 511 A.2d 1030, 1035-39 (1986). During the jury selection for the 1993 penalty hearing, the prosecution also challenged four prospective jurors for cause on the basis that their views against the death penalty would impair their performance as jurors in accordance with the Court's instructions and their oaths. See generally DeShields, 534 A.2d at 634. Dawson failed to raise his claim that the jury was "unduly prone to find the necessary predicates to a death sentence" on appeal in Dawson II. This claim is, therefore, barred under Rule 61(i)(3) unless he can establish cause and prejudice. Younger, 580 A.2d at 555-556. Dawson has not established cause for his failure to have raised this issue earlier. Additionally, Dawson cannot establish actual prejudice because neither the Federal nor State Constitution prohibits challenges for cause of prospective jurors whose views against the death penalty would 420 prevent or substantially impair his or her duties as a juror. Buchanan, 483 U.S. at 419-20 & n. 18, 107 S.Ct. at 2915-16 & n. 18; McCree, 476 U.S. at 179-84, 106 S.Ct. at 1768-71; Lovett, 516 A.2d at 475-76; Blount, 511 A.2d at 1035-39; see Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851-52, 83 L.Ed.2d 841 (1985). This claim is barred under Rule 61(i)(3). Dawson's assertion that the exclusion of jurors for cause violated his right to a jury representing a fair cross-section of the community is also barred, as it was raised in Dawson II and rejected by the Delaware Supreme Court. Dawson II, 637 A.2d at 61 (citing cases); Super.Ct.Crim.R. 61(i)(4). Dawson has merely restated the issue. However, his ability to articulate the claim differently does not require this Court to revisit the question. Riley v. State, Del. Supr., 585 A.2d 719, 721 (1990). See Younger, 580 A.2d at 556. Furthermore, Dawson has not shown that "subsequent legal developments have revealed that the trial court lacked authority to convict or punish him." Flamer v. State, Del.Supr., 585 A.2d 736, 746 (1990). This claim is, therefore, barred. The final contention Dawson makes concerning jury selection is that four prospective jurors were improperly excused for cause. Dawson cites Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). Dawson did not object during the selection process nor did he raise the issue on appeal in Dawson II. This claim is thus barred by Rule 61(i)(3) absent a showing of both cause for the procedural default and prejudice. E.g., Younger, 580 A.2d at 555-56. Dawson argues that failure by appellate counsel to "even consider these claims" satisfies the cause prong of any waiver analysis. The Court finds that, given the record of the jury selection in this case, counsel's failure to raise this issue on appeal did not constitute ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Dawson has not claimed that the relevant voir dire questions were inconsistent with the applicable legal standard, set out in Witt, 469 U.S. at 431-32, 105 S.Ct. at 855-56; Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); DeShields, 534 A.2d at 634; and Riley v. State, Del.Supr., 496 A.2d 997, 1002-04 (1985). Furthermore, during voir dire Dawson did not object to the exclusion of the prospective jurors, Napolski, Bradley, Marshall or Macturk, or request additional questions of these potential jurors. No ambiguity in their responses regarding their views on the death penalty was detected by the Court or either side. See Witt, 469 U.S. at 431 n. 11, 434-35, 105 S.Ct. at 855 n. 11, 857-58. The Court's decision to excuse these jurors for cause was based on its firsthand observation of them. A decision of that kind is given substantial deference by appellate courts. Witt, 469 U.S. at 434, 105 S.Ct. at 857; Ferguson v. State, Del.Supr., 642 A.2d 772, 777 (1994); DeShields, 534 A.2d at 636. The Court simply is not persuaded that its decision to excuse was erroneous. Dawson contends that prospective juror Ruth Marshall's answers indicate that she could apply the law as charged. However, when asked if she could "answer the penalty hearing questions no if the evidence so warrants, regardless of your feelings about the death penalty," she responded, "I don't know." Furthermore, Marshall responded in the affirmative when asked if she would automatically vote that the mitigating circumstances outweighed the aggravating circumstances because of her beliefs about the death penalty. There was no ambiguity in Marshall's response. She was properly excused for cause. Consequently, failure to have raised the issue at trial or on direct appeal was not ineffective assistance of counsel. Dawson's claim is procedurally barred by Rule 61(i)(3). D. The Prosecutors' Argument Dawson contends that the prosecutors violated his constitutional rights by making prejudicial comments to the jury during closing statements in both the 1988 trial and the 1993 penalty hearing. Dawson did not object to either of the closing arguments and did not raise the claims on appeal in Dawson I or Dawson II. As a result, review of this claim is barred by Rule 61(i)(3), unless Dawson 421 shows (1) cause for failing to raise the issue earlier and (2) actual prejudice: E.g., Saunders v. State, Del.Supr., 602 A.2d 623, 624-25 (1984); Younger v. State, Del.Supr., 580 A.2d 552, 555-56 (1990). Dawson has not shown that his counsel was ineffective nor has he attempted to show that some external impediment prevented counsel from raising the argument earlier. He has failed to demonstrate cause for his procedural default, and his claim is barred by Rule 61(i)(3). E.g., Younger, 580 A.2d at 556. Additionally, Dawson has failed to establish prejudice stemming from the remarks. The first statement Dawson challenges is the prosecutor's use of "we," as a statement made in the context of the prosecution's explanation that the State's theory was that Kisner's death was intentional. The prosecutor did not place the prestige of the Attorney General's Office behind the State's witness nor did he state that he had extra-judicial information supporting conviction. Finally, a curative instruction was promptly given by the Court which adequately cured any prejudicial effect the comment may have had. E.g., Kornbluth v. State, Del.Supr., 580 A.2d 556, 560 (1990); Brokenbrough v. State, Del. Supr., 522 A.2d 851, 857 (1987). The second statement Dawson attacks read in context is merely the prosecutor asking the jury to use common sense in evaluating the evidence and not to engage in speculation. Dawson highlights comments out of context. First, he cites to the statement, "Both sides owe you the duty of giving arguments that make sense that are supported by evidence and are not refuted by other evidence." Dawson skips two paragraphs and highlights the following comments, "So we are still here and we are still asking ourselves why, why, why?". Dawson asserts these comments are in violation of the rule set out in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Dawson has not established that these comments were manifestly intended to reflect on his silence or that the remarks were of such a nature that the jury would naturally and necessarily take them to be a comment on his failure to testify. E.g., DeShields v. Snyder, 829 F.Supp. 676, 684 (D.Del.1993). There is no Griffin violation when the prosecutor's comment is directed toward the lack of evidence supporting the defense theory of the case when the defendant has not testified. E.g., United States v. Glantz, 810 F.2d 316, 323 (1st Cir.1987); Coleman v. Brown, 802 F.2d 1227, 1237-38 (10th Cir.1986); United States v. Nabors, 762 F.2d 642, 649-50 (8th Cir.1985); Bontempo v. Fenton, 692 F.2d 954, 958-59 (3rd Cir.1982). The prosecutor's comment here was within this standard. Furthermore, even if the jury had the incorrect impression that the remark was directed towards Dawson's decision not to testify, the Court instructed the jury that the State had the burden of proof and that no adverse influence was to be drawn from Dawson's decision not to testify. This cured any possible confusion on that issue. E.g., Nabors, 762 F.2d at 650; United States v. Adamo, 534 F.2d 31, 40 (3d Cir.1976); Boyer v. State, Del.Supr., 436 A.2d 1118, 1123 (1981). Finally, Dawson reads the prosecutor's rhetorical question, "so we are still here and we are still asking ourselves why, why, why?" out of context. The remark simply underscored the senseless and needless nature of Kisner's death, and it was not a comment directed at Dawson's decision not to testify. Next, Dawson asserts the prosecutor's final remark in rebuttal, urging the jury to, "Tell everyone that he is a murderer," was improper. After reviewing the evidence, it is clear that this remark was proper, was fully supported by the evidence and as such was not unfairly prejudicial. State v. Brazzell, 38 Conn.Supp. 695, 460 A.2d 1306, 1308 (1983); Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590, 597 (1989). Dawson has also not established prejudice concerning remarks made by the prosecutor in the 1993 penalty hearing. He first asserted that the remark that, "A life sentence for this defendant would be like sending him to his room. It would be a matter of time before ... he would be transferred out of max into medium, and who knows, maybe he could even have his own cell back." This comment was proper as it 422 was directed toward Dawson's non-amenability to further imprisonment and to his being an escape risk. Both these concerns implicate future dangerousness, his capacity for rehabilitation and the specific deterrent effect of the death penalty and were proper. Coleman, 802 F.2d at 1239; Tucker v. Kemp, 762 F.2d 1496, 1507 (11th Cir.1985); Brooks v. Kemp, 762 F.2d 1383, 1406 & n. 39, 1411 n. 46 (11th Cir.1985). Finally, Dawson complains that the remark that, "there was no lawyer to speak on Marie's behalf, no judge to rule on objection[s], no jury to consider whether or not her aggravating circumstances outweighed her mitigating circumstances. There was only David Dawson and Marie Kisner," was improper. When read in context the remark served to remind the jury to focus on the evidence. In this light, the comment was proper. Jeffries v. Blodgett, 988 F.2d 923, 934 (9th Cir.1993); Parks v. Saffle, 925 F.2d 366, 369 (10th Cir.1991). See also California v. Brown, 479 U.S. 538, 543, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987). Furthermore, the jury was specifically instructed that it was to answer the § 4209 interrogatories based solely on the evidence they heard and the instructions on the applicable law. The Court instructed the jurors that they must not be swayed by passion, prejudice, public opinion or public feeling. This cured any prejudicial effect the comment may have had. Dawson has failed to establish either cause or prejudice as required under Rule 61(i)(3). These claims are barred. E. Ineffective Assistance of Counsel Issues Dawson asserts that his trial counsel were ineffective in that they: (a) did not have a defense expert examine the brown hair of Caucasian origin found at the scene and did not prepare for cross-examination of the F.B.I. hair and fiber analyst; (b) did not adequately consult with him regarding his decision to testify on his behalf during the trial; (c) did not adequately determine and develop Dawson's version of events and did not adequately consult with him about the facts of the case; (d) did not fully use available discovery procedures; (e) did not make appropriate pre-trial motions and objections during the trial; (f) referred to Dawson's statement in opening, but later did not introduce it after the State failed to introduce it; (g) did not properly cross-examine the victim's son, Brian Kisner; and (h) did not have a unified theory of the defense case. Dawson first asserts that the failure of his trial counsel to have a defense expert examine a brown hair of Caucasian origin found at the scene and to properly prepare for cross-examination of the F.B.I. hair and fiber analyst was ineffective assistance of counsel. Dawson has neither explained how the cross-examination was defective nor what additional facts could have been established from further questioning. This alone requires dismissal of the claim. Flamer, 585 A.2d at 755. Further, Dawson has not alleged or substantiated how the asserted shortcomings in cross-examination affected the result of the trial. Finally, the Court accepts the testimony of Dawson's trial counsel, that Dawson told him that he split from the other three escapees shortly after the breakout and went alone to the Kisner residence. Based on this statement by Dawson, it was reasonable for trial counsel not to have the hair compared to the three other escapees. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67. Dawson's mere speculation that test results would be favorable does not, in the absence of specific affirmative showing of the nature of the missing evidence, establish any prejudice from trial counsel's tactical decision. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (citing, United States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir.1991)). Next, Dawson asserts that trial counsel did not adequately consult with him regarding his decision to testify on his behalf during the trial. The Court accepts the affidavit of defense counsel to the effect that he discussed with Dawson his choice of testifying or not testifying on several occasions. Counsel sent Dawson a letter detailing what was involved in his choice of whether or not to testify. Further, Dawson signed an affidavit stating that he understood counsel's letter and that he did not wish to testify at trial, however, "if I change my mind at any time, I 423 agree to tell my lawyers ... immediately." Additionally, Dawson has not demonstrated a reasonable probability that his own testimony, which he now states he wanted to give, would have changed the outcome. Dawson asserts that defense counsel did not adequately determine and develop his version of events and did not adequately consult with him about the facts of the case. However, this contention is not supported by the record. The record shows that defense counsel investigated the case carefully. After careful consideration of Dawson's claims, the Court is not persuaded that defense counsel's presentation and preparation was deficient under Strickland. Nor has Dawson demonstrated what evidence counsel would have discovered or introduced that would have helped the defense. Otey v. Grammer, 859 F.2d 575, 577-78 (8th Cir.1988); Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985); Neal v. Grammer, 769 F.Supp. 1523, 1527 (D.Neb.1991) (citing cases), aff'd, 975 F.2d 463 (8th Cir.1992). Dawson's conclusory allegations are insufficient to support his claim. Neal, 769 F.Supp. at 1527; United States ex rel. Sheppard v. Roth, 762 F.Supp. 190, 195 (N.D.Ill.1991). This claim is without merit. Dawson challenges defense counsel's failure to fully use certain discovery procedures and charges that his counsel failed to make appropriate pre-trial motions and objections during trial. The record does not support these contentions. Nor has Dawson alleged or substantiated how the supposed shortcomings in the defense discovery methods affected the trial. Dawson has not specified the basis for any objections that counsel should have made, warranting dismissal of his claim. United States v. Brown, 739 F.2d 1136, 1147 (7th Cir.1984). After carefully reviewing the record, the Court is not persuaded that defense counsel's preparation or use of discovery procedures was deficient under Strickland. Dawson specifically claims that defense counsel's representation was deficient for failure to sever count 15 of the indictment, charging Dawson with possession of a deadly weapon by a person prohibited. Given that the jury would necessarily be aware that Dawson had prior criminal convictions by virtue of count 13, charging him with murdering Kisner in furtherance of the commission of escape after conviction, the Court finds no prejudice from counsel's failure to move to sever count 15. Next, Dawson alleges that by mentioning in the opening statement Dawson's statement to correctional officers, defense counsel was ineffective because the statement was never introduced. The Court accepts as reasonable counsel's belief that the State would introduce the statement, given the State's intense opposition to the defense motion to suppress. The suppression hearing was immediately before opening statements. Trial counsel's belief and his decision to make the reference was reasonable under Strickland. Furthermore, Dawson has not established prejudice. Dawson's next attack is on trial counsel's cross-examination of Brian Kisner. The Court accepts trial counsel's explanation that he believed he had a duty to Dawson to explore Brian's story carefully. After reviewing the record, the Court is unpersuaded that counsel's cross-examination was deficient under Strickland. Nor has Dawson established prejudice. Dawson's final claim of ineffective assistance of counsel is that trial counsel did not have a unified theory of the defense case. After a complete review of the trial and expanded record, the Court finds that trial counsel's strategy to ask sufficient questions so as to create a reasonable doubt in the minds of the jury was not unreasonable or deficient under Strickland. Flamer, 585 A.2d at 755-56. Furthermore, Dawson has failed to offer an alternative theory for his defense which would have been as good (or better). Dawson has not established prejudice. F. Capital Punishment Issues Dawson contends that 11 Del.C. § 4209 is unconstitutional and/or preempted by federal law because: (1) it fails to provide the Superior Court with any standards as to how the Court is to be guided by the jury's response 424 to the two statutory questions; (2) death by lethal injection offends evolving standards of decency; (3) the State law providing for execution by lethal injection is preempted by federal law and; (4) the application of the 1991 amendment to 11 Del.C. § 4209 to his second penalty hearing violated the ex post facto clause of the State and Federal Constitutions. Each of these claims must be rejected under settled State and Federal Law. Dawson's first contention, that § 4209 fails to provide any standards for the Court to be guided by the jury's response, is foreclosed by the United States Supreme Court's recent opinion in Harris v. Alabama, ___ U.S. ___, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). Under Harris, "[t]he Eighth Amendment does not require the State to define the weight the sentencing judge must accord to an advisory jury verdict." Id. at ___, 115 S.Ct. at 1036. Additionally, the Court had already determined to give "great weight" to the jury's recommendation. The Court, therefore, rejects Dawson's claim that the sentencing procedure is arbitrary. Dawson's second contention that the death penalty constitutes cruel and unusual punishment because lethal injection offends evolving standards of decency is procedurally barred because Dawson failed to raise this claim on appeal in either Dawson I or II. At the time of his sentencing only lethal injection was available as an execution method and Dawson's failure to have raised this claim earlier bars the claim absent a demonstration of cause and prejudice. Compare State v. Deputy, Del.Supr., 644 A.2d 411, 417 (1994) aff'd, Del.Supr., No. 225, 1994, Horsey, J., 1994 WL 285767 (June 21, 1994) (Order). Dawson has not shown cause for his failure to have raised this issue. Furthermore, given that this Court rejected the identical claim in Deputy, Dawson cannot establish actual prejudice. See Deputy, 644 A.2d at 420-22. Accord Deputy v. Taylor, No. 94-339-CON (D.Del. June 22, 1994). Dawson next asserts that State law providing for execution by means of lethal injection is preempted by federal law. Again Dawson's failure to have raised this claim in either Dawson I or II bars relief absent cause and prejudice. Dawson has not shown cause for the default nor can he establish actual prejudice. The identical claim has been rejected by this Court in Deputy. 644 A.2d at 417-20. Accord Deputy v. Taylor, supra. Finally, Dawson contends that the application of the 1991 amendment to § 4209 to his second penalty hearing violated the ex post facto clause of the State and Federal Constitutions. However, the Delaware Supreme Court, adhering to State v. Cohen, Del.Supr., 604 A.2d 846 (1992), decided the identical argument on appeal. Dawson II, 637 A.2d at 60-61. Because the issue has been previously decided, further consideration is barred by Rule 61(i)(4). Riley v. State, Del.Supr., 585 A.2d 719, 721 (1990). See Younger, 580 A.2d at 556. Since Dawson has not shown that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him," this claim must be denied. Flamer v. State, Del.Supr., 585 A.2d 736, 746 (1990). G. Felony Murder Issue Dawson asserts that his death sentence for felony murder should be reversed because the felony murder statutes under which he was convicted, 11 Del.C. § 636(a)(2) (reckless felony murder based on killing Mrs. Kisner during a commission of a burglary) and 11 Del.C. § 636(a)(6) (criminally negligent felony murder based on killing Mrs. Kisner during the commission of first degree robbery), fail to adequately narrow the group of death-eligible defendants. Dawson contends that, because felony murder automatically creates an aggravating circumstance, there is no narrowing and thus the statutes punish non-intentional murder disproportionately more harshly than intentional murder. Dawson's claim is not justiciable under the concurrent sentence doctrine. While concurrent jail sentences are not available under Delaware law, 11 Del.C. § 3901(d), Dawson was given concurrent death sentences, having been convicted of four counts of first degree murder under Subsections 636(a)(1), (2), (6), and (7). Because Dawson was ordered to be executed at the same time for 425 the four counts, the sentences are necessarily concurrent ones. Dawson's collateral attack only reaches two of the four concurrent sentences. As a result, sound prudential limitations on judicial decision-making renders consideration of his claim inappropriate under the concurrent sentence doctrine. That doctrine, "as stated by Lord Mansfield before the Declaration of Independence, is `that if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad.'" Claassen v. United States, 142 U.S. 140, 146, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891). Accord Kiyoshi-Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378-79, 87 L.Ed. 1774 (1943); Roviaro v. United States, 353 U.S. 53, 56, 77 S.Ct. 623, 625-26, 1 L.Ed.2d 639 (1957); Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115 (1959); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756-57, 13 L.Ed.2d 658 (1965); Benton v. Maryland, 395 U.S. 784, 788-91, 89 S.Ct. 2056, 2059-61, 23 L.Ed.2d 707 (1969) (rule is one of judicial economy, making it "unnecessary" to review claims attacking only one of several counts which support the same sentence); Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 2364 n. 16, 37 L.Ed.2d 380 (1973). Since this rule dates to English common law before the Revolution, it is encompassed in Delaware law. See Claudio v. State, Del.Supr., 585 A.2d 1278, 1291 (1991) (English common law became Delaware law upon independence). Accordingly, since Dawson's other death sentences are not challenged, any "narrowing argument" cannot affect him and the Court would render nothing more than an advisory opinion if it addressed the argument. In any event, this claim is procedurally barred by Rule 61(i)(3) as having not been raised in Dawson I or II. Younger v. State, Del.Supr., 580 A.2d 552, 555-56 (1990). Dawson has not established cause, nor can he show any actual prejudice. The Delaware Supreme Court and United States Court of Appeals for the Third Circuit have rejected the argument in other cases. Deputy v. Taylor, 19 F.3d 1485, 1500-02 (3d Cir.1994); Jackson v. State, Del.Supr., 643 A.2d 1360, 1381 (1994); Ferguson v. State, Del.Supr., 642 A.2d 772, 780-81 (1994); Riley v. State, Del.Supr., 496 A.2d 997, 1021 & n. 32 (1985); Whalen v. State, Del.Supr., 492 A.2d 552, 565-69 (1985). Dawson has not shown the Court that these precedents should not be followed on the merits. Therefore, this claim is not justiciable under the concurrent sentence doctrine and it is procedurally barred by Rule 61(i)(3). H. Issues Not Briefed Dawson raised several issues in both his original pro se postconviction motion and his subsequent amended motion that were not briefed in detail. Dawson urges the Court not to find these claims waived. While the opinions of the Delaware Supreme Court teach that issues not briefed are deemed waived and this rule satisfies the intent of judicial economy, the Court will consider each of these claims so that there is a full adjudication of the procedural bars on the merits of his claims. (a) Dawson argues that he was denied a fair trial because his request for a change of venue was denied. This claim was specifically raised and rejected by the State Supreme Court in Dawson I, 581 A.2d at 1088-91. Further consideration of the issue is barred by Rule 61(i)(4) unless reconsideration "is warranted in the interest of justice." Review of Dawson's claim offers no reason to believe that "subsequent legal development have revealed that the trial court lacked authority to convict or punish him." Flamer, 585 A.2d at 746. This claim is procedurally barred. (b) Next, Dawson asserts he was denied a fair trial when his request for continuance was denied on the morning of trial. This claim is simply a restatement of his claim that the jury was not impartial, which was raised and rejected in Dawson I, 581 A.2d at 1088-91. Having been previously resolved, this claim is similarly barred by Rule 61(i)(4). Dawson's ability to articulate the claim differently does not require this Court to revisit the question. Riley, 585 A.2d at 721; see Younger 580 A.2d at 556. This claim is procedurally barred. (c) Next, Dawson argues he was denied a fair trial when the jury was selected and the 426 trial conducted in a manner that periodically exposed the jury to inflammatory publicity. Though Dawson provides no specifics, the underlying basis of these arguments is that the jury was not impartial. This issue has, however, already been adjudicated in Dawson I, 581 A.2d at 1088-91 and is thus barred from further consideration; Super.Ct.Crim.R. 61(i)(4). Dawson has given the Court no reason to revisit this issue in the interests of justice. (d) Next Dawson alleges the voir dire by the Court was not adequate to protect the jury from inflammatory publicity. This claim is yet again a restatement of the non-impartial jury issue raised in Dawson I and is, therefore, procedurally barred by Rule 61(i)(4). (e) Dawson contends his rights to a fair trial and due process were violated when the Court did not sequester the jury during trial. This claim was not raised by Dawson on appeal in Dawson I and review of this claim is consequently barred absent a showing of cause and prejudice. Super.Ct.Crim.R. 61(i)(3). See Younger, 580 A.2d at 555-56; Johnson, 460 A.2d at 540. Dawson has failed to articulate cause for this procedural default in either his initial motion, his amended motion or in his briefing to the Court. Accordingly this claim is procedurally barred by Rule 61(i)(3). Moreover, Dawson cannot establish prejudice given that the Court adequately instructed the jury not to discuss the case with anyone, not to visit or view any place involved, and not to view or listen to reports on the case. The jury regularly confirmed its compliance with such instructions. (f) Dawson argues his constitutional rights were violated when the jury found by a vote of 8 to 4 that the killing of Mrs. Kisner was for pecuniary gain. Dawson argues that his death sentences are invalid because they were based in part on a non-unanimous finding. Dawson did not raise this issue on appeal nor has he attempted to show cause for his procedural default. This claim is, therefore, barred. Super.Ct.Crim.R. 61(i)(3). Moreover, Dawson has shown no prejudice because there is no requirement for jury sentencing in capital cases under the Federal or State Constitution. See Hildwin v. Florida, 490 U.S. 638, 640-41, 109 S.Ct. 2055, 2056-57, 104 L.Ed.2d 728 (1989); Cohen, 604 A.2d at 852. (g) Dawson asserts that defense counsel was ineffective during the preparation for and presentation of the penalty phase. After careful consideration of each of Dawson's claims, the Court is not persuaded that defense counsel's preparation or presentation during the penalty phase was deficient under Strickland. (h) Dawson next contends that his trial counsel was ineffective for failing to introduce a "potentially exculpatory" ring seized from him at his arrest and for failing to subpoena potentially exculpatory witnesses. Dawson, however, does not articulate how the unintroduced evidence or the unidentified, non-subpoenaed witnesses would have been exculpatory. Dawson's conclusory allegations are insufficient to support his claim for relief. Neal, 769 F.Supp. at 1527. (i) Finally, Dawson contends his appellate counsel was ineffective. First, he argues appellate counsel failed to raise the issue of alleged perjury of certain State's witnesses. Dawson contends Cathy Spence perjured herself. After careful review of the record, the Court finds appellate counsel's conduct reasonable under Strickland because this claim of perjury would have failed on appeal. See Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.1991) (rejecting an identical claim.) Concerning perjury by other witnesses, Dawson fails to identify which witnesses supposedly committed perjury. Thus this claim is without merit. Dixon v. State, Del.Supr., No. 153, 1991, Holland, J., 1992 WL 21124 (Jan. 14, 1992) (Order), at 4. Second, Dawson asserts appellate counsel did not raise an issue relating to the "adequacy of the hair and fiber analysis." Since Dawson fails to explain how the evidence was deficient and offers no specifics about the "potentially exculpatory evidence," this claim is without merit. IV. CONCLUSION Dawson's alleged grounds for postconviction relief are either procedurally barred or without merit. The representation of Dawson *427 by his defense counsel was well within the wide range of reasonable professional assistance. The factual and legal bases for Dawson's convictions and death sentences were both sound and the evidence against him was overwhelming. Dawson's motion and amended motion for postconviction relief are DENIED. The date of Dawson's execution is rescheduled by the modified sentence order entered contemporaneously herewith.[5] NOTES [1] On June 6, 1988 Dawson pled guilty to second degree burglary and theft stemming from a related burglary of the Seeney residence on the same day as the murder of Mrs. Kisner. [2] Dawson's trial counsel reached the same conclusion. Additionally, Dawson admitted to his counsel that his initial statement that the four were together was not true and that he separated from the other three shortly after their escape. [3] Brian Kisner testified he went into the truck after discovering the body. [4] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) [5] When Dawson's original death sentence was imposed, he was in Court with counsel and had an opportunity to be heard both personally and through counsel. Having found no basis whatsoever for postconviction relief, this Court has no discretion in reimposing the death sentence and Dawson's presence is not required for the limited purpose of setting a new execution date. State v. Bailey, Del.Supr., Cr.A. No. IK79-05-0085R1, Ridgely, P.J. (Aug. 23, 1991) aff'd, Del.Supr., No. 343, 1991, Horsey, J. (March 9, 1992); Hooks v. State, Del.Supr., 429 A.2d 1312 (1981).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266095/	461 F.Supp. 957 (1978) INTERNATIONAL FEDERATION OF PROFESSIONAL & TECHNICAL ENGINEERS, LOCAL 241 v. RCA CORPORATION. Civ. A. No. 78-353. United States District Court, E. D. Pennsylvania. October 31, 1978. Ira Silverstein, Philadelphia, Pa., for plaintiff. John H. Leddy, Nicholas N. Price, Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER NEWCOMER, District Judge. This is a suit by Local 241 of the International Federation of Professional and Technical Engineers (Union) to review a labor 958 arbitrator's award, which denied a grievance filed by the Union on behalf of five of its members. Jurisdiction of the Court is based on § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). Both the Union and the defendant RCA Corporation have moved for summary judgment. The Union seeks vacation of the arbitrator's award and judgment on the merits of the original grievance, and RCA asks the Court to uphold the arbitrator's decision. For the reasons set forth below RCA's motion will be granted and the Union's motion will be denied. There are no material facts in dispute. In 1973 and early 1974 RCA transferred ten employees from its Moorestown, New Jersey plant to its Camden, New Jersey plant at a time when there were five employees laid off or on downgrade status at Moorestown and another five laid off or downgraded at Camden. The Union objected to RCA's action and filed a grievance on behalf of the five Camden employees who were not recalled or upgraded. For some reason, perhaps oversight, the Union did not grieve on behalf of the five Moorestown employees, and the arbitrator's award, rendered by Arbitrator Arnold M. Zack on February 19, 1975, was shaped accordingly: "The Company did violate the parties' agreement in loaning design and drafting personnel from the Moorestown plant to the Camden plant when the latter plant had such employees . . . on layoff or downgrade. Those Camden employees who were affected by the company's action shall be reimbursed for earnings lost retroactive to the date of the grievance." (emphasis supplied) The Union sought for about six months to reopen the grievance to include the five Moorestown employees. It argued in various proceedings that the Zack award did apply to the five Moorestown employees, but its efforts were unsuccessful. Finally, on October 23, 1975, the Union filed grievance No. 117966 on behalf of these five employees. That grievance was carried to arbitration before Arbitrator Lewis M. Gill, and it is the Gill award which is the subject of this lawsuit. Grievance 117966 was worded as follows: "The Company has violated the General and Supplementary agreement by not paying Misters Clease, Smigiel, Ballilana, Bauer and Lienbach, the financial compensation due them by the arbitrators decision in arbitration case no. 14 30 0221 74 M/J [the Zack award]. The Union demands that these people be paid immediately." Arbitrator Gill held a hearing on the grievance on August 31, 1977, and rendered a decision in favor of RCA on December 12, 1977. Arbitrator Gill's decision was narrow in scope. He ruled only that the Zack award did not establish the rights of the five Moorestown employees to compensation for RCA's actions, specifically declining to reach the merits of the employees' complaint (as opposed to their grievance). In other words, he refused to address the question of whether the Moorestown employees' contractual rights were violated by RCA. The Union and RCA do not agree on what questions were submitted to Arbitrator Gill. The Union argues that four questions were submitted at the hearing and that one of those questions was whether the five Moorestown employees were entitled to compensation in light of the precedent set by the Zack award. RCA defines the submission much more narrowly, arguing that the only issue submitted was that set forth in the written grievance. Arbitrator Gill attempted at the hearing to summarize the issues presented for decision. After discussing two, or perhaps three, preliminary questions to be decided, Arbitrator Gill said that "there would be an issue, I gather, of whether this grievance should be upheld on its merits in light of what was said by both Arbitrator Zack and Knowlton."[1] (Arbitrator's Opinion, p. 5.) 959 Union counsel then distinguished this issue from the issue of whether the employees were entitled to payment under the Zack award on its face, and Arbitrator Gill apparently agreed to the distinction. Arbitrator Gill acknowledged in his opinion that his framing of the issue at the hearing could be read "as suggesting the broader issue posed by Union counsel" (Arbitrator's Opinion, p. 10), but looked to the intent of the parties and concluded that "Company counsel did not understand himself to be consenting to any broadening of the issue, nor did I intend to broaden it." Id. The Court does not read the submission so narrowly. In fact, from the limited evidence available in the moving papers it appears that the Union's interpretation of the submission is substantially correct. Counsel for RCA did not object in any way to the framing of the question in terms of "whether this grievance should be upheld on its merits in light of what was said by both arbitrator Zack and Knowlton." It must have been clear to everyone that the written grievance made no reference to the Knowlton decision, and that the Knowlton decision could only affect the merits of the grievance at hand as a precedent. It is also clear that the Zack grievance is included in the sentence because it too could serve as a precedent. Courts may not review the merits of an arbitrator's decision. United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). However, it is well established that an arbitrator may not decide matters outside the scope of the submission, and a court may overturn an arbitrator's award if he has done so. Id., pp. 597-8, 80 S.Ct. 1358. The issue presented by this case is slightly different. Here, the question is whether the court or the arbitrator is to decide what the terms of the submission were. It would be logical for the court to decide what the submission was, because, first, a submission is a contract. The rules of contract formation present legal questions, best decided by a court. Second, if the court is to decide whether the arbitrator has exceeded the scope of the submission it is reasonable for the court to define what the terms of the submission were.[2] This Court does not necessarily agree with Arbitrator Gill that RCA never intended to broaden the issues submitted, and would perhaps be inclined to remand for a decision based on the Court's interpretation of the submission. The reason that the Court must instead hold for RCA is that the Collective Bargaining Agreement supports Arbitrator Gill's award. ¶ 7.06 of the Agreement says that "all grievances shall be presented in writing on grievance forms which will be provided from time to time by the Company." Under ¶ 7.08 arbitration is the third step of the procedure by which "duly presented grievances shall be presented and negotiated." Reading the two paragraphs together, an arbitrator could readily conclude that only written grievances are arbitrable a conclusion which would foreclose consideration of any oral modification of the submission. The grievance in issue was in the proper form, but as written it presents only the narrow issue of whether the Moorestown employees are entitled to compensation "due them by . . . [the Zack award]." (Emphasis supplied). Even assuming that this Court has the power to decide what the submission was, it cannot read the language of the grievance as demanding relief in accordance with the precedent set by the Zack award. The written grievance presented the same question that the Union was trying to resolve between February, 1975, and August, 1975, i. e. whether the Zack award "on its face" covered the Moorestown employees. If Arbitrator Gill had said in his opinion that he was obliged by the collective *960 bargaining agreement to consider only the written grievance without oral modification, this Court would affirm his decision without hesitation, notwithstanding the statements made at hearing. Questions of procedural arbitrability are for the arbitrator to decide, John Wiley & Son, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), and the collective bargaining agreement would certainly have supported such a ruling. In short, the Court does not agree with the reasoning that supported Arbitrator Gill's decision but finds ample support in the collective bargaining agreement for the result that was reached; that is, that the narrow issue of the binding effect of the Zack award was the only issue properly to be considered by the arbitrator.[3] The law of this circuit is that an arbitrator's award must be upheld if "the interpretation can in any rational way be derived from the agreement." Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969). Furthermore, "[i]t is not within the province of a reviewing court to agree or to disagree with . . the specific reasoning employed" by the arbitrator. Id. at 1132. Another court of this District has followed Ludwig Honold on facts very similar to those of the instant case. American Can Co. v. United Papermakers and Paperworkers, AFL-CIO, 356 F.Supp. 495 (E.D.Pa. 1973). There, Judge Troutman wrote: "[P]laintiff argues that although the arbitrator is not obliged to state his reasons, once he does so, his decision must be justified on those grounds. Here, the arbitrator rejected the union's argument that the dispute was procedural and that the contract was controlling. Plaintiff seems to argue that the decision may not now [in the court action] be justified on procedural grounds. We disagree with this assertion on the ground that under Ludwig Honold it is the award rather than the conclusion or the specific reasoning employed that a court must review. Since we have determined that the award did not manifestly disregard the terms of the agreement . . . we may not disturb the arbitrator's award." Id., at 499-500 (Emphasis in original, footnote omitted). The reason for such a standard of review is clear. Ideally, arbitration is a device by which expensive and time-consuming litigation is avoided. A standard of review which upholds an arbitrator if there is any basis for his decision in the collective bargaining agreement both discourages litigation and ensures that the agreement will be the primary determinant of the relationship between the parties. In some cases limited court review will produce harsh results. Arbitrator Gill himself observed that there was "quite clearly a contractual wrong done to these Moorestown employees." (Arbitrator's Opinion, p. 10.) If this case were remanded with instructions to decide the submission as interpreted by this Court, it is possible that Arbitrator Gill would find that the collective bargaining agreement does not restrict the arbitrator to the written grievance, that he was therefore permitted to decide the submission as defined by this Court, and that the Moorestown employees should prevail on the merits. Nevertheless, the collective bargaining agreement easily supports the award as rendered. Hence, RCA is entitled to summary judgment in this proceeding. NOTES [1] Arbitrator Thoas Knowlton at one point decided a similar grievance in favor of a downgraded employee. [2] Authority on the point is extremely sparse. See 5 Am.Jur.2d, Arbitration and Award, § 147, n. 6. [3] To repeat, the Court agrees with the arbitrator's decision on the merits insofar as he decided only the "narrow" submission.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266123/	461 F.Supp. 961 (1978) LOCAL NO. 1 (ACA), BROADCAST EMPLOYEES OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, William Bender, Morton Borrow, Walter Jost and Anthony Evasew v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Frank E. Fitzsimmons, General President, Edward Nangle, Vice President, Highway Truck Drivers and Helpers Local 107, Louis J. Bottone, President, Local 107, and John E. Smalley. Civ. A. No. 75-2684. United States District Court, E. D. Pennsylvania. November 8, 1978. As Amended December 14, 1978. 962 963 Harry Lore, Philadelphia, Pa., for plaintiffs. Barry W. Levine, Washington, D. C., John F. Dougherty, Jr., Philadelphia, Pa., for defendants. OPINION AND ORDER EDWARD R. BECKER, District Judge. I. Preliminary Statement In July 1975, Local 1 (ACA), a small local union affiliated with the International Brotherhood of Teamsters (IBT) was ordered by the IBT's General Executive Board (GEB) to be merged into Highway Truck Drivers and Helpers Local 107, a large local union. Under the terms of the merger order, Local 107 was the sole surviving entity. Alleging violation of rights protected under 42 U.S.C. § 1985, 29 U.S.C. § 101 et seq., state law, and the IBT Constitution, Local 1 and its officers brought this action seeking declaratory and injunctive relief against the merger. The first phase of this litigation dealt with plaintiffs' motion for a preliminary injunction. In an earlier opinion, 419 F.Supp. 263 (E.D.Pa.1976), we denied that motion. Plaintiffs' prayer for declaratory and injunctive relief against the merger is now before us on final hearing, though on the same record as in the earlier phase, because the parties have not supplemented it. Since our earlier opinion contains extensive findings of fact and conclusions of law, we may finalize any decision on the declaratory and injunctive issues with only the briefest of discussion. Reaffirming our earlier findings and conclusions, we decide that plaintiffs have not proved that the IBT merger order of July, 1975 violated any rights of plaintiffs protected under 42 U.S.C. § 1985, 29 U.S.C. § 101 et seq., state law, or the IBT constitution. Accordingly, we shall grant to defendants declaratory and injunctive relief, declaring that the merger is valid and lawful, and ordering Local 1 to turn over various union property under its control. The principal purpose of this opinion is to address a claim by plaintiff William Bender, Secretary-Treasurer, Business Agent, and Chief Executive officer of Local 1 for salary for work for Local 1 both prior to and after the merger order. Bender asserts this claim against both Local 107 and the IBT. The salary claim relates mainly to Bender's work for Local 1 from 1972 until the merger order in July, 1975, during which time he was paid virtually no compensation, because of the extremely small size and financial weakness of Local 1. Bender worked full time during that period. While part of his time was spent in servicing the existing membership, most of it was devoted to efforts to broaden Local 1's membership base and increase its members by various organizing campaigns, or in efforts to retain those members obtained in casualty insurance 964 industry organization drives when their Local 1 affiliation was under attack before the NLRB and in the Courts. Local 1's assets during most of the period from 1972-1975 were two thousand dollars or less. In 1974 and again in 1975 Local 1's Executive Board voted Bender a salary covering the period 1972-75, contingent on the local acquiring funds sufficient to pay it. The merger order in July, 1975 extinguished any possibility that Local 1 qua Local 1 would ever come to have sufficient resources to pay Bender any back salary. Local 107 and the IBT have interposed a great number of defenses to the salary claim, most of them relating to procedural irregularities on the part of Local 1's Executive Board, which, in their view, render the resolutions to pay Bender past and future salary void ab initio. Inter alia, defendants assert that the Executive Board's actions were invalid for the following reasons: (1) the Executive Board's failure to enact by-laws and otherwise follow the IBT constitution; (2) the failure of Local 1's general membership to ratify the salary resolutions; (3) the resolutions constituted a breach of the Executive Board members' fiduciary duty under the IBT Constitution; (4) the resolutions violated the Labor-Management Reporting Disclosure Act, 29 U.S.C. § 431(b) and (c) (LMRDA); (5) the resolutions were fraudulent, i. e. made in anticipation of the merger, hence to bind the successor local or the IBT; (6) the "when and if" condition precedent to the salary resolutions has never come to pass because Local 1 went out of existence and therefore never obtained sufficient funds, and because Local 107 does not have sufficient funds; and (7) the IBT Constitution shields the IBT from liability. As will at length appear, we reject every defense except the one, founded upon the IBT Constitution, which absolves the International from liability by virtue of a merger order, and decide that under Pennsylvania law, which we follow on this pendent claim, the contingent salary obligation created by Local 1's Executive Board was valid, and was transferred by virtue of the merger to become a contingent liability of the successor organization, Local 107. Finding that the contingency has been discharged i. e. that Local 107 has funds sufficient to pay the back salary we conclude the pre-merger order salary is an obligation upon Local 107 now due and owing. However, because following the merger of July, 1975, Bender acted purely as a volunteer (he was not hired by successor Local 107), there is no basis for any salary claim for his post-merger services, and that claim will be denied. This opinion constitutes our findings of fact and conclusions of law under Fed.R. Civ.P. 52(a).[1] II. Bender's Salary Claims A. Findings of Fact 1. Plaintiff Bender's work for Local 1 We made extensive findings of fact about Mr. Bender in our earlier opinion. We now ratify and incorporate the factual findings relevant to him from that opinion.[2] By way of brief recapitulation, we note the following. In 1946, Bender became affiliated with the American Communications Association (ACA), a labor organization composed of Local Unions representing employees in the then thriving broadcast industry. Bender is a bright and articulate man with talent for labor organizing. In 1966, in the wake of the mechanization of the broadcast industry and the corresponding decline in the number of workers employed by radio stations, hence of union membership, the ACA and 965 its constituent local unions, including Local 1, became affiliated with the IBT. Following affiliation, Bender worked for a year (1967) directly for the IBT as a General Organizer at an annual salary of $20,000. For the next three years he worked as a paid organizer for the ACA Division of the IBT. In May, 1971, Bender was elected Secretary-Treasurer, and member of the Executive Board of Local 1. Most of Local 1's members were employees of radio stations in New York and Philadelphia. He subsequently assumed the duties of business agent and principal executive officer of the local, which meant he had primary responsibility for servicing the needs of the existing members of the local (handling grievances, negotiating collective bargaining agreements, etc.) and for union organization. The latter was an important duty in view of the large decline in Local 1's membership. Bender took the initiative by seeking to organize in the insurance industry, which was essentially virgin territory for the union movement, as well as in other nonbroadcast industries. As our earlier opinion demonstrates, Bender's efforts were unsuccessful and, because of its small size (40 to 115 members during 1972-74, see 419 F.Supp. at 278) and concomitant inability to support its activities financially, the IBT ultimately, and over the objection of both locals, decided to merge Local 1 into Local 107.[3] During Bender's stewardship of Local 1, he was also involved in IBT politics, becoming a partisan for the return to power of James R. Hoffa. We turn now from recapitulation to the making of new findings germane to the issues before us. From May to December 1971, Local 1 paid Bender a salary of $200 per week. He was the only salaried official of the Local. Bender's salary ceased, however, on January 1, 1972, because of the lack of assets in Local 1's treasury. The relevant financial statement shows that the union began the year 1971 with $8,800 in cash. By December 31, 1971, the balance was $407.40. Local 1 was never again in a financial position to pay Bender (or any other officer) a salary over any continuous period of time. Bender continued to work as Secretary-Treasurer, business agent and principal executive officer for Local 1 during the years 1972, 1973, and 1974, without compensation, supporting himself from savings and from his wife's earnings. His hope during those years was to vastly increase the membership of the local by making a breakthrough in the casualty insurance industry. Bender had already had some success in organizing insurance adjusters. He therefore undertook drives to organize more insurance adjusters, and also greeting card workers, newspaper circulation managers and radio technicians. At one point he obtained signature cards from 1500 radio technicians at NBC and ABC. At another point he made substantial progress in organizing 700 greeting card workers at the Norcross plant in West Chester, Pennsylvania. For various reasons these efforts did not achieve fruition in the form of Local 1 membership. Many hundreds of casualty insurance industry employees were the object of various Bender organizational drives, with certification achieved for various periods of time at several large insurance companies. But Bender's insurance industry initiative was fraught with litigation before the NLRB and the courts, and was ultimately scuttled because of lack of IBT financial support. The greatest increase in Local 1's membership during these years occurred in June, 1975, one month before the IBT ordered Local 1 merged with Local 107, when the membership jumped from 61 to 115 (419 F.Supp. at 278). We find that during the years 1972, 1973, and 1974, and through July, 1975, Bender worked over forty hours a week, five or more days a week, 52 weeks a year, at his union responsibilities. We further find that 100% of his activities were directly on behalf of Local 1. In other words, although 966 his organization of a number of new workers would have indirectly inured to the benefit of the IBT, its Eastern Conference and its appropriate Joint Council through payment of additional per capita sums by Local 1 to those organizations under the IBT charter, Bender was working not for any of those organizations but rather full-time for Local 1. 2. Local 1's Executive Board Its Structure, Function, and Compliance with the IBT Constitution In our earlier opinion, we made certain factual findings which are a necessary point of embarkation for our factual findings herein: Local 1's shortcomings have not been only financial. The local has also suffered from a bifurcation of its internal operations, a tale of two cities, as it were. For, while the local's office is in Philadelphia, most of its members, including Bender, live and work in metropolitan New York. Local 1 has failed to hold monthly membership meetings as required by the IBT Constitution Art. XIV, § 2(a)(1), probably for that reason, and its executive board meetings were held in a strange way: two members would meet in Philadelphia one day and three in New York the next (with Bender). Moreover, an audit report prepared for the IBT showed, inter alia, that Local 1 failed to adopt bylaws, as required by the IBT Constitution, Art. XXII, § 1, and that the local was late in paying per capita sums due the IBT, the Eastern Conference, and the Joint Council, and in filing required trustee reports. These problems did not prevent Bender, a most dedicated man, from servicing the membership, and at no time has there been any complaint by members of Local 1 regarding servicing, negotiation of collective bargaining agreements, or the performance of duties by Bender. On the other hand, the local's viability is at best marginal, and, in view of its financial difficulties, it lacks the capacity effectively to organize its jurisdiction. While we re-affirm these findings (except for amending the number of officers of the Executive Board from five to seven) we also need to supply additional facts which were not material to the legal questions presented in our earlier opinion, but which are material to the question whether Local 1 was in compliance with the IBT Constitution and whether the Executive Board acted within its powers in voting Bender a salary. At the time Local 1 of the ACA sought to become IBT Local 1, seven members of Local 1 ACA signed a charter application. Those applicants were Bender, Morton Borrow, Charles F. McCracken, Sam Van Fossen, Frank Unterberger, Walter Jost, and Gordon Greenfield. In the application they pledged themselves to be governed by the IBT Constitution and all amendments thereto. Two weeks later, on November 15, 1966, Local 1 received its Charter from the IBT, with the above seven persons listed as Charter Members. The IBT Charter they were granted on behalf of Local 1 provided: This Local Union shall be empowered to adopt Bylaws, negotiate contracts covering wages, hours, and conditions of employment in accordance with the laws, usages and requirements of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and in accordance with the best interests of the labor movements. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America grants this charter with the understanding that should the parties receiving it, or their successors, fail to comply with the provisions herein set forth, or with the Constitution, laws, usages and requirements of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, this charter will be revoked and they shall be required to turn over all books, documents, property and funds to the General President or his representative, or to the General Secretary-Treasurer of the International Union, and should Local Union No. 1 secede, disaffiliate, or dissolve, or be suspended, or forfeit its 967 charter, then all books, documents, property and funds shall likewise be turned over to the General President, or his representative, or to the General Secretary-Treasurer in accordance with the applicable provisions of the International Constitution. The record is silent on the internal structure of Local 1 prior to 1971. In May, 1971, however, in the same general membership election in which Bender was elected Secretary-Treasurer, six other members were elected to the Executive Board. Charter members Borrow, Jost and McCracken were elected President, Vice-President and Recording Secretary, respectively; charter members Greenfield and Van Fossen were elected Trustees and non-charter member Myers was elected the third Trustee. Each of the seven positions was for a term of three years, until May, 1974. The provision of the IBT Constitution governing the composition of Local 1's Executive Board reads as follows: ARTICLE XXII § 2 The officers of the Local Union shall consist of a President, Vice-President, Recording Secretary, Secretary-Treasurer and three (3) trustees. These officers shall constitute the Executive Board of the organization. . . . Although in our earlier opinion we found Local 1's Executive Board to be composed of five members, we now amend that finding as follows: from May, 1971 to May, 1974, the officers of Local 1's Executive Board, elected by the general membership, were the seven named above. Following a general membership election in May, 1974, at least three, and possibly four (i. e. Bender, Morrow and Jost, with one being unidentified) were re-elected. Thus, notwithstanding defendants' intimation to the contrary, not only was Article XXII § 2 complied with, but the 3 year interval between elections required by Article XXII § 3 was complied with as well. We also find that the bifurcated branches of the Executive Board referred to in our earlier opinion regularly met, though not within two days of each other, (as earlier found) but within approximately one week to ten days of each other, with Bender and two other members meeting in New York and Bender and four other members meeting in Philadelphia. The duties of the individual members of the Executive Board, and of the Executive Board of a local itself, are specified in a number of articles of the IBT Constitution. One provision relevant to the IBT and Local 107's defense is Article VI § 4(b), which provides: Local Unions shall not adopt bylaws or take any action which would impair their ability to meet their financial obligations to the International Union and its subordinate bodies or interfere with the discharge of their obligations to their members in the negotiation and administration of collective bargaining agreements and in conducting the affairs of the Local Union as a solvent organization. Defendants have contended that this section was violated and that the action taken to confer a salary upon Bender was ultra vires. We find, however, that neither the Executive Board nor any of its officers between 1971 and July 1975 "took any action" which impaired their ability to meet any obligations to the ACA or IBT or any other organization, nor that was in derogation of their fiduciary duty to Local 1's membership. The financial statements for these years show that the $9,000 cash balance present on December 31, 1969, was reduced to $8,700 a year later, and then dropped dramatically to $400 by the end of 1971 (owing largely to Bender's salary between May and December). The balance increased to $970 in December, 1972 but fell further to $200 by the end of 1974. While these are meager amounts by union standards, at no time did Local 1 go "into the red" or refuse to honor any of its financial obligations other than for Bender's salary. In most of these years it collected over $4,000 in dues, made per capita payments to the IBT and paid the sundry daily expenses associated with running a local union. While it is true, as 968 we found in our earlier opinion, 419 F.Supp. at 280, (quoted above on p. 966), that an IBT audit showed Local 1 to be late with per capita payments, it is important to add that the "lateness" and the international auditor's injunction to Local 1 to pay earlier seem technical in the extreme: the November payment, due December 20, was paid on that date; the December payment was one day late, the January payment two days late, the February payment three days early, the March payment ten days early, and the April payment two days late. These were the data on which the international auditor's verdict of tardiness was based. In sum, we find that the two Executive Boards of Local 1 (i. e. the May '71 May '74 Board and the May '74 July '75 Board) carried out their duties between 1971 and July, 1975 in a responsible manner, managing their limited finances so as to meet their obligations in a timely fashion. The IBT audit in the summer of 1972 supports this finding. This in no way contravenes our earlier finding that the local's financial viability was "marginal," for throughout the years 1972-75 Local 1 clearly did not have any money to pay salaries to its officers or to engage in any organizing campaigns. Article VI § 4(b) was, in our view, substantially if not totally complied with. The second relevant portion of the Constitution (relied upon by defendants) is Article XIV § 2(a)(1), which provides: General membership meetings shall be held monthly at such place and time as shall be designated by the Local Union Executive Board subject to disapproval by the General Executive Board. The General Executive Board shall establish such conditions relative to the holding of meetings as in its judgment it deems advisable. Membership meetings may be suspended during any three (3) months between June and October by action of the membership at a meeting after reasonable notice of the intention to vote upon such question. We find that this provision was not complied with during the period 1971 July 1975. We credit Bender's testimony that, on the occasion membership meetings were called, the response was not good, and we also find there were especial difficulties in conducting membership meetings because of the geographic dispersion of Local 1's membership, i. e. its members resided in both the Philadelphia and New York City areas. Nevertheless, the IBT Constitution does not excuse the lack of monthly meetings for these reasons, and the simple fact is there was not compliance with this provision. The third Constitutional provision relevant to the IBT and Local 107's defenses is Article XXII § 1, mandating local union by-laws: Section 1. Each Local Union shall adopt its own separate Bylaws which must comply, and may not conflict, with the provisions of the International Constitution. Said Bylaws shall designate as the principal executive officer the President, the Secretary-Treasurer or the Recording Secretary. This provision was apparently one of the Constitutional changes enacted in May, 1971. In the IBT Audit dated June 15, 1972, the International Auditor called attention to the fact that Local 1 was not in compliance with this provision. We find that at no time during the period May, 1971 to July, 1975 did Local 1 have by-laws in effect. We credit Bender's testimony that he was aware of the requirement, that he started to draft a set on several occasions, but that neither he nor any other members of the Executive Board gathered sufficient momentum to draft a set of by-laws. Turning the coin over, however, we find that the IBT was clearly aware of the fact that Local 1 was in non-compliance with this provision as of June 15, 1972 (the date of the International Auditor's report), but that at no time between then and July, 1975 made any further request or demand that Local 1 enact by-laws. Nor did the IBT in any way indicate to Local 1 that the absence of by-laws was of any consequence: up until July, 1975, the IBT accepted regular monthly per capita payments from the 969 Executive Board on behalf of the local, accepted and approved regular trustees reports from the Executive Board of the Local, and in short treated Local 1's Executive Board as a bona fide regularly-constituted organization that was empowered to take actions on behalf of the membership of Local 1. Article XXV defines the Executive Board of the local as follows: Unless specifically provided otherwise, wherever this Constitution provides for action by the Executive Board of the International Union or any subordinate body, the words "Executive Board" shall mean "a majority of the members of the Executive Board present and voting at a duly called meeting." We find that this provision was complied with on the two occasions material to Bender's salary claim the March, 1974 resolution setting his salary for 1972-74, and the June, 1975 resolution setting his salary for 1975. On both occasions, the full Executive Board complement voted. The fact that they did so in two "sessions" as it were, with a group of three voting in New York and a group of four in Philadelphia does not alter this fact of compliance, since the two groups voted on identical salary resolutions, and since the resolutions were taken within ten days of each other. See p. 969 infra. The foregoing are the only provisions of the IBT Constitution which the parties have pointed out to us, or which we have been able to locate in an independent review of the IBT Constitution, as relevant to whether the Executive Board of Local 1 had the authority to vote Bender a salary. We think it important to note what the IBT Constitution does not say. First, there is no provision describing which local union officials should be compensated, or in what amount. Second, there is no provision that spells out the authority of the Executive Board of the IBT's local unions, or describes what their powers are regarding, inter alia, voting salary for local officials. Nor are there any provisions requiring membership ratification of any actions taken by a local executive board. Third, there is no provision stating the consequence for failure of a local to adopt by-laws; in other words, although Article XXII § 1 makes by-laws mandatory ("shall adopt"), it is nowhere stated that in the absence of by-laws all actions by the executive board of a local are void ab initio, or that any other consequences flow from not having by-laws. Whether we should construe this interpretation into Article XXII § 1 is a legal matter, which we leave for the legal discussion to follow. In this fact-finding section, we simply find the IBT Constitution to be silent on the question of what consequences follow from a failure of a local Executive Board to adopt by-laws. 3. The Executive Board Salary Resolutions at Issue As stated previously, Bender worked without compensation for Local 1 after January 1, 1972. On March 4, 1974, four members of the Executive Board of Local 1 met in Philadelphia (President Borrow, Vice President Jost, Secretary-Treasurer Bender and Trustee Myers). Bender was listed in the minutes as "not voting." Trustee Sam Van Fossen was listed in the minutes as "absent but in favor." The first order of business was to pass a resolution concerning Hoffa, which does not appear in the minutes of record. However, at a three-man Executive Board meeting in New York a week before, the following resolution had been adopted: "The Executive Board authorizes the Union's officers to join on behalf of the Union in a suit to be instituted by Mr. James R. Hoffa to challenge the validity of the conditions attached to the commutation of his sentence to permit him to participate in union activity." We assume the absent March 4 resolution by the Philadelphia branch of the Executive Board was to the same, if not identical effect. The suit referred to was Hoffa v. Saxbe, 378 F.Supp. 1221, filed March 13, 1974, in the United States District Court for the District of Columbia. Local 1 joined as a plaintiff in this suit, which challenged the restrictions on Hoffa's union activities which were imposed as a condition of the commutation of his sentence. 970 The second order of business at the March 4, 1974 Philadelphia Executive Board meeting was to vote on the following resolution: "Motion that Brother Bender be paid back to Jan. 1972 on the basis of $10,000 per year (this shall be a liability of the Local and not of any individual member or Executive Board member) when and if the Local has the funds and $12,500 for the year 1974." The motion was seconded and passed unanimously. Both of the above motions are recorded in the minutes of this meeting, taken by Bender. Ten days later, the three-man New York branch of the Executive Board met. The three Executive Board members adopted an identical resolution concerning Bender's salary. Bender apparently voted this time, and the resolution passed unanimously. On June 17, 1975, a month prior to the GEB's order of merger, four members of the Executive Board met in Philadelphia and passed another resolution pertaining to Bender's salary. On this occasion, three of the members were the same as a year before (Bender, Borrow, and Jost), but Myers had been replaced in the intervening May, 1974 elections by Anthony Evasew. The vote was unanimous "to approve $15,000 a year for 1975 for salary for W. Bender for services." Bender apparently voted on this occasion. No contingency was included relating to the ability of Local 1 to pay, nor was it specified that this was to be an obligation of the Local only, and not its members. The minutes of that meeting reflect that a number of other matters were taken up, including filling a vacancy on the Executive Board, and obtaining IBT approval for an organizing campaign in the insurance industry. The minutes also apparently show that a resolution was unanimously adopted that the "local officers take any steps to prevent merger of Local 1 with any other local . . . or revocation of charter," but the minutes of this motion have been crossed out without explanation (the record of its unanimous approval was left intact). Six days later, on June 22, 1975, the "New York" branch of the bifurcated Executive Board, consisting of Trustees Weed and Vitale, and Secretary-Treasurer Bender, met, and passed resolutions concerning filling a vacancy on the Executive Board, "taking any steps necessary to prevent involuntary merger of Local 1 . . . or revocation of the charter," arranging details of the membership drive at one of the insurance companies, and voting Bender "15,000 for the year 1975 when and if Local 1 ever has money." Each resolution carried unanimously. The above salary resolutions constitute the basis for Bender's claim against defendant Local 107 and defendant IBT in the present suit: $10,000 for the years 1972 and 1973, $12,500 for 1974, and $15,000 for 1975. The four resolutions contain certain ambiguities on their face. The March 4, 1974 and March 14, 1974 resolutions state that the 1972 and 1973 salaries are expressly conditioned on Local 1 obtaining sufficient funds to pay the amounts. Both resolutions are silent as to whether the 1974 salary obligation is similarly conditional. We resolve this ambiguity by finding the bifurcated Executive Board, voting on March 4, 1974 and March 14, 1974, intended that the 1974 salary was to be conditional on the local obtaining sufficient funds. We base this finding on our inference from the entire record: the Executive Board of Local 1 was scrupulous, during the entire period 1971-75, to conserve the slender resources of Local 1, and not to take any actions in violation of its fiduciary duty as officers of the local. See pp. 967-968 supra. To have approved the 1974 resolutions without the contingency would have been in gross disregard of that fiduciary responsibility. We infer that the Executive Board would not have done so, and therefore resolve the ambiguity in favor of implying the contingency provision into the votes on the 1974 salary. For an identical reason we resolve the ambiguity created by the differences between the June 17, 1975 and the June 22, 1975 resolutions pertaining to Bender's 1975 salary (the latter containing the contingency, the former not) in favor of implying the contingency into the June 17, 1975 resolution. 971 Additionally, we find that the Executive Board meeting procedure utilized on the above occasions, whereby the Board met in bifurcated sessions of respectively four and three members each, constructively complied with Article XXV of the IBT Constitution, (see p. 969 supra). The purpose of that provision is obviously to ensure that not fewer than four of the seven members of the Executive Board would take actions binding the local. The bifurcated meeting structure did not contravene this purpose, since at the two meetings, held within a week or ten days of each other, the full complement of Executive Board members had the opportunity to vote on the identical resolutions. We find indeed it was conceded by all that Local 1 never had enough money to pay Bender a full salary at any time between January, 1972, and July, 1975, the date of the GEB merger order. However, at some point in 1975 (whether before or after July is not clear) Bender received $2,019 in salary. And in 1977, Bender used $5,500 in escrowed union dues (i. e., checkoff dues which an insurance company had paid into escrow during the pendency of the instant lawsuit) to pay himself a salary of $4,000, the rest being split between attorney and court reporter fees. 4. The Decision to Merge Local 1 and How it was Implemented The reasons for the decision by the General Executive Board of the IBT to merge Local 1 with another local, and the method by which this was implemented, were discussed at great length in our earlier opinion. We only re-enter that terrain for purposes relevant to Bender's salary claim. We understand there to be two important factual issues involved: (1) when Bender and the Executive Board of the local first learned of the decision that Local 1 was to be merged with another local; and (2) whether the IBT, either before or after it issued its merger order, made any attempt to ascertain the existence of the salary obligation voted to Bender. To answer the first question, we must begin considerably before the actual merger order of July, 1975. We earlier found (419 F.Supp. at 281) that the IBT had voted to merge Local 1 into another local in July, 1973, owing to Local 1's poor financial condition, et alia, but that "implementation of the decision to merge Local 1 traveled a more troubled course." Id. at 282. The ensuing attempts to find a suitable merger partner in other words, an accommodating IBT local willing to take over the responsibilities of servicing Local 1's membership have been documented in detail in our earlier opinion, and need not be recounted here. On May 2, 1974, the IBT voted to merge Local 1 into Local 115; both locals opposed the decision, Local 1, inter alia, by filing suit in Pennsylvania state court in June, 1974. In July, 1975, the GEB substituted Local 107 for Local 115 as a merger partner for Local 1. It is implementation of that merger order that has been in litigation before us since. June 18, 1974, is the latest possible date on which either Bender or the Executive Board of Local 1 could have known that the IBT intended to merge Local 1 into another local, since that is the date of filing suit to halt the merger of Local 1 and Local 115. We credit Bender's testimony that he first learned of the possibility of a merger from James Hoffa in April, 1974, and that he first learned that the IBT actually intended to merge Local 1 in an official communication from the IBT in May, 1974. There was no evidence that any other officer of Local 1 learned of the IBT's intention at any earlier date than Bender. Hence we find that the Executive Board of Local 1 first had unofficial notice of a prospective merger in April, 1974, (which would have been two to six weeks after the March 4 and March 14th salary resolutions), and first received official notification in May, 1974, which would have been six to ten weeks after the salary resolutions. Our second factual finding on this subject implicates the manner in which the IBT ordered the merger. We earlier found that "No notice was given to the affected locals, (Locals 1 and 115), but none is required by 972 the IBT's Constitution and Bylaws." 419 F.Supp. at 282 n. 35. Between July, 1973, and July, 1975, while the IBT was casting around for various merger partners, the entire decision-making occurred at the level of the General Executive Board of the IBT. Neither Local 1 nor any of the proposed partners (Locals 10, 111, and 115) nor the partner with whom merger was eventually ordered Local 107 had any significant voice in the decision.[4] We next find that at no time before it ordered the merger of Local 1 and another local, and specifically at no time before it ordered the merger of Local 1 and Local 107, did the IBT or its GEB or anyone on the IBT hierarchy make any inquiry of Bender or the Executive Board of Local 1 concerning the existence of financial obligations undertaken or financial commitments made by that local Executive Board on behalf of the membership of Local 1, including, of course, the Bender salary resolutions. As to the sequence of events surrounding the actual merger decision between Local 1 and Local 107, we re-affirm our earlier factual finding: On July 8, 1975, the GEB ordered that the previous decision merging Local 1 with Local 115 be amended to substitute Local 107 for Local 115, and Fitzsimmons wrote to Bender on July 16, 1975, notifying him of this decision. Local 107 is a large Philadelphia based local, the vast bulk of whose members are truck drivers. Local 107's recent history has been marked by internal strife, its fabric frequently tattered by violence. On July 21, 1975, Messrs. Cotter and Barlow, as representatives of the IBT, appeared in the office of Local 1 and demanded that Bender immediately turn over the local's charter, books, records, seal, bank accounts, membership lists, collective bargaining agreements, minutes, etc., and handed him two letters dated July 16, 1975, one from Murray W. Miller and the other from Frank E. Fitzsimmons. Bender continued to protest the merger. Local 107, which had a complete executive board, made no provision to include Bender thereon. On September 9, 1975, Louis J. Bottone, President of Local 107, sent out formal notification to members of Local 1 informing those who were given notice that their membership obligations would thenceforth accrue to Local 107, `as the successor to Local 1.' This notice was followed by a certified letter on September 17, 1975, from Bottone to Local 1's members containing dues checkoff forms, personal data sheets and a membership card in defendant Local 107 with the Local 1 member's name inscribed on it. These notices were prepared by the IBT for use by Bottone. Shortly thereafter the present lawsuit was filed. We credit Bender's testimony that, upon receipt of the above notice from the IBT, he raised a number of questions with Louis Bottone, President of Local 107, concerning his continued employment and back salary. Bottone told him that he would no longer be employed by the new merged Local 107. Bottone also disclaimed responsibility for any back salary to Bender. Bender did not testify when this conversation took place. It would have been logical for such a conversation to have occurred immediately following the July 21, 1975 visit, and in the absence of any evidence from Bender that it occurred at a later date, we infer this was the date on which the Bender-Bottone conversation occurred. 5. The LM-3 Forms The "Labor Organization Annual Report, Form LM-3" for Local 1 during the calendar years 1975 and 1976 were put into evidence. 973 These forms implement the disclosure provision of 29 U.S.C. § 431(b) for unions with less than $30,000 in gross receipts for the year. The regulations for completing the LM-3 forms are contained in 29 C.F.R. § 403.4. We find that the LM-3 form for Local 1 for the calendar year 1975 was signed by Mort Borrow as President of the Local and William Bender as Secretary-Treasurer, on May 18, 1976; that it shows receipts for Local 1 during the year of $9,114, and payouts during this year of $9,219, of which $2,019 went to Bender as salary. We find that items 29-32 inquire of any debts owed, and that these spaces have been left blank in the respective categories of "Accounts and bills payable," "loans and notes payable," "mortgages payable," and "other debts," respectively. In category 33 labeled "Total debts," the word "none" has been written. Nowhere on the form is there mention of any back salary owed to Bender. The LM-3 form for Local 1 for the calendar year 1976 shows cash receipts of $3,552, payouts of $2,716 (no salary payments), and $940 in assets at the end of the period. No debts of any kind are listed in categories 29-33, and the word "none" is written under the category "total debts." A copy of the 1975 LM-3 form is attached as an appendix to this opinion. We credit Bender's testimony that he discussed the possibility of including his salary claim on the LM-3 form with the Local's accountant, and that the accountant advised him to omit reference to it because the salary was only to become due "when and if" the Local had the funds to pay it. 6. The Financial Condition of Local 107 Local 1's merger partner, as already stated, is a large Philadelphia local with approximately 10,000 members, most of whom drive trucks. Its most recent financial reports of record are those for the period ending February, 1978. They show the following current asset position: ASSETS Cash in Bank $ 51,387.76 Cash in savings account 546.55 Savings bond 520.00 Land 90,798.14 Building 89,206.91 Furniture and fixtures 49,871.23 ___________ Total Assets 282,330.59 LIABILITIES Loan balance to International 90,000.00 Accounts payable 78,531.64 _________ Total Liabilities 168,531.64 Total Net Assets $ 113,798.95 Reviewing the last two months for which evidence was submitted, January and February, 1978, we find that in January, Local 107 received $121,584 in cash, and paid out $88,213, which amounted to a net cash increase for the month of over $33,300, and that for February cash received was $87,403 and payouts were $101,248, for a cash decrease of $13,845. The largest items of expense for each month (after the per capita tax paid to the International) were salaries for the officers and business agents of Local 107. We credit the testimony of Kenneth Moore, Secretary-Treasurer of Local 107, that there are ten full-time officers and business agents currently on the payroll, each earning approximately $35,000 per year. This converts into a figure of approximately $27,500 per month for all ten. B. Discussion 1. Introduction In their various papers, defendants Local 107 and IBT interposed ten defenses which they believe shield them from assuming liability for Bender's salary claims. Those defenses are: (a) This Court is without jurisdiction to adjudicate the matter. (b) All actions taken by the Executive Board of Local 1 are invalid because of its failure to enact bylaws or otherwise follow the IBT constitution; the salary resolutions were therefore unauthorized and void ab initio. 974 (c) The membership of Local 1 did not ratify the Executive Board's salary resolutions. (d) The salary resolutions were violative of the local Executive Board's fiduciary duty under Article VI § 4(b) of the IBT Constitution. (e) The salary resolutions were fraudulent because they were made at the time the local Executive Board knew a merger was imminentin other words, they were a mere artifice to bind another organization after the merger. (f) The members of the Executive Board thought James Hoffa, not Local 1, would pay Bender's back salary. (g) No claim of Bender's for salary was included in the LM-3 form submitted to the Labor Department. (h) Bender's salary claim had a condition precedent that Local 1 had the ability to pay; this condition precedent never came to pass because Local 1 was merged into Local 107 and therefore ceased to exist. (i) Defendant 107 did not expressly assume responsibility for Bender's salary claim. (j) The IBT Constitution shields the IBT from any liability flowing from a merger unless the IBT has expressly assumed such liability; the IBT did not expressly assume responsibility for Bender's salary claim. At trial, there was added the defense that the "when and if" condition has not been met because Local 107 does not have sufficient funds to pay Bender's salary. Aside from the first defense, which goes to our power to hear the claim at all, the remaining ten may be divided into two categories. First are those that address the issue whether the Executive Board of Local 1 created a bona fide obligation by its salary resolutions, binding on Local 1 as an organization. Put differently, if Bender had sought a declaratory judgment in a suit against Local 1 at some point prior to the merger, would we have held that a bona fide salary obligation had been created by the Executive Board resolutions? The second group of defenses addresses the issue whether, assuming arguendo a valid obligation was created between Bender and Local 1, that obligation can legally be binding on either Local 107 or the IBT. We think that parsing out these analytically distinct questions is helpful in deciding the validity of Bender's claims. It appears to us that defenses (b)-(g) are directed toward the first issue, and the remainder toward the second. (Defense (g) logically impacts upon both issues). We deal with the defenses seriatim. 2. Jurisdiction Bender has alleged jurisdiction of his salary claims both under 29 U.S.C. § 185 and under the doctrine of pendent jurisdiction. Defendants have stoutly maintained we do not have jurisdiction over Bender's salary claim under 29 U.S.C. § 185 because that statute, which provides for federal jurisdiction over contracts between employers and labor organizations, or between labor organizations themselves, does not govern a contract of employment executed between a local union officer and the local union. They have just as stoutly asserted we do not have pendent jurisdiction, but have cited no authority to support the assertion. We made a ruling during trial that we would exercise pendent jurisdiction over Bender's salary claim without reaching the question of federal question jurisdiction. We now re-affirm that ruling. Bender's entire complaint contains a number of counts, most of which are founded on 29 U.S.C. § 185, and virtually all of which center around the reasons the IBT ordered the merger of Local 1 into another local. Bender's salary claim, Count V, is intimately tied to the whole merger decision since it was the financially weak condition of Local 1 which led to the merger decision (see 419 F.Supp. at 285) and which also led Local 1's Executive Board to make a salary commitment that was contingent upon the local obtaining funds it did not then possess. The merger decision, the subject of all counts of the complaint, is also intimately 975 connected with the salary claim since the merger decision extinguished forever the possibility that Local 1 qua Local 1 could obtain funds to pay Bender's salary. Indeed, we have rarely encountered a case where the federal and state claims more nearly "derive[d] from a common nucleus of operative fact." than does the present case. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Exercising pendent jurisdiction over the salary claim identifies that state, not federal, law is to be employed; it does not identify which state law is appropriate. In the case at bar, a thorny choice of law question might conceivably be present inasmuch as: 1) plaintiff is a New York resident; 2) the "contracts" at issue were "made" in both Pennsylvania and New York, where the bifurcated Executive Board voted the resolutions; 3) the subject matter of the contracts Bender's work for Local 1 involved servicing existing members of Local 1 in New York, Pennsylvania and New Jersey, and organizing new members of the local in those states; 4) one defendant (Local 107) has its principal place of business in Pennsylvania, and most of its members reside there; and 5) the other defendant (the IBT) has its principal place of business in Washington, D.C., with its members distributed throughout all fifty states. However, since: (1) Pennsylvania is the only state whose law the parties have invoked;[5] (2) Pennsylvania certainly has a significant relationship to this matter; and (3) none of the parties has suggested there is any variation among the laws of the possibly applicable states, we will apply Pennsylvania substantive law to the legal issues. 3. Are the Executive Board's Salary Resolutions Valid, and Binding on the Defendants? (a) The failure to enact bylaws The defendants' argument concerning bylaws has been stated as follows: Article XXII, Section I of the IBT Constitution requires local unions to adopt bylaws to govern their conduct. Local 1 never did so . . . The Executive Board action [of Local 1] in the absence of bylaws governing the procedures to be followed for creating salary obligations and disbursing unions funds . . . contravened Article XXII, Section 1 of the IBT Constitution. First, defendants mistakenly believe that bylaws were necessary under the IBT Constitution in order to authorize local Executive Boards to determine compensation for local officers. We might agree with defendants that bylaws were necessary in order to authorize a salary resolution if the IBT Constitution stated that procedures for determining officer compensation must be included in bylaws, or if it said that in the absence of such a bylaw procedure all actions by the local Executive Board concerning officer compensation would be unauthorized and void ab initio. But the IBT Constitution contains no such provisions. Rather, the Constitution contains simply the naked mandatory language that locals "shall adopt" bylaws. The Constitution is wholly silent on what matters should and should not be included in those bylaws. Hence, Local 1 could have fully complied with the Constitution by enacting bylaws which would have satisfied defendant's instant objection and yet not included any officers' salary provisions as part of those bylaws. Nor does the IBT Constitution state that without bylaws the local Executive Boards are without authority to act on certain matters. In sum, we cannot possibly conclude, as defendants ask us to, that IBT Constitutional provision Article XXII § 1 requires us to declare void ab initio an Executive Board action concerning officer compensation taken in the absence of a bylaw provision for the IBT Constitution does not specify that such a provision would be appropriate or necessary to local bylaws, and does not, in any event, permit the reading that such a bylaw provision is the only possible authority 976 for such an Executive Board action. For identical reasons, we cannot conclude that 29 U.S.C. § 431(a) which contains a by-law requirement similar to the IBT Constitution dictates declaring the instant salary resolutions void ab initio. Second, defendants are mistaken in supposing that the law generally requires bylaw authorization for salary compensation. In our view, officer salary compensation is part of the inherent authority of the Executive Board, and does not depend on the presence or absence of a bylaw for its legality. For example, when we examine a close analogy to our situation the voting of officer compensation by the Board of Directors of a corporation we find, according to Ballantine, that "[i]t is ordinarily within the power of the directors to fix the compensation of officers, executives and employees appointed by them." Ballantine Corporations 190 (1946). We read this to mean it is within the Board of Directors' inherent authority to fix such compensation, i. e. the authority is not dependent on the presence of bylaws. Similarly, Pennsylvania corporation law provides that "[u]nless the articles or by-laws provide otherwise, the board of directors shall elect and fix the compensation of . . . officers . . .," including president, secretary, treasurer, et al. 15 Purdons § 1406 (1977 Supp.) (emphasis supplied). As we read this statute, it in effect presumes that boards of directors have inherent authority to fix the compensation of executive officers. Particular bylaws are necessary only to rebut that presumption, by placing authority elsewhere. In this claim to which Pennsylvania law is being applied, we predict that a Pennsylvania State Court would employ this statutory provision, which by its terms applies only to corporations, (labor unions being of course unincorporated associations) if it had before it our claim, because of the fundamental nature of the principle involved, as illustrated by Ballantine. Third, we conclude that defendant IBT has waived any objection to the failure of Local 1 to enact bylaws, or is estopped from setting up this defense in an effort to deny the validity of the salary resolutions. As we found in the fact-finding section, the International was aware of Local 1's failure to enact bylaws from at least June 15, 1972 (the date of an IBT audit of Local 1) until the merger order in July, 1975. During those three years the IBT apparently never indicated that any actions by the Local 1 Executive Board were void ab initio simply because there were no bylaws. The International never claimed that members of the Local 1 Executive Board could not negotiate contracts for union members with employers, although no local bylaw provision granted such authority, and many such contracts were negotiated. The International never claimed members of the Local 1 Executive Board could not represent union members at grievance procedures, despite the absence of bylaws authorizing this. The International never claimed the Executive Board of Local 1 was without authority to collect per capita dues from union members and send those dues to the International in fact, during those years many thousands of dollars were disbursed by the Executive Board of Local 1 to the International's treasury, and each of these monthly disbursals should, by the logic of defendants' position, be declared void ab initio because no local bylaw prescribed the procedure. In short, for three years, the International treated Local 1's Executive Board as a duly-constituted body possessing the full authority of every other Executive Board of every other IBT local. Never once during these years was any further demand made on Local 1 to enact bylaws, or any statement made of which we are aware that the failure to adopt bylaws would lead to any disciplinary sanctions under the IBT Constitution (see Article VI § 5(a).) We think the above constitutes a waiver or estoppel by the International of the bylaw defense, (although we do not believe defendant Local 107 has waived or is estopped from asserting this defense). For the foregoing reasons, we reject defendants' claim that the failure to enact 977 bylaws makes the salary resolutions of Local 1's Executive Board null and void.[6] (b) Lack of membership ratification The reasons for which we rejected the bylaw defense compel our rejection of the defense of lack of membership ratification: a) the IBT Constitution does not require membership ratification of this type of executive board action, or declare that in the absence of membership ratification a salary resolution by the executive board is void ab initio; b) membership ratification does not appear to be customary among other IBT locals for officer compensation voted by their respective executive boards (although evidence on this point is scanty), hence Local 1's board followed the normal, customary and usual practice in not seeking ratification; and c) the citations to Ballantine and 15 Purdons § 1406 above demonstrate that membership ratification is not a usual legal requirement when a Board of Directors (and by analogy an Executive Board) votes on officer compensation. To the above we add one additional factor. The purpose of membership ratification would have been to protect the members of Local 1 from fraudulent or irregular conduct on the part of officers and Executive Board members of Local 1. Yet the uncontradicted and overwhelming evidence in this case is that plaintiff Bender enjoyed enormous support from virtually the entire membership of Local 1 before, during, and after the salary resolutions.[7] There is no doubt in our minds that, had the salary resolutions been submitted to the members of Local 1 in March, 1974 or June, 1975 (when the resolutions at issue were passed by the Executive Board) they would have been ratified, perhaps unanimously. Given this ambience of support for Bender by Local 1 membership and given the purpose ratification serves, we do not see how defendants can rely on a failure of ratification to defeat the salary resolutions.[8] (c) Violation of fiduciary duty Of all the defenses, this one seems to us the least meritorious. Indeed, we cannot conceive of how defendants can seriously argue that the salary resolutions violated Local 1 Executive Board's fiduciary duty as expressed in the IBT Constitution Article VI § 4(b). The salary resolutions were contingent on Local 1 obtaining sufficient funds precisely because Local 1 did not then have the funds. Any resolutions other than the contingent ones that were in fact adopted would have been in violation of the Constitutionally-imposed fiduciary duty that the local union not take any action that interferes with its conducting its affairs "as a solvent organization." Nor can we find any violation of 29 U.S.C. § 501(a), which contains a provision virtually identical to the IBT Constitutional provision. (d) Knowledge of the merger; The Salary Resolutions As a Sham Defendants argue that, upon learning of the merger, the Executive Board and Bender contrived the salary vote, hoping it would bind the successor to Local 1; hence the resolutions are nothing but a sham. Part of this argument is refuted by the facts. We earlier found that, while the 978 first salary resolutions were adopted in March, 1974, Bender and the Executive Board did not learn of a possible merger until April, 1974, and that they first officially learned of the IBT's intention to merge Local 1 into another local in May, 1974. It is the latter date which must govern for our purposes, since rumors (even when coming from one as knowledgeable about IBT affairs as ex-official James Hoffa) are not legally sufficient to put the Local 1 Executive Board on notice of a merger. Indeed, defendants offered no evidence that the Executive Board of Local 1 learned of the merger plan before May, 1974. Therefore, the March 1974 salary resolutions, which applied to salary between January 1, 1972, and the end of 1974, having been adopted two months before the Executive Board knew of the merger plan, is not subject to this defense. Defendants' argument can only apply to the salary resolutions, voted in June, 1975, governing the salary from the beginning of that year on. The June, 1975 resolutions were made thirteen months after Local 1 learned the IBT was trying to merge it with another local, and a month before Local 1 received the actual order to merge with Local 107. These circumstances raise the possibility, of course, that the June, 1975 salary resolutions were not bona fide. But possibility alone is not sufficient. Defendants must demonstrate that Bender and the Executive Board colluded to perpetrate a fraud on Local 1's successors. The record is simply barren of any evidence of collusive intent. The 1975 salary resolution is as customary in terms of compensation as is the 1974 resolution. There is no contention that Bender did not work with the greatest diligence to earn the right to compensation from the beginning of 1975 on; and the amount is only $2,500 more than the salary voted for 1974 ($15,000 versus $12,500), an amount that seems eminently reasonable as a combined raise and inflation increment. In short, we take the 1974 resolution as bona fide since the temporal sequence thereof precludes even the possibility of collusion; and, using that resolution as a standard, the 1975 resolution seems reasonable and wholly regular in comparison. (e) The Alleged Contingency of Hoffa's Return to Power The argument that the salary resolutions were a sham is further advanced by defendants' contention that the Executive Board never entertained any realistic possibility Local 1 would be able to pay Bender the salaries owed, but counted, if not upon a merger, then upon Jimmy Hoffa's returning to power within the IBT and bestowing on Local 1's treasury money sufficient to meet the salary obligation as a reward for Local 1 joining the suit of Hoffa v. Saxbe, 378 F.Supp. 1221 (D.D.C.1974), p. 969 supra. We do not find this argument persuasive. In the first place, defendants have sought to establish this point only by virtue of the deposition of one of the Executive Board members, Anthony Evasew. Leaving aside the hearsay problems of relying on this evidence, we note that six executive board members voted on the salary resolutions, with the seventh member, Bender, abstaining. To show that one member of the Board had a particular idea of how the funds were to be obtained tells us nothing about any of the other members of the Executive Board. Hence, defendants have adduced an insufficient amount of data by which to impeach the salary resolutions. In the second place, contrary to what defendants would have us suppose, we think the Executive Board could have entertained another possibility for Local 1 obtaining the funds to pay Bender a salary as dues from the results of Bender's organizing drives. We earlier found, 419 F.Supp. at 280 n. 32, that Local 1 retained approximately $6.00 per month from every member. At that rate, Local 1 would have had to increase its membership by 1,666 to generate an extra $10,000 per year, the lowest amount of Bender's salary for these years, and increase 979 its membership by 2,500 to achieve an extra $15,000, the highest salary at issue. While these figures may seem "unrealistic" in relation to Local 1's actual membership during these years between 43 and 115 members they are not unrealistic when compared with the scope of Bender's organizing drives. His attempts, which at several times verged on major breakthroughs in union organizing, involved thousands of workers in the insurance industry (and many in the greeting card industry). Hence there is another plausible motive for the Executive Board of Local 1 voting Bender the salary besides the slender hope Hoffa would confer International funds on the local. Moreover, this possibility we have hypothesized is one befitting the contingent obligation at issue: Bender's salary would be paid when and if the local had funds, and the local would have funds when and if the organizing drives on which Bender had devoted so much energy came to fruition. We add to the foregoing only our view that, so long as the Executive Board's action was not a sham (and we find that it was not), we think the discussion of any motive on the part of the Executive Board to be irrelevant. The Executive Board's resolution was in effect a contract with condition precedent: Bender's salary was to become due and owing when Local 1 obtained the funds to pay. That is the only condition. The condition is not "when Local 1 obtains the funds from Jimmy Hoffa," nor is it "when Local 1 obtains the funds from organizing drives and new members." Neither those nor any other specific eventualities were part of the resolutions, and hence none are relevant to the condition precedent being fulfilled. Therefore, defendants' argument concerning Executive Board hopes about Jimmy Hoffa simply miss the mark. (f) The LM-3 Forms Of the myriad defenses advanced in this litigation, none has been advanced more strongly than the one pertaining to LM-3 forms. We earlier described the LM-3 forms (pp. 972-973 supra), which are reports labor unions are required to file with the Secretary of Labor by virtue of 29 U.S.C. § 431(b). Pursuant to 29 U.S.C. § 438 and 29 C.F.R. § 403.4, a labor union with annual receipts of under $30,000 may file a "simplified" LM-3 form. An organization with receipts in excess of this amount must file the more extensive LM-2 form. At all times pertinent to this lawsuit, Local 1 had gross annual receipts of less than $30,000, and hence was required to file only the LM-3 forms. Defendants' argument rests on equating the LM-2 and LM-3 forms. The LM-2 form is a detailed statement of organizational finance, necessitating several hundred entries over four closely-printed pages. Question 19 asks "Did your organization have any contingent liabilities?" In contrast, the LM-3 form is extremely simplified. As shown on the 1975 form, a copy of which is attached as an appendix to this opinion, only four questions relate to debt: question 29, on accounts payable, question 30 on loans and notes payable, question 31 on mortgages, and question 32 on "other debts." Nowhere on the form does the word "contingent liability" occur. Nor do the instructions accompanying the LM-3 form refer to any contingent liability. The sparse instruction for question 32 merely state "enter all other debts of the organization which have not been listed on lines 29, 30 and 31." Defendants' argument runs as follows: Bender's salary obligation was a contingent liability, contingent on Local 1 obtaining sufficient funds; the LM-2 form (which Local 1 did not have to fill out) explicitly requires disclosure of contingent liabilities; the LM-3 form (which Local 1 did have to fill out), together with its instructions, require disclosure of "all debts"; a contingent liability is part of the category of "all debts" and should have been disclosed to 980 the Government; failure to make such disclosure to the Government means either that the obligation itself never existed, or that plaintiff is barred from imposing the debt on defendants. In other words, defendants apparently draw two different conclusions from the absence of any mention of the salary resolutions in Local 1's LM-3 forms. First, they apparently believe the absence "proves" there was no debt ever created, buttressing arguments advanced elsewhere that the salary resolutions were simply a "sham" made in contemplation of the merger (see pp. 977-978 supra). Alternatively, defendants seem to be arguing that, assuming arguendo there may have been a bona fide debt created between Bender and the Executive Board of Local 1, that debt, because of some kind of estoppel, cannot be transferred or imposed on either the IBT or Local 107 because it was not disclosed on the LM-3 form. We reject the first conclusion. Absence of mention of the salary resolution does not "prove" there was no contingent liability, because strong and credible evidence of the liability exists elsewhere (in the minutes of the meetings at which the resolutions were taken, and in testimony of those present about the resolutions), and because the LM-3 form does not clearly require disclosure of "contingent liabilities." We earlier credited Bender's testimony that neither he nor the certified accountant employed by Local 1 believed the LM-3 form sought information about a debt that would only become owing "when and if" the local had the funds. Their conclusion seems to us reasonable when one peruses the LM-3 and its accompanying instructions and fails to find one single word that is reasonably calculated to put a person on notice that a contingent liability like the salary resolution ought to be included. Hence we cannot conclude that the failure to report the contingent debt reflects anything other than a reasonable belief that no reporting of this kind of future obligation was required; such failure is simply not probative evidence that the obligation itself does not exist. We similarly reject the second conclusion, that (assuming arguendo reporting was required) failure to report the obligation on the LM-3 form bars imposition of the debt on defendants. We think this argument would be valid if, and only if, two conditions were both met: first, that defendants actually relied on the LM-3 forms to their detriment in making the merger decision; and second, that the LM-3 form was, by its purpose and design, the kind of instrument in which defendants could put justifiable reliance in making a merger decision. While both of the above would be necessary conditions, we find that neither has been satisfied in our case. As to the first, defendants made no showing that they actually relied on any LM-3 forms in deciding to merge Local 1 and Local 107. No one from the General Executive Board of the Teamsters International testified that the LM-3 information played any role in the decision to merge Local 1. Similarly, no officer of Local 107 testified that he relied on the LM-3 forms in any aspect of the Local 1 and Local 107 merger matter. That in itself defeats the argument, for defendants cannot claim they were injured by not having available to them certain information on the LM-3 form when they never attempted to use any LM-3 information in making their decision. We note in this regard not only that defendants did not rely on the LM-3 form at the time the merger decision was made, but also that at no time did they ask the Executive Board of Local 1 about any possible contingent liabilities the local might be obligated for in the future. Rather, the record supports the view the merger decision was executed by defendant IBT without consulting Local 1, or requesting any information from it prior to the merger, and in fact informing Local 1 that it had been merged with Local 107 only after the order was a fait accompli. In those circumstances, we think it unjust for defendants, 981 having executed the merger order, and having found to their great surprise that a contingent salary obligation existed of which they were unaware and of which they apparently made absolutely no effort to become aware prior to the merger order, to attempt to disclaim liability because the future debt was not included on an LM-3 form, especially when that form does not clearly require disclosure of such information. Second, even if we assume arguendo that the LM-3 form clearly required disclosure of the "when and if" obligation and that defendants actually relied on the LM-3 form in making their merger decision, defendants still would not have shown that the LM-3 form was intended to be the kind of instrument on which a business association parent (the IBT) could place justified reliance in deciding whether to merge two of its subsidiaries (Local 1 and Local 107). The purposes of the LM-3, and the reporting scheme of which it is a part, have been set forth by Judge Van Dusen in Antal v. District 5, United Mine Workers of America, 451 F.2d 1187 (3d Cir. 1971). Those purposes are threefold: first, to provide the Labor Department with a means to correct corrupt labor leadership practices; second, to provide members of a union information about their leaders, to be used in making informed voting decisions; and third, to provide the general public with information about the practices of union leaders, on a "sunshine" rationale. Antal quotes legislative history that demonstrates these purposes: It is the purpose of this bill to insure that full information concerning the financial and internal administrative practices and procedures of labor organizations shall be, in the first instance available to the members of such organizations. In addition, this information is to be made available to the Government, and through the Secretary of Labor, is to be open to inspection by the general public. By such disclosure, and by relying on voluntary action by members of labor organizations, it is hoped that a deterrent to abuses will be established. * * * * * * The committee believes that union members armed with adequate information and having the benefit of secret elections, as provided for in title IV of this bill, will be greatly strengthened in their efforts to rid themselves of untrustworthy or corrupt officers. In addition, the exposure to public scrutiny of all vital information concerning the operation of trade unions will help deter repetition of the financial abuses disclosed by the McClellan committee. House Report No. 741 (86th Cong. 1st Sess., 2 U.S.Code Cong. & Admin.News, 1959, p. 2424), quoted at 451 F.2d at 1189. See also United States v. Budzanoski, 462 F.2d 443, 450 (3d Cir. 1972). Defendants seek to add two additional purposes to the three described by Judge Van Dusen: to provide a parent organization like the Teamsters with all the information necessary to make an informed decision about whether to merge two of its subsidiary organizations, and to provide a subsidiary organization like Local 107 with information to refrain from objecting to merger with another local. Such purposes are clearly far different from anything Congress had in mind in enacting 29 U.S.C. § 431(b) and (c). An organization parent like the International Brotherhood of Teamsters has available to it any number of internal reporting devices to secure from its subsidiaries all relevant financial information needed to make, e. g. merger decisions. Moreover, a subsidiary like 107 ought to be able to avail itself of its parents' resources. In effect, therefore, defendants demand that LM-3's serve the function that their internal reporting system should have served but did not, apparently because the International never requested information from Local 1 that would have disclosed the existence of the salary resolutions. We cannot conclude the LM-3's are intended to 982 serve the function defendants would have them serve.[9] For the above reasons we reject defendants' arguments concerning the LM-3 forms. (g) The Defense That the Condition Precedent Never Came to Pass Because Local 1 Never Obtained the Funds Defendants apparently recognize that the salary resolution is in reality a contract with condition precedent the condition being, of course, that Local 1 obtain sufficient funds to pay the salary. They argue that the condition precedent was never fulfilled. Of course, Local 1 never came to have sufficient funds because it was merged with Local 107, (with the latter being designated the successor organization) while Local 1 still had miniscule assets. Since Local 1 has ceased to exist, the argument runs, it is impossible that the condition precedent can ever be fulfilled. The fallacy of the argument lies in assuming that upon a merger, all of the contingent liabilities of the nonsuccessor merged organization are legally extinguished. On the contrary, far from being extinguished, they are transferred, in precisely their pre-merged status, to the successor organization. In other words, upon the merger of Local 1 and Local 107, and the designation of Local 107 as the successor organization, all of Local 1's obligations, whether contingent or otherwise, were transferred to Local 107. Therefore, if Local 1 had a valid pre-merger contingent liability a salary obligation with condition precedent that liability, in exactly its same form, was transferred to Local 107 by 983 virtue of the merger, and it became 107's obligation with condition precedent. While this legal conclusion seems patent, express authority therefor is found in 15 Purdons § 1907. We determine that the Pennsylvania courts, whose law we follow, would apply this statute to a case like ours involving unincorporated associations, since there is no Pennsylvania statute on the merger of unincorporated associations and since the policies that find expression in 15 Purdons § 1907 are so fundamental. The pertinent portions of that statute provide: All the property, real, personal, and mixed and franchises of each of the corporations parties to the plan of merger or consolidation, and all debts due on whatever account to any of them, including subscriptions to shares and other choses in action belonging to any of them, shall be taken and deemed to be transferred to and vested in the surviving or new corporation, as the case may be, without further act or deed. The surviving or new corporation shall thenceforth be responsible for all the liabilities and obligations of each of the corporations so merged or consolidated, but the liabilities of the merging or consolidating corporations, or of their shareholders, directors, or officers, shall not be affected, nor shall the rights of the creditors thereof or of any persons dealing with such corporations, or any liens upon the property of such corporations, be impaired by such merger or consolidation, and any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted to judgment as if such merger or consolidation had not taken place, or the surviving or new corporation may be proceeded against or substituted in its place. (emphasis supplied). Since, under this statute, Local 107 as the surviving organization is responsible for "all of the liabilities and obligations of each of the corporations so merged," it must necessarily be responsible for a contingent liability, or otherwise put, a contract with condition precedent. To us this disposes of any possibility the condition precedent in Local 1's contract was somehow extinguished at the time of merger, and could never come to pass. (h) The Defense That the Condition Precedent Never Came to Pass Because Local 107 Does Not Have Sufficient Funds Given the foregoing analysis the defendants, if they are to prevail on the condition precedent theory, must contend that the plaintiff has failed to prove Local 107's ability to pay Bender's salary. Local 107's ability to pay the obligation was the subject of our last hearing. Extensive financial data concerning Local 107 was introduced, which has been briefly summarized on p. 973 supra. That data shows Local 107 to have current net assets well in excess of $100,000, and to have a cash flow to support ten full time salaried officers each earning $35,000 per year. The salary resolution's "when and if" language do not import any clear legal standard by which to determine whether the condition precedent was fulfilled. In our view, the proper standard for determining whether Local 107 has the funds to pay the obligation is the IBT Constitution, Article VI, § 4(b): (b). Local Unions shall not adopt Bylaws or take any action which would impair their ability to meet their financial obligations to their members in the negotiation and administration of collective bargaining agreements and in conducting the affairs of the Local Union as a solvent organization. Utilizing the above standard, we think plaintiff Bender met his burden of establishing a prima facie case that Local 107 has sufficient net assets and cash flow to pay a $33,000 debt. If there was any reason why it could not, defendant Local 107 did not come forward with it. Indeed, even under a more stringent test, we believe that Local 984 107 is in a sufficient financial position to pay. We conclude, therefore, that the condition precedent has been satisfied, and that the contingent salary obligation has become a liability presently due and owing, payable by Local 107. (i) The Argument That Local 107 Never Expressly Assumed the Obligation The above statute, 15 Purdons § 1907, disposes of this defense as well. The transfer of the contingent liability from Local 1 to Local 107 occurred as a matter of law. It was not dependent on an express assumption on the part of Local 107, and therefore the lack of such an express assumption cannot be a defense. (j) The IBT's Defense Predicated Upon Article X of the IBT Constitution The IBT's Constitution provides the defendant IBT with a complete defense to the liability at issue in this suit. Article X § 13 provides: However, in no event shall the International Union without its consent become liable for the obligations of a subordinate body which has seceded, disaffiliated, dissolved or been dissolved, or has been suspended, merged, or has forfeited its charter. There is no question that the International did not consent to becoming liable for the obligation; similarly, there is no question but that the defense, as provided for in the IBT Constitution, is a complete defense which, if it can be given effect, will wholly shield defendant IBT in this case. The only question, then, is whether the defense may be given effect. The defense predicated on the IBT Constitution might well work an injustice in certain cases. For example, if a person deciding whether to become a general, unsecured creditor of one local made a thorough investigation of that local's financial condition, found its health to be excellent, and decided to loan money, and the IBT soon thereafter, with no notice or warning, merged that local into another local on the verge of bankruptcy, designating the latter local the successor organization, and then disclaimed any liability by virtue of Article X § 13, we think that invocation of that defense might be tantamount to fraud: having engineered and executed the merger in those circumstances, the International might not be able to rightfully disclaim resulting liability. In such a circumstance, we might be forced to invalidate Article X § 13 or at least limit the circumstances in which it could be given effect as a matter of federal common law. One of our authorities for so doing would be Republic Steel Corp. v. UMW, 570 F.2d 467 (3d Cir. 1978), which we read as an expression of the Third Circuit's determination to make International Unions accountable for the actions of subsidiary locals over which they exercise control. However, our hypothesized facts are simply not this case. In our situation, there was no fraud on any creditor, since a local with diminutive assets was merged into a much larger and more financially secure local. Therefore, we would be unjustified on this record in doing anything other than giving full effect to the complete defense for the IBT contained in Article X § 13 of its Constitution.[10] 985 4. Summary; Computation of Damages To summarize the discussion thus far, we conclude that Local 1's Executive Board enacted valid, bona fide resolutions concerning Bender's salary, which were not irregular in any significant fashion except that they were contingent on the local obtaining funds it did not then possess. This contingency was necessary in view of the local's financial condition and the Executive Board's duty not to impair its financial situation; the contingency was also reasonable in light of breakthroughs in union membership Bender was hopeful of accomplishing. There was adequate consideration for Bender's salary in view of the work he performed for Local 1. The contingent liability was transferred in precisely its same fashion to Local 107 upon the merger of those two organizations, but the merger did not create any liability on the part of the International because of a defense arising under the IBT constitution. Therefore, upon the merger order in July, 1975, Local 107 became liable for Bender's salary up to that date "when and if Local 107 came to have the ability to pay." As to salary to Bender after the point of merger, since Local 107 was the successor organization, it could determine Bender's future employment. It chose not to employ him. Since his was an oral employment contract terminable at will, there can be no salary liability after July 21, 1975, the date on which the merger of Local 1 and Local 107 became effective and Bender was discharged from employment. Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974) (upholding at-will termination of employment).[11] Since we have found that Local 107 does have the ability to pay, thus satisfying the condition precedent, we conclude that Local 107 is liable to Bender for salary, in accordance with Local 1's resolutions, from 1972 to the date of the order merging Local 1 into Local 107, July 21, 1975. We compute the amount of salary owed as follows: $10,000 for 1972 plus $10,000 for 1973 plus $12,500 for 1974 plus $8,301.37 for 1975 (an annual rate of $15,000 through July 21, 1975) for a total of $40,801.37. As an offset, Bender was paid $2,019 in salary from Local 1 in 1975, and used another $5,500 in escrowed union dues in 1977, for a total of $7,519. (Although Bender claims only to have paid himself $4,000 from those dues, with the rest going to attorneys fees and court reporter fees connected with the instant litigation, he is accountable for the full amount of that money). Therefore, his total salary for the years in question amounts to $40,801.37 minus $7,519 or $33,282.37, and we will enter judgment in favor of Bender against Local 107 in that amount. III. Defendants' Counterclaim Defendants' counterclaim asks that we declare the merger between Local 1 and Local 107 to be legal, and further seeks an order that Local 1 turn over all union property under its control, whether tangible or intangible, to successor Local 107. As to the first part of the counterclaim, a declaration of legality (as against the charges of illegality contained in plaintiff's amended complaints in this suit), our earlier opinion at 419 F.Supp. 263 denied plaintiff a preliminary injunction to enjoin the merger, finding on a copious record that plaintiff's probability of success on the merits of the litigation was "not high." 419 F.Supp. at 288. Plaintiff has adduced no evidence since that opinion to elevate his probability of success. We formally adopt, on final hearing, the findings of fact and 986 conclusions of law set forth on our earlier opinion and, on the basis thereof, conclude that the merger of Local 1 and Local 107 was and is valid as against an attack that the merger violated 42 U.S.C. § 1985 or the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(a)(2), (4), (5) and § 529, or contractual relations between the IBT and its locals or state law.[12] The second part of defendants' counterclaim is based upon the IBT Constitution, Article X § 13, which provides: Section 13. When the charter of a subordinate body is revoked, the subordinate body or its officers shall be required to turn over all books, documents, property and funds to the General President or his representative, or to the General Secretary-Treasurer of the International Union, and should a subordinate body secede, disaffiliate, or dissolve or be dissolved, or be suspended, or forfeit its charter, then all books, documents, property and funds shall likewise be turned over to the General President or his representative, or to the General Secretary-Treasurer to be held until such time as the subordinate body may be reinstated or reorganized. . . . Although this provision does not expressly refer to "merger," we think the "be dissolved" language broad enough to cover the merging of Local 1 into Local 107 and Local 107's designation as the successor organization. Since we determine the July, 1975 merger order to have been valid, we shall order that all books, documents, property and funds under Local 1's control be turned over forthwith to the General President or General Secretary-Treasurer of the International Brotherhood of Teamsters. Alternatively, since under Pennsylvania law, 15 Purdons § 1907 discussed at pp. 982-983 supra, all the assets and liabilities of Local 1 are now assets and liabilities of Local 107 as a matter of law, Local 1 may choose to turn over the books, documents, property and funds to the officers of Local 107. 987 NOTES [1] This opinion concerns the claims of plaintiffs only against defendant IBT and Local 107. The remaining defendants were dismissed as parties early in the proceedings. [2] Indeed, it is necessary to incorporate all of the findings contained in our earlier opinion, since the issues involved there are also before us on final hearing, hence we do so. While incorporation may be less satisfactory than formal rescription, it is also less time consuming. We shall, however, where helpful to the present discussion, restate discrete earlier findings. [3] Local 107 is a large local headquartered in Philadelphia, most of whose members are truck drivers. [4] Indeed, during the two year period between July, 1973 and July, 1975, from the decision to merge Local 1 to the decision to merge it with Local 107, the IBT made no effort to solicit Local 1's views concerning a merger. Nor did it consult with any officers of Local 1 concerning the effect of a merger on Local 1's membership, its organizing drives or any other matter of interest to the Local. The decision to merge Local 1 and the finding of an accommodating merging partner were carried out wholly without Local 1's consultation, input, advice, and knowledge. [5] See Henry v. Richarson Merrell, 508 F.2d 28 at 34 n. 14 (3d Cir. 1975). [6] We also conclude that there was no violation of the IBT constitutional provisions relative to composition and meetings of the Executive Board. [7] For example, plaintiff introduced credible evidence that in October, 1975, three months after the merger order, at least fifty-four members of Local 1 wrote to IBT President Fitzsimmons to protest the merger order, stating, "We are writing to advise you that we have been highly satisfied with the work of Mr. William Bender. He pursued our demand with diligence and enthusiasm and has impressed all of us favorably." The petitions are illustrative of the record evidence of Local 1 membership support for Bender. Defendants did not produce any evidence of membership disproval of Bender's work. Moreover, the rate of compensation voted to Bender was if anything far below what prevailed in IBT local unions, and clearly below what a man of Bender's capabilities and experience could have earned) in another union position. [8] Neither do we believe that the failure of Local 1 to conduct regular membership meetings in any way vitiates Bender's salary claim. [9] Not content with relying on the labor forms themselves, defendant IBT cleverly sought to create authority for its position with the help of the United States Department of Labor. On March 30, 1978, a week after our final hearing on Bender's salary claim, and after we had closed the record counsel for IBT solicited the views of the Labor Department on whether the specific contingent liability at issue in our suit should be included on the LM-3 form. The "opinion letter" received from the Labor Department reads as follows: Ms. Roslyn A. Mazer Dickstein, Shapiro & Morin 2101 L. Street N.W. Washington, D.C. 20037 Dear Ms. Mazer: The following is provided in answer to your inquiry dated March 30, 1978. Section 201(b) of the Labor Management Reporting and Disclosure Act of 1959, as amended requires that the financial report be in such detail as may be necessary to accurately disclose the financial conditions and operations for the preceding fiscal year. An Agreement to pay a union officer's salary "when and if the local has the funds" indicates future indebtedness. This debt should be disclosed on the LM-3 form if (a) it materially affects or could affect the financial condition of the union and (b) this is information that a union member has a right to know. Since payment of the debt depends on "when and if the local has the funds," it should be disclosed in Item 32 of Form LM-3, with an explanation in Item 21 unless such agreement is later rescinded by the governing body. Thank you for your inquiry. Sincerely yours, /s/ Bonnye K. Newkirk, Accountant Section of Audit Telephone: XXX-XXX-XXXX The letter was first submitted under the guise that it was legal authority or precedent, which plainly it is not. In terms of potential evidentiary status, it was submitted after the record was closed and we rejected it on that ground alone. Moreover, to the extent that its submission might be deemed timely, it is hearsay and not within the exceptions of F.R.Evid. 803(8), hence inadmissible in any event. We did order the letter to be part of the record for purposes of review. Were we, however, to consider Ms. Newkirk's letter we would read it as supporting our conclusion. Ms. Newkirk stated the contingent liability should only have been disclosed on the LM-3 form if it was "information a union member has a right to know." This is consistent with the Antal opinion and the legislative history on which the opinion is based, that the primary intended beneficiaries of disclosure are union members. The Labor Department's letter provides no support for defendants' view that parent labor organizations making these decisions (the IBT) or subsidiary labor organizations making merger decisions (Local 107) are intended beneficiaries of LM-3 information. [10] It may seem anomalous to absolve IBT from liability but to hold liable Local 107 although we have found that the IBT ordered Local 107 to effectuate the merger without giving that Local a significant voice in the decision-making process. See text n. 4 supra. Yet this result is what we have determined the law to require. Local 107 has never asserted a cross-claim against the IBT pursuant to Fed.R.Civ.P. 13(g) at any time in our proceeding. Local 107 may well have or have had, valid grounds for imposing complete or partial liability on the IBT for Bender's salary claim, based on representations made to the Local by the IBT at the time of merger, or based on other grounds. However, since no crossclaim of any type was asserted, our record is wholly devoid of evidence probative on this issue. Accordingly, we express no opinion on the matter. [11] Plaintiff has sought compensation from July 21, 1975, to the present on the theory of quantum merit, i. e. that he conferred a benefit on Local 107 by continuing to service the former Local 1 membership. But inasmuch as the "benefit" was one Local 107 expressly sought him not to confer, and inasmuch as after the merger Local 107 had the legal right to prevent him from servicing that membership, we find a quasi-contract theory inappropriate to the post-merger salary claim, and conclude Bender has no right to post-merger compensation. [12] Even though in our earlier opinion we found plaintiff to have stated valid causes of action under some of these statutory and contractual protections, the absence of additions to the record means that any cognizable causes of action have failed for lack of proof.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2733658/	Moreover, this court has held that the right to appeal is typically an adequate legal remedy precluding writ relief. Pan, 120 Nev. at 224, 88 P.3d at 841. Having considered the petition, we are not persuaded that our intervention by way of extraordinary relief is warranted. NRAP 21(b)(1); Smith, 107 Nev. at 677, 818 P.2d at 851; Pan, 120 Nev. at 228, 88 P.3d at 844. Accordingly, we ORDER the petition DENIED. Hardesty OVA' ,J. Douglas J. cc: Hon. Elissa F. Cadish, District Judge Christensen Law Offices, LLC Upson Smith/Las Vegas Eighth District Court Clerk SUPREME COURT OF NEVADA 2 (0) 1947A ea	01-03-2023	09-17-2014
https://www.courtlistener.com/api/rest/v3/opinions/1371776/	101 Ga. App. 844 (1960) 114 S.E.2d 922 HAYES v. GIDDENS et al. 38290. Court of Appeals of Georgia. Decided June 16, 1960. 845 E. L. Smith, for plaintiff in error. Burt & Burt, W. H. Burt, contra. FELTON, Chief Judge. 1. The general grounds of the motion for a new trial have been abandoned. Special ground 4 of the amended motion complains that the court "in charging the jury went outside the pleadings in the case and charged the jury the law with reference to partnerships" in certain specified particulars. It is averred that the charge complained of "did not apply in said case," and "that the effect on the jury of charging on partnership was confusing." A ground of a motion for a new trial complaining that the charge of the court is misleading or confusing is too general to be considered, where, as here, it fails to allege wherein it was misleading or confusing. Riddle v. Sheppard, 119 Ga. 930 (3) (47 S.E. 201). 2. Special ground 5 assigns error on a portion of the charge submitting to the jury for determination whether or not there was a partnership relation existing between the parties in this case. It is contended that this charge was erroneous because the sole question under the pleadings was whether the defendants owed the plaintiff on an account stated, or whether the plaintiff owed some amount to the defendants. This ground fails to point out how the charge excepted to is harmful to the plaintiff and is 846 therefore too incomplete to be considered by this court. Nunnally v. Shockley, 97 Ga. App. 300 (2) (103 S.E.2d 74). 3. Special ground 6 states that the court "charged Code Section 75-102 of the Code of 1933 quoting the same to the jury" and that movant contends "that said Code section has no bearing upon the issue in said case . . . and the same was confusing to the jury and prejudicial to movant's case." This ground contains no actual assignment of error on any portion of the charge. In addition, it does not show how or in what manner the quoting of the Code section referred to is harmful. It is therefore incomplete and cannot be passed upon. 4. Special ground 7 assigns error on the admission of testimony by the defendant showing that he had been in the military service over the objection that such evidence was irrelevant and immaterial. The court ruled that "just being in the service would be irrelevant" but stated to the defendant's counsel that "I will let you show about the money" after which, without objection, the defendant was questioned concerning receipt of his monthly pay from the Air Force. It appears that the court actually sustained the plaintiff's objection to the alleged irrelevant testimony and in the absence of any request to the court to instruct the jury that the evidence was stricken, there is no legal ground for complaint. Hopkins v. State, 190 Ga. 180, 185 (8 S.E.2d 633). 5. The court did not err in overruling the amended motion for a new trial. Judgment affirmed. Nichols and Bell, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371757/	114 S.E.2d 786 (1960) 252 N.C. 640 STATE of North Carolina ex rel. NORTH CAROLINA UTILITIES COMMISSION v. CITY OF WILSON and City of Rocky Mount. No. 235. Supreme Court of North Carolina. June 10, 1960. 789 Malcolm B. Seawell, Atty. Gen., F. Kent Burns, Asst. Atty. Gen., for North Carolina Utilities Commission. Lucas, Rand & Rose, Wilson, for City of Wilson. Thorp, Spruill, Thorp & Trotter, Rocky Mount, for City of Rocky Mount. WINBORNE, Chief Justice. Decision on this appeal turns upon the answer to this question: Did the Judge of Superior Court err as matters of law in holding that Chapter 685 of the 1959 Session Laws is constitutional and of retroactive effect. This act is captioned "An Act to validate certain agreements between telephone companies and municipalities and to make provision for future agreements." Sec. 1 of the act provides that "any franchise agreement or other arrangement heretofore made between any telephone company and any municipality in which the telephone company has agreed to furnish certain telephone service or facilities to the municipality is hereby in all respect validated during the life or term of such agreement 790 or arrangement." And the General Assembly declared in Sec. 2 that "All laws and clauses of laws in conflict with this Act are hereby repealed, but nothing herein shall be construed as repealing, modifying, altering, or amending subsection (f) of G.S. 105-120"; and in Sec. 3 that "This Act shall become effective upon its ratification * * " the 2nd day of June, 1959. The above question arises upon exceptions 15, 16 and 17 to matters of law on which assignments of error are predicated. See Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; State v. Dew, 240 N.C. 595, 83 S.E.2d 482; Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405, as to sufficiency of the grouping of exceptions and assignments of error to comply with Rule 21 of the Rules of Practice in the Supreme Court. 221 N.C. 544, at page 558. In respect to the above question the facts found on which the judgment from which appeal is taken is based are binding on this appeal,the exception to the judgment raising only the questions as to whether the facts found support the judgment, and whether error in law appears upon the face of the record. It is therefore appropriate to review the record in the light of pertinent principles of law. Appellant at the outset contends that the Utilities Commission properly concluded that the Carolina Telephone & Telegraph Company was rendering service free or at reduced rates to some municipalities in violation of G.S. § 62-69, which provides: "No public utility shall directly or indirectly, by any device whatsoever, or in any wise charge, demand, collect or receive from any person a greater or less compensation for any service rendered or to be rendered by such public utility than that prescribed in the schedules of such public utility applicable thereto then filed in the manner provided in this article, nor shall any person receive or accept any service from a public utility for a compensation greater or less than that prescribed in such schedules." And G.S. § 62-68 requires all public utilities to keep on file with the Commission schedules which show "all rates established by it and collected or enforced * * within the jurisdiction of the Commission." In this connection, there is evidence in this record which discloses that concession telephone service (i. e., service for which no charge is made or for which the charge is less than the tariff or schedule charge) is extended to various municipalities served by the Carolina Telephone & Telegraph Company. There is no tariff on file with the Commission, providing for such service, nor is such tariff on file which permits it. To the extent of granting this service either free or at a reduced rate without a schedule of rates permitting such service the Commission held that the company was in violation of G.S. §§ 62-68 and 62-69. However, it is the contention of the municipalities that their franchise agreements with the company do not fall within the purview of the Commission's jurisdiction. They contend that the franchise agreements are in reality "private" contracts, and by the terms thereunder the cities grant the company the privilege, during the life of the franchise, of the use of the streets for erection of company poles and transmission lines, etc., in exchange for a designated number of telephones without cost or at a reduced rate. The municipalities cite Halifax Paper Co. v. Roanoke Rapids Sanitary Dist., 1950, 232 N.C. 421, 61 S.E.2d 378 for the proposition that the type of "private" contract at hand has been held to be outside of the jurisdiction of the Commission. However it should be noted that the contract in the Sanitary Dist. case was between a private corporation and a quasi-municipal corporation, which by provision of G.S. § 130-39 is not under the jurisdiction, control or supervision of the North Carolina Utilities Commission as to service or rates. G.S. § 62-30 791 (3). In the factual situation at hand, the Carolina Telephone & Telegraph Company is clearly under the supervision of the Commission by terms of G.S. § 62-30(2). Thus the Sanitary Dist. case is clearly distinguishable factually from the instant case. Indeed the Utilities Commission contends and properly concludes that the practice of rendering service to the municipalities either free or at a reduced rate is discriminatory. A fundamental basis for the regulation of public utilities is to assure that once monopoly powers have been granted, the utility will provide all of its customers similarly situated with service on a reasonably equal basis. Prior to the Public Utilities Act of 1933 discrimination by a public utility was unlawful. Railroad Discrimination Case, 136 N.C. 479, 48 S.E. 813; Hilton Lumber Co. v. Atlantic Coast Line R. R. Co., 141 N.C. 171, 53 S.E. 823, 6 L.R.A.,N.S., 225; Garrison v. Southern R. R. Co., 150 N.C. 575, 64 S.E. 578. G.S. § 62-70 provides: "No public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service. The Commission may determine any questions of fact arising under this section." In State ex rel. Utilities Comm. v. Mead Corp., 238 N.C. 451, 78 S.E.2d 290, 298, opinion by Devin, C. J., the Court said: "The obligation of a public service corporation to serve impartially and without unjust discrimination is fundamental (citing cases) It is not essential that consumers who are charged different rates for service should be competitors in order to invoke this principle (citing cases) There must be substantial differences in service or conditions to justify difference in rates. There must be no unreasonable discrimination between those receiving the same kind and degree of service. Horner v. Oxford Water & Electric Co., 153 N.C. 535, 69 S.E. 607; Postal Telegraph-Cable Co. v. Associated Press, 228 N.Y. 370, 127 N.E. 256." This statement was quoted with approval in State ex rel. North Carolina Utilities Comm. v. Municipal Corporations, 243 N.C. 193, 90 S.E.2d 519. Appellant cites 43 Am.Jur., Public Utilities and Services, Sec. 175, p. 687, for the majority rule that: "The majority of the cases take the view that the furnishing of free service for municipal purposes in compliance with franchise provisions constitutes an unjust and illegal discrimination." Having made the determination that discrimination existed the Commission was bound by the terms of G.S. § 62-72 which in pertinent part provide: "Whenever the Commission, after a hearing * finds that the existing rates in effect * * are unjust, unreasonable, insufficient or discriminatory * * * the Commission shall determine the just, reasonable and sufficient rates to be thereafter observed and in force, and shall fix the same by order as hereinafter provided. (1933, C. 307, S. 8)" In Corporation Comm. v. Henderson Water Co., 190 N.C. 70, 128 S.E. 465, 466, the City of Henderson, North Carolina, brought suit against the Corporation Commission (now the Utilities Commission) and moved to enjoin the Commission from fixing rates for water supplied the City of Henderson by the Henderson Water Company, different from those rates stipulated in a prior existing franchise granted to the company by the city. The city's motion rested on the ground that the city's contract rights were being violated, and that neither the commission nor the court had the power or authority to change the rates during the life of the contract. The motion was denied and sustained on appeal, the Court holding: "The power conferred by its charter upon the city of Henderson 792 `to provide water and lights, and to contract for same * * is subject to the police power of the state, with respect to rates to be charged under such contracts as the city may make under its charter with a public service corporation. Const. of N.C. art. 7, §§ 12, 14; article 8, § 1." In an earlier decision In re Petition for Increase of Street Car Fares, 179 N.C. 151, 101 S.E. 619, 624 (upon which the court in the Corporation Comm. v. Henderson Water Co., supra, relied), the Court was presented with a petition for an increase in street car fares to a level exceeding that fixed by a franchise agreement between the City of Charlotte and the street car company. Our Court held that the public interest as set forth in the Commission's order is paramount over any contract the city may have for a lower rate. Hoke, J., speaking for the Court, observed: "Not only is the judgment of his honor sustained by the principle more directly involved, but any other ruling in its practical application would likely and almost necessarily offend against the principle which forbids discrimination on the part of these companies towards patrons in like condition and circumstance. If a quasi public company of this kind could evade or escape regulation establishing fixed rates that are found to be reasonable and just by making long-time contracts or other, this regulation might be made to operate in furtherance of the very evil it is in part designed to prevent." Indeed the Commission properly concluded that the requirement of free or reduced rate service by the municipalities as a condition precedent to the granting of franchises amounted to a tax in violation of G.S. § 105-120(f), which provides: "Counties, cities and towns shall not levy any franchise, license, or privilege tax on the business taxed under this section." This provision has been in effect in one form or another since 1899 (Public Laws of 1899, c. 11, Sec. 60), and was made a part of the permanent Revenue Act when it was adopted in 1939 (Public Laws of 1939, c. 158). The Commission held that in effect the means employed by the cities in granting franchise agreements constituted a levy of a tax. The Commission went on to find, however, that if it should be later determined that the concession service does not constitute the levy of a tax, but rather is a service for which the municipality is entitled to be paid, "it is in the public interest that each municipality bill the utility company for the service it renders and the utility company furnish telephone service to the municipality at the regular and applicable rates for the service rendered." The Commission's findings are further substantiated by the franchise ordinance of the City of Rocky Mount where it sought to waive its presumed right to levy a privilege tax for occupancy of the streets and alleys of Rocky Mount in consideration of the company "furnishing to the town * * * the above free telephones." The municipalities argue that the tax imposed by G.S. § 105-120(a)-(d) is a franchise or privilege tax to engage in business, and not a tax for the use of the streets and therefore the prohibition contained in G.S. § 105-120(f) does not apply. Our Court in opinion by Barnhill, J., later C. J., in Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289, 294, held that a nickel exacted by a municipality from drivers for parking meters is only a consideration for use of the streets for a limited time: "The revenue derived from the on-street parking facilities is exacted in the performance of a governmental function. It must be set apart and used for a specific purpose. By whatever name called, it is in the nature of a tax." Adopting the view of either the municipalities or the Commission it becomes manifest that this is a franchise or privilege tax. Construing G.S. § 160-2(6) which *793 authorizes municipalities to grant franchises upon reasonable terms, in pari materia with G.S. § 105-120(f) it becomes clear that no authorization of additional tax was intended. Now coming to ruling of the Superior Court that Chap. 685 of the 1959 Session Laws is not unconstitutional and is effective retroactively, the Commission urges that the court erred since free or reduced telephone service to municipalities is a tax prohibited by law, and is discriminatory both as between towns which are similarly situated and as between those towns and individual rate payers living in towns or in the country. Hence the Commission stressfully contends that the act is unconstitutional (1) because it offends the due process provisions of both State and Federal Constitutions, (2) because it is not a uniform tax, (3) because it interferes with vested rights, and (4) because it is an attempt to surrender the police power of the State. In the light of these principles the Court holds that the 1959 act above referred to is unconstitutional. Moreover, since the effective date is fixed at June 2, 1959, its effect is prospective only. Thus it is patent that the judge of the Superior Court in reaching the conclusion on which judgment below is predicated acted under a misapprehension of the law. Therefore the judgment will be and is hereby set aside and vacated, and the cause remanded for appropriate proceedings. See McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and cases cited. See also Strong's N.C.Index, Vol. 1, p. 140, Appeal and Error, Sec. 49. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371784/	90 Cal. App. 2d 310 (1949) MADELEINE LANDAU ROSENTHAL, Respondent, v. JOHN ARTHUR LANDAU, Appellant. Civ. No. 13979. California Court of Appeals. First Dist., Div. One. Feb. 25, 1949. Harold L. Levin for Appellant. Sugarman & Bernheim, Irving C. Sugarman and Louis L. Bernheim for Respondent. PETERS, P. J. Plaintiff, Madeleine Landau Rosenthal, brought this action against her former husband, John Arthur Landau, to quiet her title to a piece of improved real property in San Francisco. Defendant answered and cross-complained, praying that plaintiff be declared a constructive trustee of the property, and that she be compelled to convey it to him. The trial court determined all issues in favor of plaintiff and against defendant, and entered its judgment quieting plaintiff's title to the property. From that judgment, on a settled statement of facts, defendant appeals. The facts are not in dispute. On March 14, 1932, by contract, appellant purchased a home through the Department of Veterans Affairs of the State of California for a total purchase price of $4,992 to be paid off at the rate of $30 a month over a period of 20 years. Appellant and respondent were then husband and wife, and, although then living separate and apart and divorce proceedings were pending, were on friendly terms. Respondent testified that appellant came to her and told her that he had arranged to purchase a home but could not afford to make the monthly payments; that, if she would pay him $200 and make the payments on the house, she could have the home in settlement of their property rights. Appellant testified that he told respondent that she could live in the house, and make the payments to the Veterans Administration in lieu of paying rent to him; that he would give her a deed to the property which she was not to record; that respondent was to have no title to the property until after appellant's death; that during his lifetime appellant was to have complete ownership, including the rights to borrow, sell, or mortgage the premises. Three independent witnesses testified that appellant had told them that he had given the property to respondent. The trial court resolved this conflict 312 in favor of respondent, and no challenge is made as to the sufficiency of the evidence to support this, or any other finding. On September 6, 1932, appellant received from respondent a check for $200 and delivered to her a quitclaim deed to the property. In addition, respondent made a down payment upon a $500 note given to the sellers of the house. All payments to the Veterans Administration were made by respondent. She also paid all taxes and all insurance premiums, although the property was assessed to appellant and the insurance was in his name. Respondent has continuously occupied the house from March, 1932, down to the present date. When the parties were divorced the property here involved was not mentioned in either the interlocutory or final decrees. After the parties were divorced, respondent remarried, and, under date of December 13, 1942, appellant executed and delivered to her a second quitclaim deed to the premises under her new married name. Neither of these deeds was recorded until 1947. Appellant made no claim to the premises until 1947. In that year he attempted to secure a $5,000 loan from a San Francisco bank secured by a deed of trust on the premises. Before this loan was released from the title company respondent recorded her second quitclaim deed. This occurred two days after appellant had recorded his deed and deed of trust. On that date the title company had already paid $1,479.60 to the Veterans Administration, that being the balance due on the purchase price. The parties to this proceeding then agreed that the title company should return to the bank the balance of the $5,000 still in its possession, and it has been further agreed that whoever wins this litigation shall assume and pay the $1,479.60 already advanced by the bank. On this evidence the trial court quieted the title of respondent to the property. [1] Appellant first points out that, through the bank, he paid off the Veterans Administration, and recorded its deed to him and executed and recorded a deed of trust to the bank before respondent recorded her quitclaim deed. He then points out that a quitclaim does not, in this state, pass an after-acquired title, citing section 1106 of the Civil Code, and contends that he had the legal right to acquire the fee title after executing the quitclaim deeds. This argument is not sound. At the time the quitclaims were executed and delivered, appellant had an equitable interest in the property and the right to complete his title by paying off the balance of the purchase price. That equitable 313 interest and the rights incident thereto, were conveyed by the quitclaim deeds to respondent. There is no doubt, of course, that a quitclaim passes whatever interest, legal or equitable, that the grantor then possesses. This being so, the appellant could not defeat that transfer by exercising rights already conveyed to respondent. The dates upon which the various deeds were recorded are false factors in the case. All parties now involved were aware of the title dispute and no bona fide purchaser is involved. (Civ. Code, 1217.) [2] The main question involved on this appeal is whether, under certain sections of the Military and Veterans Code, the conveyance by appellant to respondent was void and illegal. Admittedly, neither appellant nor respondent secured the written consent of the Veterans Administration to the transfer from appellant to respondent as required by the sections in question. There can be no doubt that the statutes involved require the consent of the Veterans Administration to any transfer by the veteran of his interest in the contract of purchase. The Military and Veterans Code sets forth, in some detail, what provisions shall be inserted in the contract between the veteran and the state. The act has always contained a provision relating to interest charges. As originally enacted in 1921 (Stats. 1921, p. 816, ch. 519, 6), and as placed in the Military and Veterans Code in 1935 ( 820), that interest rate was fixed at 5 per cent per annum. In 1945 (Stats. 1945, p. 720, ch. 255, 1), and again in the extra session of 1946 (Stats. First Ex. Sess. 1946, p. 69, ch. 47, 1), the section was amended to permit the board to fix the interest yearly at a rate between 4 per cent and 2 1/2 per cent per annum. In 1947, there was added section 820.5 to the code (Stats. 1947, p. 899, ch. 336, 1). It reads as follows: "The provisions of Section 820, relative to the rate of interest to be charged to veteran purchasers do not apply to assignees of such purchasers who are not veterans, but as to such assignees the rate of interest shall be fixed by the board, compounded at periods fixed by the board or department." "The action of the board or department in refusing to permit any assignments except as provided in this section is hereby ratified and confirmed, it having at all times been the intent of the Legislature that Section 820 apply to veteran purchasers only." 314 Section 821, since its adoption in 1935, reads as follows: "The board in each individual case may specify the terms of the contract entered into with the purchaser, but no property sold under the provisions of this chapter shall, voluntarily or involuntarily, by operation of law or otherwise, be transferred, assigned, encumbered, leased, let or sublet, in whole or in part, without the written consent of the board, until the purchaser has paid therefor in full and has complied with all the terms and conditions of his contract of purchase." (See, also, 987.1, added in 1943, containing a similar provision.) It should be noted that, although the key section--821--was not enacted until 1935, which was subsequent to the execution and delivery of the first quitclaim deed in 1932, in the original statute--Stats. 1921, p. 815, ch. 519--in 6, and p. 816, there was a section containing almost the same wording. For the purposes of this appeal, the two sections have the identical legal effect, so it is immaterial which governs. It is the theory of appellant that, because written permission of the Veterans Administration was not received, the quitclaims were void, and the transaction was against public policy and illegal, and should not be enforced by the courts. It may be conceded that, if section 821, supra, and the other sections referred to above, were passed for the protection of the public and not simply for the protection of the vendor, any contract in violation thereof would be illegal and void, and unenforceable. The difficulty with the position of appellant is that it has already been held that such provisions, whether they appear in a contract or in a statute, are not designed to protect the public, but are for the protection of the vendor only, and do not affect the validity of transfers made between the purchaser and his transferee. Two relatively recent cases not cited in the briefs of either party are decisive on this issue. The first case is Johnston v. Landucci, 21 Cal. 2d 63 [130 P.2d 405, 148 A.L.R. 1355]. That case involved the validity of an assignment by Landucci of a contract to purchase land. The contract between the original seller and purchaser contained a clause to the effect that "Neither this contract nor any interest therein shall be assignable without the written consent of the seller" (P. 67.) The court held that an assignment without consent was not void, but was valid between the parties, subject to the rights of the vendor. In so holding, the court stated (p. 67): 315 "Although there are no cases directly in point in California, the overwhelming weight of authority in other jurisdictions is to the effect that provisions against assignment, such as that contained in paragraph 17 of the Miller & Lux contract, are for the benefit of the vendor only, and in no way affect the validity of an assignment without consent as between the assignor and assignee. In other words, the interest of the assignor in the contract passes to the assignee, subject to the rights of the original seller. This is the rule set forth in the Restatement of the Law of Contracts. Section 176 reads as follows: 'A prohibition in a contract of the assignment of rights thereunder is for the benefit of the obligor, and does not prevent the assignee from acquiring rights against the assignor by the assignment or the obligor from discharging his duty under the contract in any way permissible if there were no such prohibition.'" "The rule that such provisions are for the benefit of the seller and in no way affect the validity of an assignment as between the assignor and assignee is the rule adopted by the United States Supreme Court (Portuguese- American Bank v. Welles, 242 U.S. 7 [37 S. Ct. 3, 61 L. Ed. 116]), and is the rule approved by Williston in his work on Contracts (Williston on Contracts, Revised ed., vol. II, 422). Although there are no cases in California dealing directly with the assignment of choses in action in violation of a provision against assignment, there are several cases which hold that the prohibition in a lease against assignment is for the benefit of the lessor, and that an assignment without consent passes the interest of the assignor to the assignee. [Citing four California cases.]" This case, of course, dealt with a nonassignability without consent clause in a contract. In the second case--O'Neill v. O'Malley, 75 Cal. App. 2d 821 [171 P.2d 907]--this court held that the same rule applies to the precise statute here involved. That case was an action to quiet title to a contract of purchase and to certain property described therein. In 1937, O'Malley had purchased the property, on an installment contract, from the Veterans Administration. In 1943, while divorce proceedings were pending, O'Malley assigned to his wife Charlotte, as part of a property settlement, all of his interest in the contract and property. This assignment was submitted to, and approved by, the Veterans Administration. Subsequent to this assignment, and until her death in 1944, Charlotte made all payments called for by the contract. Prior 316 to her death, Charlotte and O'Malley entered into a written contract whereby Charlotte assigned to O'Malley and herself, as joint tenants, all of her interest in the contract and property. This assignment was not submitted to, or known or approved by, the Veterans Administration, nor was it acknowledged or drawn in the form prescribed by the Veterans Administration for the transfer of property in joint tenancy. Following the death of Charlotte, a dispute arose between O'Malley and the executor of Charlotte's estate over who was entitled to the property. The Veterans Administration, as in the instant case, decided to take a neutral position and to let the parties litigate the issue. The executor of Charlotte's estate then brought an action to quiet her title to the property, and O'Malley cross-complained for the same relief. Judgment went for O'Malley. On appeal the main contention of the executor was that the assignment was void and illegal because the consent of the Veterans Administration had not been secured as required by section 821 of the Military and Veterans Code. This court held that the ruling in Johnston v. Landucci, supra, was controlling. In so holding the court stated, after noting the language of section 821 (p. 826): "There can be no doubt at all that under these sections [ 821 and 987.1] there is a limitation against assignment written into every board contract by operation of law even if not expressed. But it is quite clear that if private individuals incorporated into their contract the exact language of the two statutes, under the Landucci case, such language would be interpreted to be for the sole benefit of the vendor and would in no way affect the validity of the assignment between the assignor and assignee. It would seem that that language when used in a statute should not be given a different meaning. What appellants have overlooked is that there is a strong public policy in favor of the free transferability of property, and that such provisions have quite uniformly been interpreted as being for the sole benefit of the vendor and do not affect the rights inter se of the assignor and assignee. The board is not a party to this action and its rights are not involved. The Legislature, in the absence of compelling language to the contrary, must be held to have meant by the language used exactly what private individuals would have meant had they used the language. Words do not acquire a peculiar and different meaning because used in a statute." The Supreme Court denied a petition for hearing. The ruling in this case, dealing as it does with the identical statute 317 here involved, is conclusive in the present case. The addition of section 820.5 to the Military and Veterans Code in 1947 (quoted supra) in no way affects the rule of the O'Neill v. O'Malley case. That section affects only the rights of assignees against the Veterans Administration, and in no way affects the rights of the assignee and assignor between themselves, or the rights of the public. The Veterans Administration is not a party to this proceeding. Whatever rights it may have against the assignee are not here involved. The judgment appealed from is affirmed. Ward, J., and Bray, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371751/	114 S.E.2d 340 (1960) 252 N.C. 514 Ransom WILLIAMS and wife, Edna Orders Williams, v. STATE HIGHWAY COMMISSION OF NORTH CAROLINA. No. 314. Supreme Court of North Carolina. May 18, 1960. 341 Simpson & Simpson, Morganton, for plaintiffs-appellants. Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Kenneth Wooten, Jr., G. Andrew Jones, Raleigh, Patton & Ervin, Morganton, for respondent-appellee. WINBORNE, Chief Justice. At the outset it is noted that Exceptions 1, 2, 9, 29 and 30 were expressly abandoned by petitioners, and Exceptions 5, 6, 7, 10 and 32 not having been set out in appellants' brief, are taken as abandoned by them. Harmon v. Harmon, 245 N.C. 83, 95 S.E.2d 355, 63 A.L.R. 2d 808; Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658. Neverthless appellants assign as error the exclusion of certain testimony offered by them relating to a Mr. Cabe, an alleged agent of respondent. Part of this testimony consisted of observations of and conversations with Mr. Cabe by petitioner Ransom Williams in the course of settlement negotiations. Neither the purpose for which the excluded testimony was offered, nor the asserted basis of its admissibility are stated in the record. It is apparent that petitioners wanted to place before the jury statements allegedly made by Mr. Cabe to petitioners during the course of negotiations, that "they have damaged you $15,000," and "if he was going to sue, he would sue for $15,000." The statements were 342 hearsay and therefore inadmissible unless within an exception to the hearsay rule. The extra-judicial declarations were not competent to prove the agency of the declarant. Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817; Sledge v. Wagoner, 250 N.C. 559, 109 S.E.2d 180. Even if it be conceded that declarant was respondent's agent, there was no showing that the quoted statements were within the scope of authority of declarant, and the burden of so showing was on petitioners. Fanelty v. Rogers Jewelers, 230 N.C. 694, 55 S.E.2d 493; Sledge v. Wagoner, supra. Assignments of error, based on exceptions taken, are made to the admission of testimony of two of respondent's witnesses relating to damages suffered by petitioners. Witness Mull, on direct examination, after testifying in detail as to his qualifications and his observations of the land in question, and after giving his opinion as to the reasonably fair market value of the land before and after the taking, was asked to describe how he arrived at his opinion of the difference. He replied: "By breaking the land down to its highest and best use, I computed what would be approximately 3½ acres of frontage along the Jamestown Road which I figured at $1,000 an acre * * ." Petitioners objected to "highest and best use". In Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10, 13, this Court said: "In estimating its value all of the capabilities of the property, and all of the uses to which it may be applied, or for which it is adapted, which affect its value in the market are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner." This principle is cited in Gallimore v. State Highway and Public Works Commission, 241 N.C. 350, 85 S.E.2d 392, and Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219, 229. "The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered not as a measure of value but to the full extent that such prospect or demand for such use affected the market value at the time respondents were deprived of their (property)." Barnes v. North Carolina State Highway Commission, supra, quoting Nantahala Power & Light Co. v. Moss, supra. The witness had already testified as to his opinion as to the reasonably fair market value of the land. The phrase "highest and best use" was used by witness to show one of the factors considered in arriving at his opinion of the market value. As stated in North Carolina State Highway and Public Works Commission v. Privett, 246 N.C. 501, 99 S.E.2d 61, 64: "Cross-examination was the available medium whereby the weight of the testimony might be impaired by showing that the witness `considered elements and followed methods' that did not reflect fair market value either before or after the taking." The highest and best use was certainly one of the capabilities of the property. It was one of the uses to which the land might be applied, or for which it was adapted, and one which affected its value. Indeed, the highest and best use, the highest and most valuable use, the highest and most profitable use, or the most advantageous use are generally accepted factors in determining the market value of land taken in condemnation proceedings. United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 70 S. Ct. 217, 94 L. Ed. 195; Olson v. United States, 292 U.S. 246, 54 S. Ct. 704, 78 L. Ed. 1236; People v. Ocean Shore R.R., 32 Cal. 2d 406, 196 P.2d 570, 6 A.L.R. 2d 1179; City of Chicago v. Harbecke, 409 Ill. 425, 100 N.E.2d 616; Steifer v. Kansas City, 175 Kan. 794, 267 P.2d 474; Louisiana Power & Light Co. v. Simmons, 229 La. 165, 85 So. 2d 251;. Minneapolis-St. Paul Metropolitan Airports Commission v. Hedberg-Freidheim Co., 226 Minn. 282, 32 N.W.2d 569; Hazard Lewis Farms, Inc. v. State, 1 A.D.2d 923, 149 N.Y.S.2d 658; Moyle v. Salt Lake City, 111 Utah 201, 176 P.2d 882; Appalachian Electric Power Co. v. Gorman, 343 191 Va. 344, 61 S.E.2d 33. The evidence was properly admitted. Also the witness Schiflet, after testifying on direct examination as to his opinion of the reasonable market value of the land before and after the taking, and after testifying on cross-examination that he considered the 3½ acres bordering the Jamestown Road for building purposes, was asked on re-direct examination his opinion as to what was the highest and best use of that particular part of the property. Over objection, he was allowed to answer "for building lots". Appellants contend that the highest and best use is not the criteria to be used in placing a value on condemned property unless such potential use is so reasonably probable or so reasonably immediate as to affect the reasonable market value of the land. That a portion of the land was adaptable to building lots, and that such use was so reasonably probable as to affect the market value is amply supported by petitioners' pleadings, and by the evidence. The objection was properly overruled. Moreover, petitioners except to the issue submitted to the jury. In this connection "It is well settled that issues arise upon the pleadings only and not upon the evidential facts." Darroch v. Johnson, 250 N.C. 307, 108 S.E.2d 589, 592. "No exact formula is prescribed for the settlement of issues." Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296, 302. "Issues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly." Hill v. Young, 217 N.C. 114, 6 S.E.2d 830; Cherry v. Andrews, 231 N.C. 261, 56 S.E.2d 703; Pruett v. Pruett, supra; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295. The issue submitted in the instant case complies with the established principles quoted above. The exception thereto is without merit. Lastly, the remaining assignments of error are directed to the court's charge to the jury on the element of damages. Error is assigned on the basis that the court instructed the jury that it might bring in a verdict answering the issue "Nothing", when all the evidence tended to show that petitioners were damaged in some amount. "The general rules of evidence apply as to the weight and sufficiency of the evidence in condemnation proceedings in respect of the compensation to be awarded or allowed to owner, including the value of the property taken or condemned and including the injuries or damages to the property not taken. Although jurors or commissioners cannot disregard the evidence which the parties produce, in respect of the compensation to be awarded, including the value of property taken and injuries to property not taken, they are not bound by the opinions or estimates of witnesses." 29 C.J.S. Eminent Domain, § 275. "The question of the measure of damages is for the court, but where an issue is made by the pleadings and is tried by a jury the estimation and determination of the amount of the injury sustained is usually a question of fact for their sound and reasonable discretion and they usually assess the damages if any are to be awarded." 25 C.J.S. Damages § 176, p. 857. The determination of the amount of damages is the province of the jury. Lowe v. Hall, 227 N.C. 541, 42 S.E.2d 670. "* * It is the task of the jury alone to determine the facts of the case from the evidence adduced; and * * * `no judge, in giving a charge to the petit jury * * shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury.'" State v. Canipe, 240 N.C. 60, 81 S.E.2d 173, 176; G.S. § 1-180. In the instant case, the questions of the sufficiency of the evidence, and of the amount of damages, if any, to which petitioners were entitled were properly submitted for the jury's determination. 344 The basic statement of law given by the court, and the one around which the remaining instructions were built was as follows: "But, when a governmental agency takes or appropriates private property for public use, the law imposes upon it a correlated duty to make just compensation to the owner of the property appropriated. When private property is taken for public use, just compensation must be paid. Where by compulsory process and for the public good the State or any of its agencies invades and takes the property of its citizens in exercise of its highest prerogative in respect to property, it should pay them full compensation. The compensation must be full and complete and include everything which affects the value of the property taken and in relation to the entire property affected. The petitioners are entitled to be put in as good position pecuniarily as if the property had not been taken." * *" And I instruct you where only a part of a tract of land is appropriated by the State Highway Commission for highway purposes, the measure of damages in such proceeding is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of what is left immediately after the taking. The items going to make up this difference embrace compensation for the part taken and compensation for injury to the remaining portion, which is to be offset under the terms of the controlling statute by any general and special benefits resulting to the landowner from the utilization of the property taken for a highway." Petitioners except to the instructions contained in the last two sentences. That this is a correct statement of the applicable law is too well established to require further elaboration. See State Highway & Public Works Commission v. Hartley, 218 N.C. 438, 11 S.E.2d 314; Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 55 S.E.2d 479; North Carolina State Highway v. Black, 239 N.C. 198, 79 S.E.2d 778; City of Statesville v. Anderson, 245 N.C. 208, 95 S.E.2d 591; Robinson v. State Highway Commission, 249 N.C. 120, 105 S.E.2d 287; Taylor Co. v. North Carolina State Highway and Public Works Commission, 250 N.C. 533, 109 S.E.2d 243. The portion of the charge excepted to above was repeated in the concluding portion of the court's charge. The intervening portions of the charge in which the court instructed the jury as to how it should apply the rule stated above for the measure of damages are fair and correct, and no prejudicial error appears therein. Hence in the judgment from which appeal is taken there is No error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371805/	114 S.E.2d 257 (1960) 252 N.C. 546 Matter of the WILL of Leake S. COVINGTON, Deceased. No. 456. Supreme Court of North Carolina. May 18, 1960. 259 Leath & Blount, Rockingham, and Blakeney, Alexander & Machen, Charlotte, for appellants. Webb & Lee, Bynum & Bynum, Rockingham, and Robinson, Jones & Hewson, Charlotte, for appellee. RODMAN, Justice. Courts of equity, to prevent injustice to one who relies on the spoken word or act of another, fashioned a rule of conduct called estoppel in pais. The rule prohibits or estops the speaker or actor from controverting what he had previously asserted. Lord Coke said: "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." Adams, J., said: "Equitable estoppel in pais owes its origin and development to the notion of justice promulgated by courts of chancery. It embraces estoppel by conduct which rests upon the necessity of compelling the observance of good faith." Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, 273. "The doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men." Stacy, C. 260 J., in McNeely v. Walters, 211 N.C. 112, 189 S.E. 114, 115. The rule has been given recognition and applied in a multitude of cases by this Court. The facts which must be established by the party claiming protection by the rule have likewise been summarized in a multitude of cases. Johnson, J., said in Hawkins v. M. & J. Finance Corp., 238 N.C. 174, 77 S.E.2d 669, 672: "* * * in determining whether the doctrine of estoppel applies in any given situation, the conduct of both parties must be weighed in the balances of equity and the party claiming the estoppel no less than the party sought to be estopped must conform to fixed standards of equity. As to these, the essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially." Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Barrow v. Barrow, 220 N.C. 70, 16 S.E.2d 460; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; Upton & Co. v. Ferebee, 178 N.C. 194, 100 S.E. 310; Boddie v. Bond, 154 N.C. 359, 70 S.E. 824; Holmes v. Crowell, 73 N.C. 613. The record establishes prima facie these facts: Caveator, a few days after the death of his brother, found in deceased's lock box an instrument dated 20 March 1940 admittedly signed by deceased and purporting to be his last will and testament. This paper named caveator as its executor. He had no knowledge of any later will. Assuming its validity he properly offered it for probate and qualified as the executor. Several months after this probate and qualification caveator was informed by one who witnessed it that his brother had executed a will later than 1940. Search was made and the paper writing so witnessed dated 8 September 1953 was discovered among some papers which had been at the home of deceased. This paper was found 17 April 1959, a little more than fourteen months after the discovery of the first paper. On 21 May it was delivered to the clerk of the court. When the last writing was discovered, caveator had a duty to perform. The Legislature, when it granted the right to dispose of property at death, provided for the enforcement of that right. G.S. § 31-15. It became the legal duty of caveator to deliver to the court what purported to be the last will and testament of Leake S. Covington. A fraudulent concealment of this paper would constitute a violation of our criminal laws. G.S. § 14-77. Caveator asserts that he acted with reasonable diligence in the performance of his duty when he delivered the two instruments to the court for probate in accordance with the desires of Leake S. Covington as expressed first on 20 March 1940 and later 8 September 1953. Without knowledge or intimation that there was a later will, caveator acted properly when he qualified as executor of the instrument dated 20 March 1940. That qualification does not now estop him as a matter of law from asserting the invalidity of that will because of its subsequent revocation. Knowledge or reckless indifference to the truth is necessary to invoke the doctrine of estoppel. The absence of that element distinguishes In re Will of Averett, *261 206 N.C. 234, 173 S.E. 621; In re Lloyd's Will, 161 N.C. 557, 77 S.E. 955, and the other cases relied upon by movants from this case. Cf. McClure v. Wade, 34 Tenn.App. 154, 235 S.W.2d 835, 28 A.L.R. 2d 104; In re Bremer's Estate, 141 Neb. 251, 3 N.W.2d 411. The record does not show that caveator as executor took any action after the discovery of the will which was prejudicial to movants or to the estate of Leake S. Covington. He asserts that he acted with reasonable diligence when he acquired knowledge. He called the court's attention to the conflict and his incapacity to serve as executor of both paper writings. We conclude that Judge Armstrong was correct in ordering: "that all issues made by the caveat and other pleadings herein, including any issue of estoppel, if any is properly raised, be tried at term before a judge and jury, reserving to the trial judge the determination of what issue should be submitted to the jury." Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371796/	158 F. Supp. 804 (1958) Theodore GREEN v. UNITED STATES of America. Misc. Civ. No. 58-2. United States District Court D. Massachusetts. January 30, 1958. 805 806 No appearances. WYZANSKI, District Judge. Theodore Green is now in the Federal Penitentiary at Alcatraz, California, serving concurrent sentences, the longest of which is 25 years, imposed in this Court on October 27, 1952 by Judge Ford, for bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Pursuant to 28 U.S.C. § 2255, on January 14, 1958, Green filed a motion to vacate the sentences. Judge Ford disqualified himself; I drew the case by lot. Green's well-organized 17 page motion, elaborately furnished with relevant citations, alleges, in general, first, that in violation of the guarantee of due process of law clause of the Fifth Amendment to the United States Constitution he was denied a fair trial before Judge Ford because the Assistant United States Attorney, who prosecuted him, Edward Hassan, Esq., knowingly used false testimony to obtain his conviction; and second, that he was denied the effective assistance of counsel contemplated by the Sixth Amendment to the Constitution because his counsel, the late Herbert Callahan, Esq., was in collusion with Mr. Hassan. Stated more precisely, the motion can fairly be said to have three parts. First, Green asserts that on October 2, 1952, before his trial began, he and others overheard Mr. Hassan persuade a co-defendant and witness named Roccaforte to commit perjury and they also overheard Mr. Hassan say that another witness named Bistany was going to commit perjury. Second, Green alleges that during his trial he advised his counsel, Mr. Callahan, of what he had overheard, that Mr. Callahan said it would be called to the Court's attention, that instead of so doing Mr. Callahan brought Mr. Hassan to see Green, and that the two lawyers both advised Green not to start any trouble about what he had heard as the matter of sentencing was still ahead. Third, Green alleges that after his trial, Bistany told one Edward Mansour, that Bistany "had made a deal with U. S. Attorney Hassan for complete immunity * * * if he would testify to a perjured statement that petitioner and Jacobonis robbed the Norwood Bank." [the bank in question] An initial question raised not by the moving party but by the Clerk of this Court is whether technically this motion should be classified as a miscellaneous "civil action" for the purposes of the docket of this Court and of reports to the Administrative Office of the United States Courts. In my opinion for those purposes it should be so classified because for those purposes a habeas corpus proceeding is so classified, and this proceeding like a habeas corpus proceeding, "is an independent and collateral inquiry into the validity of the conviction." United States v. Hayman, 342 U.S. 205, 222, 72 S. Ct. 263, 274, 96 L. Ed. 232. In so ruling I am not unmindful that in § 2255 the draftsman has treated a motion thereunder as being filed in the original criminal case involving the prisoner; for the draftsman speaks in his third paragraph of "the motion and the files and records of the case." I construe that language as going no further than to make the records in the criminal case automatically available in the § 2255 proceeding, without the need of any special motion. Nor am I unmindful that a successful motion under § 2255 may result in vacating a sentence in a criminal 807 case. While this is an unusual consequence of a civil action, and differs from the result in a successful habeas corpus proceeding, it does not logically follow that the § 2255 proceeding is wholly criminal in nature. However, it is important to emphasize the limited character of the ruling just made. I am quite unprepared to make a broad ruling that for every purpose a proceeding under § 2255 "is a special civil rather than a criminal proceeding", as it was described by Circuit Judge Kimbrough Stone in Taylor v. United States, 8 Cir., 229 F.2d 826, 832, note 5. It seems to me that it is more accurate to adopt Judge Woodbury's characterization of the proceeding as "a sort of hybrid." Mercado v. United States, 1 Cir., 183 F.2d 486, 487. The proceeding under § 2255 has the following aspects in common with a civil proceeding. Appeals from the district court to the court of appeals are governed by the Rules of Civil Procedure. Paragraph 6 of § 2255 itself so provides. See F.R.C.P., Rule 81(a) (2), 28 U.S. C.A.; Mercado v. United States, supra; Bruno v. United States, 86 U.S.App.D.C. 118, 180 F.2d 393, 395. Perhaps the Rules of Civil Procedure apply to other aspects of the proceedings. See Moore's Federal Practice, 2nd ed., vol. 7, pp. 4436-4438. For example, at least one court has regarded the civil rules as setting the standards of detail requisite for a satisfactory pleading. See Taylor v. United States, 8 Cir., 229 F.2d 826, 833. And, what would be very significant, it may be that F.R.C.P.Rule 77(b) permits a court, with the consent of all the parties, to conduct a hearing outside the district where the sentence was imposed and in the district where the prisoner was held in custody. Were this possibility open, there would be less risk of a prisoner's escape or of his having at government expense a "joy ride" across the country, risks feared by the judges who proposed § 2255 [See the statement of Circuit Judge Stone quoted in footnote 25 of United States v. Hayman, 342 U.S. 205, 217, 72 S. Ct. 263, 271, 96 L. Ed. 232] and which they sought to guard against in the rejected draft they submitted to Congress. [§ 2 of the draft, as described in footnote 23 of Hayman's case in 342 U.S. at page 215, 72 S.Ct. at page 270, would have allowed the sentencing court to decline jurisdiction rather than to transport across the continent "a dangerous prisoner, who * * was confined in Alcatraz Penitentiary."] As in the special form of civil proceeding initiated by a petition for habeas corpus, [See 28 U.S.C. § 2243 and Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L. Ed. 830] so in the proceeding initiated by a motion under § 2255, the prisoner need not be produced in court if the pleading raises only issues of law. 28 U.S.C. § 2255, Par. 3; Pollard v. United States, 352 U.S. 354, 357, 368-369, 77 S. Ct. 481, 1 L. Ed. 2d 393; United States v. Hayman, 342 U.S. 205, 222-223, 72 S. Ct. 263, 96 L. Ed. 232; Stephens v. United States, 10 Cir., 246 F.2d 607; Johnson v. United States, 6 Cir., 239 F.2d 698, 699. Note 69 Harv. L.Rev. 1289, 1299. And if the only issues are issues of law the prisoner has no valid Constitutional claim to have the court appoint counsel for him to argue those issues. United States v. Caufield, 7 Cir., 207 F.2d 278, 280. However, if a motion filed under § 2255 is valid as a matter of law, and if its allegations are not conclusively contradicted by what § 2255 calls "the files and the records of the case", then the prisoner is entitled to a hearing conducted in open court. United States v. Paglia, 2 Cir., 190 F.2d 445, 448. See United States v. Hayman, 342 U.S. 205, 222, note 37, 72 S. Ct. 263, 274, 96 L. Ed. 232. Clearly he is entitled to be present at such a hearing if he is prepared to testify as to relevant matters. United States v. Hayman, 342 U.S. 205, at page 223, 72 S. Ct. 263 at page 274. It seems he is entitled to be present, even if he is not going to testify, if "there are substantial issues of fact as to events in which the prisoner participated." Ibid. And a strong argument can be made for the prisoner's right to attend any hearing on issues of 808 fact, regardless of his personal participation or knowledge, and solely on the bases of his being able to confront witnesses, to ask his own witnesses questions, to cross-examine the government's witnesses, and to prompt his counsel, if he has one. United States v. Paglia, 2 Cir., 190 F.2d 445, 448. People v. Richetti, 302 N.Y. 290, 297-298, 97 N.E.2d 908, 911-912. See Ex parte Rosier, 76 U.S.App.D.C. 214, 133 F.2d 316, 325; Note 59 Yale L.J. 1183, 1187, note 19. But see contra: United States v. Jakalski, 7 Cir., 237 F.2d 503; Crowe v. United States, 4 Cir., 175 F.2d 799. Moreover, if there are issues of fact, an indigent prisoner, whose liberty of the person is at stake, may have by virtue not of the Sixth Amendment, but of the due process clause of the Fifth Amendment, a right to have the Court appoint counsel for him. Acc.: United States v. Paglia, supra. Contra: Crowe v. United States, supra. Up to this point the rights which I have concluded that a prisoner has in a § 2255 proceeding are entirely consistent with the view that it is a special civil proceeding. For each right so far specified, including the right to counsel and the right to be present during a hearing of evidence is a right which seems to exist in a habeas corpus proceeding which is admittedly a civil action. But it may be that the movant under § 2255 has rights never accorded in a civil action. The Supreme Court has held that on a hearing where his testimony is necessary the prisoner has a right to be brought to the sentencing court from another district by a writ like a writ of habeas corpus ad testificandum or prosequendum. United States v. Hayman, 342 U.S. 205, 221, note 35, 72 S. Ct. 263, 273, 96 L. Ed. 232. Perhaps the prisoner has a right to reach witnesses outside the district as though the case were a criminal case. Perhaps he has the right, if he is indigent, to invoke an analogy to Rule 17b of the Rules of Criminal Procedure, 18 U.S.C., in order to have the witnesses paid their fees by the government. Cf. 28 U.S.C. § 1825. But see contra: United States v. Lang, D.C.E. D.N.Y., 73 F. Supp. 558, 560. Cf. Miller v. United States, 317 U.S. 192, 197-198, 63 S. Ct. 187, 87 L. Ed. 179. See original papers in, Melanson v. O'Brien, D.C.D. Mass., 105 F. Supp. 527. That is, he might assert that so far as concerns witnesses or counsel the § 2255 proceeding is an adjunct to the criminal case. Without in any way deciding these doubtful matters, it is not inappropriate specifically to state that the questions they raise are not foreclosed by my ruling that for the purpose of docketing this case it shall be treated as a civil action. I turn now to the first question which is raised by Green himself. In his motion, Green conceded one fact which he recognized was a possible defect in his motion and which he argued should not be regarded as fatal. Green's concession is that the present motion is his second motion pursuant to 28 U.S.C. § 2255. On April 20, 1956 he filed in this Court a motion to vacate the same sentences here involved on the ground that due process of law under the Fifth Amendment was denied because the indictment submitted to the jury bore what he regarded as prejudicial indorsements. June 4, 1956, Judge Sweeney denied that motion. The Court of Appeals affirmed. Green v. United States, 1 Cir., 238 F.2d 400. Green argues that the present motion, despite the fact it attacks the same sentences as the motion filed two years ago, differs so in its thrust that it does not fall within the words of 28 U.S.C. § 2255 providing that "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." I accept the prisoner's contention that the grounds alleged in the motion before me are fundamentally different from those alleged in the motion before Judge Sweeney. And I conclude that under those circumstances the statute does not give me any discretion to refuse to entertain the new motion. Barrett v. Hunter, 10 Cir., 180 F.2d 510, 514-515, 20 A.L.R. 2d 965; Hallowell v. United States, 5 Cir., 197 F.2d 926, 928. 809 If the decisions in Dunn v. United States, 6 Cir., 234 F.2d 219, 221 and United States v. Brown, 7 Cir., 207 F.2d 310, 311 be to the contrary, in my view they are unsound. See Note 59 Yale L.J. 1183, 1188, note 24. Green, not being barred by his first motion under § 2255, has the right to have this Court scrutinize his present motion free of any prejudice due to the earlier pleading. But, as already pointed out, Green is not entitled to be present or to have a hearing in open court unless on its face his motion states in sufficient detail a valid ground for vacating his sentences. His detailed allegations must be such that if the details were proved and not contradicted, a court would be justified in setting aside the sentences under which he is now imprisoned. The Court now turns to a careful examination of the motion. The first part of Green's motion is without merit as a matter of law. If Roccaforte did commit perjury, and If Mr. Hassan knew that Roccaforte was committing perjury, Green knew both these facts at the trial. On these matters he has no new information of substance that he did not possess on the morning before he was set to the bar for trial. Where at his trial a defendant has knowledge that the prosecutor is knowingly using perjured testimony, and the defendant does not then raise the point, ordinarily he cannot later have an adverse judgment set aside on the basis of that prior knowledge. Taylor v. United States, 8 Cir., 229 F.2d 826, 833-834; Price v. Johnston, 334 U.S. 266, 291, 68 S. Ct. 1049, 92 L. Ed. 1356. A defendant's failure to assert at the trial a known defense is usually an abandonment or waiver of that defense. United States v. Morgan, 346 U.S. 502, 511, note 22, 74 S. Ct. 247, 98 L. Ed. 248; Jennings v. State of Illinois, 342 U.S. 104, 108-109, 72 S. Ct. 123, 96 L. Ed. 119; Ex parte Spencer, 228 U.S. 652, 659-660, 33 S. Ct. 709, 57 L. Ed. 1010; Note, 70 Harv.L.Rev. 827, 870, note 281. Green tries to overcome the rule just stated by alleging that his counsel Mr. Callahan collusively agreed with Mr. Hassan not to present to the Court the evidence that the prosecution was knowingly using perjured testimony. However, despite Green's use of the term "collusion", he does not allege with particularity facts leading to an inference of the grave charge of collusion. Taylor v. United States, 8 Cir., 229 F.2d 826, 832; Stephens v. United States, 10 Cir., 246 F.2d 607. All that appears is that Green's lawyer did not choose to press one of his client's contentions, and that the lawyer agreed with the prosecutor that it would be foolish to raise the contention. This is a far cry from the kind of professional misconduct which would "shock the conscience of the Court and make the proceedings a farce and a mockery of justice." United States v. Wight, 2 Cir., 176 F.2d 376, 379; United States v. Pisciotta, 2 Cir., 199 F.2d 603, 607. Even if the facts alleged in this branch of the motion could be proved, Green would not be entitled to have his sentences vacated. We now come to the third branch of Green's motion where he covers what he claims he learned after his trial. His allegation is that Bistany told one Mansour that he had made a deal with the United States Attorney to give perjured testimony. This allegation hardly states that Mansour heard Bistany say that the United States Attorney himself knew the falsity of the testimony subject to the asserted deal. Therefore on its face the allegation may be fatally defective. "It is clearly established that an appellant [or petitioner] must do more to void his conviction than to show the conviction was secured by perjured testimony. He must also show that the prosecution used such testimony knowingly." United States v. Rutkin, 3 Cir., 212 F.2d 641, 643. But whether or not the allegation be defective, [see Rutkin's case, just cited, at page 644, par. 7] Mansour's statement about Mr. Hassan's alleged knowledge is the rankest hearsay. Such hearsay unsupported by specific references to competent, relevant, and material supporting *810 evidence does not entitle a prisoner to a hearing. Johnson v. United States, 6 Cir., 239 F.2d 698, 699. For even if the hearsay were offered a court would not be justified in basing upon it an order vacating a criminal sentence. Taylor v. United States, 8 Cir., 229 F.2d 826, 833. The motion in all its parts as well as in its entirety being without merit on its face, the motion is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371878/	101 Ga. App. 383 (1960) 114 S.E.2d 145 ANDREWS TAXI & U-DRIVE-IT COMPANY v. McEVER, by Next Friend. 38212. Court of Appeals of Georgia. Decided March 18, 1960. Rehearing Denied March 31, 1960. 387 Fullbright & Duffey, Henry J. Fullbright, Jr., for plaintiff in error. Wright, Rogers, Magruder & Hoyt, Robert G. Walther, Robert J. Reed, contra. TOWNSEND, Judge. 1. Error is assigned on the following excerpts from the charge: "In passing upon the weight, force and credit to be given to the evidence in the case, and in determining the credibility of the witness sworn, and in determining where the preponderance of evidence lies, you may and should consider all the facts and circumstances in the case; the witnesses' manner of testifying; their intelligence; their means and opportunity of 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; also their personal credibility insofar as the same may legitimately appear to you from the trial of the case. To the parties in the case, the case itself, or the results of the case all these matters and things are legitimate subject matters to be considered by you in passing upon the weight, force, and credit to be given to the evidence in the case and in determining where the preponderance of evidence lies, insofar as these matters and things may legitimately appear from the consideration of the evidence adduced upon the trial." (Emphasis added.) (a) The first sentence, except for the italicized portion, is in the language of Code § 38-107 relating to the preponderance of evidence. It is not error to apply the rules stated therein to an 384 instruction on the means for determining the credibility of witnesses. Reece v. State, 208 Ga. 165 (6) (66 S.E.2d 133). See also Martin v. Waltman, 82 Ga. App. 375 (61 S.E.2d 214). (b) The contention that the charge is error because not in the exact language of Code §§ 38-106 and 38-107 is also without merit. While the court referred to the "weight, force and credit to be given to the evidence," preponderance, by definition, means the superior weight of the evidence. Code § 38-106. Where these sections are charged substantially in the language of our Code, this is sufficient, providing no greater burden is put upon the movant than that provided by law. Davis v. Wright, 194 Ga. 1 (3) (21 S.E.2d 88); U. S. Fidelity &c. Co. v. Toombs County, 187 Ga. 544 (9g) (1 S.E.2d 411). The court did not err in referring to the preponderance of evidence as the weight, force and credit to be given to the evidence. (c) The second sentence, which is the subject matter of special ground 2, might standing alone seem subject to the criticism leveled against it, which is that the court was in effect instructing the jury that they might consider the parties to the case, that is, a corporation on one side and a young boy appealing to their sympathy on the other, and thus be swayed by sympathy or prejudice rather than by the evidence in the case. However, read in its correct position in the charge of the court, immediately following the instruction as to the preponderance of evidence, it appears that the court was applying the components of the preponderance of evidence rule to the parties themselves, to the case itself, and to the result to be effectuated. It does not seem probable that the jury would take the language to mean otherwise, especially where, in the same sentence, they were limited to a consideration only of those things which might legitimately appear from the evidence adduced. These grounds are without merit. 2. Special ground 3 complains that the instruction as follows: "A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers" was error for the reason that the court did not charge in connection therewith that a carrier "is not liable for injuries to them after having used such diligence." Code § 18-204. "An exception to an admittedly correct extract from the charge of the court, upon the ground that the court erred in giving it in charge, because 385 the court failed, in the extract quoted or elsewhere in the charge, to give additional instructions, presents no ground of error, and is therefore without merit." Payne v. Young, 27 Ga. App. 370 (4) (108 S.E. 312). 3. It was not harmful error to charge that extraordinary diligence is "that extreme care and caution which every prudent and thoughtful person exercises under the same or similar circumstances," although Code § 105-202 uses the language "very prudent and thoughtful persons." It is error to so instruct the jury as to place a burden upon the defendant greater than that imposed by law, and where the court charged that this burden was to use the "utmost care and diligence" the language was held error, on the ground that even very thoughtful and prudent persons may not use the absolute of utmost diligence used by the most thoughtful person in the world, although they use that diligence exhibited by very prudent and thoughtful persons. East Tenn. V. & G. Ry. Co. v. Miller, 95 Ga. 738, 741 (22 S.E. 660). At the risk of engaging in dialectics, it seems logical to say that, where the standard is the diligence of very thoughtful persons, and where utmost diligence is greater than the standard, the diligence of every prudent and thoughtful person is, if anything, less than the standard, for it includes the degree of diligence of all prudent and thoughtful persons, whether or not they reach the comparative form of very prudent and thoughtful persons or the superlative of the most prudent and thoughtful persons. No reversible error is shown in special ground 4 as against the defendant. 4. Error is assigned in ground 5 on the following excerpt from the charge: "The law provides no person shall drive a vehicle on a street or highway at a greater speed than is reasonable and prudent under the condition once having regard to the actual and potential hazards then and there existing," it being urged that the court misled and confused the jury by charging as negligence per se the violation of a statute not raised by the pleadings or evidence. The charge is abstractly correct, being substantially in the language of Code (Ann.) § 68-1626(a). It was impliedly invoked by that part of the petition which alleged that the defendant was guilty of negligence per se in operating the automobile at the speed of 40 miles an hour, no other reason being shown by the petition as 386 to why such speed should be in excess of the speed limit, no city ordinance having been pleaded, and no demurrer having been interposed to the allegation. There was evidence of hazard in that some witnesses testified that the collision occurred in a heavy downpour of rain when visibility was much impaired. The charge as given was equally applicable to the driver of the defendant's taxi or the driver of the automobile with which it collided and whose negligence the defendant contended proximately caused the injuries. The defendant, by failing to demur to this allegation of the petition in the first instance or to object to the evidence introduced thereafter waived his right to object to the charge on the ground that it was not adjusted to the pleadings and evidence. Whatley v. Henry, 65 Ga. App. 668 (16 S.E.2d 214); Kelly v. Locke, 57 Ga. App. 78, 89 (194 S.E. 595). 5. A passenger in a taxicab is under no duty to supervise the driver thereof or to instruct him in the manner in which he drives unless he has reason to distrust the diligence of the driver in respect to such matters. East Tenn., V. & G. Ry. Co. v. Markens, 88 Ga. 60 (3) (13 S.E. 855, 14 L. R. A. 281). Where, as here, the plaintiff contended that his injuries were due solely to the negligence of the driver of a taxicab in which he was riding as a passenger, and the defendant contended that the negligence of the driver of an approaching automobile was the sole proximate cause of the injuries, there was no issue as to the negligence of the plaintiff, and the evidence divulged no negligence on the part of the plaintiff, or of comparative negligence as between the plaintiff and the defendant. The court therefore correctly omitted to charge on the subject of comparative negligence and diminution of damages. Bain v. Athens Foundry &c. Works, 75 Ga. 718 (3). The first sentence of Code § 105-603 dealing with contributory negligence of the plaintiff sufficient to bar recovery was charged by the court and, while it ought not to have been, this was not harmful as against the defendant. Savannah, F. & W. Ry. Co. v. Godkin, 104 Ga. 655 (3) (30 S.E. 378, 69 Am. St. Rep. 187); Mayor &c. of Macon v. Humphries, 122 Ga. 800 (5) (50 S.E. 986). Special grounds 6 and 7 are also without merit. The trial court did not err in denying the motion for new trial. Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1371908/	216 Ga. 15 (1960) 114 S.E.2d 431 WALKER v. THE STATE. 20854. Supreme Court of Georgia. Argued April 11, 1960. Decided May 5, 1960. James H. Phillips, Robert L. Vining, Jr., for plaintiff in error. R. F. Chance, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra. CANDLER, Justice. Cecil Walker and Marvin Walker were jointly indicted in Whitfield County for the murder of Oscar Parks. Cecil Walker was convicted of the offense charged without a recommendation, and was sentenced to be electrocuted. The exception is to a judgment denying his amended motion for new trial. Held: 1. Since the evidence was amply sufficient to support the verdict, there is no merit in the general grounds of the motion for new trial. See Walker v. State, 215 Ga. 128 (109 S.E.2d 748), which is a prior appearance of this case. 16 2. One of the special grounds of the motion alleges that a new trial should be granted movant because the bailiffs who were placed in charge of the jury for two nights during the trial did not keep the jurors together nor remain with them at all times, as they were required by law to do, which fact was unknown to the movant or his counsel until after the rendition of the verdict against him. As proof of this allegation, such bailiffs by separate affidavits testified that they had charge of the jury for two nights during the trial of movant; that they took them to the Hotel Dalton, where rooms were procured for them; that from two to four jurors were placed in a room, but on separate floors of the hotel; that they (the bailiffs) secured a different room for themselves, where they slept during the night; and that they and the jurors, according to previous arrangement, assembled in the lobby of the hotel on the following mornings. The movant and his counsel by affidavits testified that they had no knowledge of such separation and supervision of the jury until after the case was concluded by verdict. As and for its only counter-showing, the State introduced an affidavit from all of the jurors whereby each testified that half of the jurors occupied rooms on the second floor of Hotel Dalton and the other half had rooms on the fourth floor of the same hotel; that one court bailiff had charge of the jurors on the second floor and a different bailiff was placed in charge of those on the fourth floor. Each juror testified that nothing transpired in the hotel on either night they were quartered there which affected or influenced him in any way in reaching the verdict returned in the case; that the case was not discussed or considered by the jury during the periods they were quartered in the hotel; and that no one discussed or attempted to discuss the case with him or any other member of the jury at any time while they were so quartered. Their affidavit is completely silent as to whether or not they were constantly attended by a bailiff or bailiffs while so quartered. In these circumstances, and following the rulings in Blount v. State, 214 Ga. 433 (4) (105 S.E.2d 304), and Allen v. State, 215 Ga. 455 (1) (111 S.E.2d 70), it must be and is held that the jury, during the periods mentioned above, was not kept together and attended by a bailiff or bailiffs in the manner required by law, and such non-compliance with the law requires this court to order a new trial. In the Blount and Allen cases, supra, the State made a counter-showing very 17 similar to the one made in this case, but, as this court there held, such a showing does not satisfy the requirement that the jury be kept together and that the bailiff placed in charge of the jury remain with them and stay awake at all times while he has charge of them. 3. Over an objection, timely made by counsel for the accused, that they were prejudicial in nature, highly inflammatory, not illustrative of any issue involved in the case and with but little variation of detail, the court permitted the solicitor-general to introduce in evidence several photographs of the deceased which were taken soon after his death. The court also allowed the solicitor-general to introduce in evidence two pistols over an objection that they had not been properly connected with the commission of the offense for which the accused was being tried. We see no error in this. The indictment alleges that this defendant and Marvin Walker killed the person named therein (Oscar Parks) by shooting him with a pistol. The photographs show several pistol-shot wounds on the body of the deceased and the location of each, and an expert witness for the State testified that the wounds so depicted were the direct cause of Mr. Parks' death. As to the pistols allowed in evidence, a witness for the State testified that the accused (Cecil Walker) freely and voluntarily stated to him that he shot the deceased with one of the pistols and that Marvin Walker shot him with the other one. (a) Both as to the photographs and the two pistols which were allowed in evidence, it was not erroneous, as the movant contends, for them to be sent out with the jury as a part of the State's evidence and remain with the jury during its deliberation of the case. 4. Another special ground alleges that the trial judge erred in charging the jury on confessions of guilt, the contention being that such a charge was unauthorized by the evidence which the State introduced on the trial. To this we do not agree. Respecting such contention, the evidence shows: That the accused and his co-indictee each freely and voluntarily stated to the Sheriff of Whitfield County and one of his deputies that they were traveling north in an automobile and stopped about 5:15 a. m. at a filling station out of Dalton, Georgia, where the deceased worked. They were out of money and gasoline. They asked the deceased to fill their tank with gasoline, which he did. While he was servicing their car, they planned to rob 18 him. After the tank was filled, they pointed a pistol at him, seized him, threw him in their car and drove away. They proceeded north for a few miles and turned off on a side road which led to a mill pond. They parked their car on a ramp at the mill pond. There they robbed him, taking all of the money he had on his person, and one of them hit him on the head with a pistol, thereby inflicting a severe wound. They then tied his hands behind him with his belt and pushed him off the ramp into the mill pond. Each then began to shoot him with a pistol and continued to do so until he sank into the water. They then divided his money equally between themselves and went on to Cleveland, Ohio, where they were later arrested. The evidence also shows that the body of the deceased was found in the mill pond a few hours after the killing with his hands still tied behind him. An autopsy revealed that he was shot three times, one bullet struck him in the temple and went straight through his brain. On his trial the defendant made the following statement to the jury: "I had been driving all night that night and it had wore me out, I couldn't think what I was doing until it was too late; until I realized what I had done then I couldn't go back and straighten myself out, I know I hate the thing as bad as anybody do, because I couldn't think at the time I was doing this; I just couldn't think what I was doing. I know a lot of boys makes mistakes, and some of them makes mistakes like this and some of them don't, but I know what I done, I just couldn't think at the time I was doing it, though, and I ask you all for the mercy of the court; have mercy on me, give me a chance." The State's evidence and the defendant's statement to the jury each authorized the charge complained of. See Weatherby v. State, 213 Ga. 188 (97 S.E.2d 698), and the several cases there cited, which hold that a charge on confessions of guilt is authorized when the accused has freely and voluntarily admitted the commission of the act which produced the death of the person killed, and in connection therewith stated no facts or circumstances showing excuse or justification for the homicide. (a) A confession of guilt freely and voluntarily made without any hope of reward or the remotest fear of punishment by one accused of crime is not rendered inadmissible against him simply because he was then in custody and had not been furnished counsel before such statement was made by him. 19 5. Since the remaining special grounds of the motion for new trial do not raise questions which are likely to occur on the next trial, it is not necessary to deal with them. But for the reason stated in division 2 of the opinion, the court erred in denying movant a new trial. Judgment reversed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1098141/	782 So.2d 52 (2001) STATE of Louisiana v. Francis BRAUNER. No. 99-KA-1954. Court of Appeal of Louisiana, Fourth Circuit. February 21, 2001. Rehearing Denied March 30, 2001. 56 Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee. Marcia A. Widder, Richard C. Teissier, New Orleans, LA, Counsel for Defendant/Appellant. Court composed of Judge BAGNERIS, Judge KIRBY, and Judge GORBATY. BAGNERIS, Judge. STATEMENT OF THE CASE By grand jury indictment dated January 8, 1998, defendant was charged with one count of aggravated rape, one count of forcible rape, and one count of aggravated crime against nature. He pleaded not guilty; and, on November 30, 1998, a twelve-member jury that found him guilty of forcible rape on the aggravated rape count and guilty as charged on the other two counts tried him. On May 3, 1999, defendant filed a motion for new trial that was denied by the trial court; and, the trial court sentenced defendant to forty years at hard labor without benefit of parole, probation, or suspension of sentence on the two forcible rape convictions and to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on the aggravated crime against nature count. The sentences were to run concurrently with each other. The trial court denied defendant's motion for reconsideration of sentence. STATEMENT OF THE FACTS Detective Pearla Gibbs testified that on April 14, 1997, she was assigned to investigate a report of rape received via an anonymous phone call. She stated that she had received a phone call from a woman who said that her daughter had told her that the daughter's good friend had been raped. Detective Gibbs further stated that she got the names of the parties involved from the caller, whom she identified as Patty Partland. Detective Gibbs testified that before she and a worker from Child Protection went to Ms. Partland's house, she called the victim, who told Gibbs that her mother was at work and that her stepfather, who was the accused, was at a funeral. Gibbs interviewed Ms. Partland and then went to the victim's home. She stated that the victim's mother 57 met her at the door and that she heard a male voice saying, "Just telling truth." Gibbs further stated that she then saw defendant with his arm around the victim, who was crying. She ordered them to separate; and, Miss Guise, the worker from Child Protection, took the victim to the side while Gibbs sat with defendant and his wife in the kitchen to explain why she was there. Gibbs then went to speak with the victim who was upset and crying. The victim told Gibbs that she did not want defendant to go to jail and that she did not want to cause trouble between him and her mother. After interviewing the victim, Gibbs read defendant his rights and placed him under arrest. Dr. Khouri Anas testified that on April 29, 1997, she examined the victim, who was thirteen years old. She further testified that the victim told her that the last incident of sexual abuse had been a month earlier and that there had been several other incidents of vaginal penetration as well as anal penetration. Dr. Anas testified that her examination showed that the victim's hymen was still present and that it was thickened, irregular, and redundant, which she said was the type adolescents mainly had. She stated that because of the secretion of puberty hormones, the hymen grows and makes what she described as a cauliflower shape and which she called redundant. She also stated that the opening in the victim's hymen was within normal limits. Dr. Anas testified that because the hymen is elastic, she could not tell just from the examination if it had been traumatized. She also found that the victim's rectal area was normal. Dr. Susanne Tropez-Sims was qualified as an expert in child sexual abuse, and she testified that there was a scale, which went from one to five, called Tanner Development to determine a child's genital development. She stated that the victim was a Tanner Four, which meant that she would have the effects of estrogen thickening her vagina and causing her hymenal tissue to have a paler appearance. The victim would also have a thin, milky discharge, called leukorrhea, and pubic hair over her genital area. Dr. Tropez-Sims reviewed the victim's colposcope photographs, and she described the victim's hymen as a denticular hymen, which went all the way around, and that it was estrogenized. She stated that the victim's hymen had a lot of folds or extra skin and that a denticular hymen would show fewer signs of injury than would a crescentic hymen. She further stated that because of the extra folds, it might allow more penetration although it can also tear. When asked about the healing powers of an estrogenized hymen, Dr. Tropez-Sims replied that whether it is estrogenized or not, the genital area heals within forty-eight hours unless there are really deep tears. She also stated that the rectum heals very fast and that if there is a delay in reporting, there would be no physical findings. Patty Partland testified that her daughter Meredith was a good friend with the victim and that on April 13, 1997, Meredith told her something that concerned her. Ms. Partland further testified that she then called a crisis hotline to report that a child was being sexually abused. She said that she was given another number to call which she did the next morning and was asked to take the victim to the NOPD at 3:30 p.m.; but, at 11:30 a.m., a police officer, Al Hines, came to her house to ask about another neighbor who was going to be a police officer. Ms. Partland said that she spoke to Hines about the neighbor and that she also told him about what Meredith had told her. She stated that she and Meredith spoke on the telephone to Detective Gibbs around 12:30 or 1:00 p.m. She again arranged to take the victim to the police at 3:30, but Gibbs called her back to 58 find out where the victim went to school and the time she got out of school. When she told Gibbs that the victim got out at 1:50, Gibbs told Ms. Partland that she would come out to get the victim. Ms. Partland stated that between the two phone calls with Detective Gibbs, she got a call from the victim, who said that she had received a phone call that the police were on their way because it had been reported that she had been sexually molested. Ms. Partland further stated that the victim was crying and said that defendant was going to hurt her. She said that she then heard the victim's mother come into the room and start screaming at the victim. She also heard the phone beeping, and she said that the victim told her that it was the defendant calling. The victim again stated that defendant was going to hurt her, and Ms. Partland heard the phone beep again. The victim told her that it was defendant screaming at her not to tell. Ms. Partland saw defendant drive into the neighborhood, park his truck, and run into his house. She saw him come back out to his truck and then go back into his house. Ms. Partland saw the police arrive, and she directed them to defendant's house when they appeared to be lost. She testified that Meredith had told her that the victim was being molested and that defendant would make the victim dance for him while he put money in her underwear. Ms. Partland also testified that Meredith said that the victim told her that she and defendant had had sexual and oral intercourse several times. She stated that two weeks after defendant's arrest, Meredith told her that defendant had tried to get her to change clothes and tried to "do something" to her. Meredith Partland testified about telling her mother what she had been told by the victim about being molested by defendant. She stated that when Officer Hines came by her house to ask about the neighbor who was to be police officer, she told him what she had been told by the victim. She said that she then spoke on the phone with Detective Gibbs about the matter. Meredith testified that when the victim came home from school, the victim called her and that she then went over to the victim's to get some makeup she had left there. Meredith said that she only stayed a couple of minutes and that the victim and her baby brother were the only ones there. After she returned home, Meredith got a phone call from the victim who asked her who had reported that defendant had been molesting her. Meredith said that she did not say anything and handed the phone to her mother. Meredith testified that when the victim had told her about the molestation, the victim asked her not to tell anybody because she did not want anything to happen to her little brother and her mother and that she knew defendant would be very upset and mad at her. Meredith said that she decided to tell her mother about it because she knew it was wrong and that the victim would be living in misery until she would be able to move out. She also stated that the victim told her about it on April 3 when she was staying at the victim's house along with another girl named Ashley. She said that Ashley left before it got dark and that the victim told her that defendant needed to talk to them about something. Meredith and the victim sat in the living room where defendant told them to be careful around boys and sometimes that the only thing they wanted was sex. Meredith testified that defendant then told them that they needed lessons from a "real man" and that he told her not to tell her father. He asked who wanted to go first, and Meredith told him that she would. He told her that the first lesson would be "lickety-split" and that she and the victim were to go to the victim's room, takes off all their clothes, and put on white 59 T-shirts. Meredith testified that she told defendant that she was comfortable as she was and that she and the victim went to the victim's room where the victim proceeded to tell her what had been going on. She said that because the victim's mother then came home from work, she felt comfortable in staying overnight. Meredith testified that the victim told her that defendant would lick her breasts and vaginal area and that he had been doing that since she was eight years old. She further testified that the victim told her that while living in a blue house on an island, defendant would have her model in her panties and that he would put money in her panties. Meredith stated that the victim also told her that defendant had had sex with her at a camp owned by Ronnie Bodenheimer, at a brown and white house where she lived for a while, and at two different apartments the family lived in after the brown and white house burned down. She also told Meredith that defendant had used a condom a couple of times and that he would ejaculate into a face rag. On cross-examination, Meredith testified that she asked the victim what "licketysplit" meant and that the victim told that it was when "a man licks your vaginal area." Meredith further testified that she asked the victim why defendant asked her to do that and that the victim replied that he was always doing that her. She said that she waited ten days to tell her mother because she did not know what to do. The victim testified that her birth date was March 19, 1984, and that she first met defendant when she was seven years old. She further testified that after her mother married defendant, they lived in her grandmother's house on an island near Venetian Isles. She said that they then moved to a blue house on the island and that while they lived there, defendant had her model for him. She also said that defendant had her take off her shirt while she modeled and that he put money in her underwear. She stated that defendant told her that he wanted her to be a stripper when she got older. The victim testified that defendant had also gotten into the shower with her and started bathing her. She said that he asked her to bathe his private parts, but she refused to do so but did wash his back and front. She also said that he told her not to tell her mother because he did not want anything to happen between them. The victim testified that two or three weeks after this incident, defendant took her to Ronnie Bodenheimer's camp which was eight or nine houses down from the blue house. She said that he told her was going there to get a fishing pole and that he took her into a back room where there was a bed. She stated that he told her to take off her clothes, but she only removed her pants. He made her lie on the bed and then placed his mouth on her breasts and vagina. She stated that he then put his penis in her vagina. She told him that it hurt and asked him to stop, which he did. She testified that nothing more happened for some time and that her family moved out of the blue house and into a beige and white house across from the marina. She further testified that after they moved into the new house, defendant told her to stay home from school and watch her newborn baby brother while her mother drove her older brother to school. She stated that defendant came into the bedroom where she was watching the baby and that he started rubbing on her private parts. She said that he then pulled down her panties and put his penis in her vagina. She said that he did the same thing to her in her brother's bedroom where he would look out of the window to see if her mother or anyone else was coming from the marina. She stated that defendant also had anal sex with her, but he stopped when she told 60 him it hurt her. The victim testified that they lived in that house until it burned, which she believed happened when she was eleven years old. She said that they moved into an apartment and that there was a mattress on the living room floor because it would not fit up the stairs. The victim stated that defendant would make her watch porn films on television and that he told she would be like one of those people. She stated that while she was on the mattress, he would kiss her breasts, rub on her, and put his penis in her. She stated that they then moved to another apartment and that when she had her first period, defendant had taken her upstairs to his bedroom where they had sex. She said that afterwards, defendant looked at his penis and told her get into the tub because she had started her period. The victim testified that just before her birthday in 1997, her mother and defendant were at the marina while she babysat her brother. She stated that she had been sleeping on the sofa when defendant came in and starting "feeling on" her. She stated that she told defendant to get off of her, but he took her and put her in her bed where he removed her jeans. She further stated that he pulled her to the end of the bed but she scooted away in order to get him to leave her alone. She said that he smelled of alcohol and that he kept trying to get his penis inside her but could not. She said that he finally left her room. The victim told of another incident in which defendant asked to see her breasts; and, when she refused, he told her that he would leave her alone if she showed them to him. She showed him her breasts and then went to her room. The victim also testified about the circumstances surrounding the night she told Meredith what had been happening. She said that she, Meredith, and Ashley had been in her room listening to the radio and playing Nintendo when defendant told her it was time for Ashley to go home. She walked Ashley to the corner and returned home where defendant called her and Meredith into the living room. She testified that defendant said that her mother wanted him to talk to them about boys in the neighborhood and why he did not want her to have a boyfriend. She said that defendant told her and Meredith that the boys in the neighborhood had AIDS and then looked at Meredith's feet. She said that he asked her if she remembered when her feet were as small as Meredith's and then said that he wanted to teach them a lesson. He told them that the first lesson would be "lickety-split" and asked to go put on white T-shirts with nothing underneath. The victim said that Meredith told defendant that she was comfortable as she was and that they both then went to her bedroom. The victim locked the door to her bedroom, and she told Meredith what had been going on with defendant. She said that her mother then came home and that defendant came through the bathroom door into her bedroom and said, "Good job, girls." The victim testified that Meredith was the first person she told. The victim testified that she received a phone call from Detective Gibbs when she was at home babysitting her little brother while her mother was at the marina and defendant was at a funeral. She stated that Detective Gibbs said that there was report of a rape and that she told Gibbs that she had the wrong number. The victim then called her mother who told her to press Star 69 to get the number. She did so and called back her mother to give her the number. She testified that she again spoke to her mother on the phone who asked her if the defendant had been molesting her. The victim told her mother "No," because she did not want anything to happen to them and to have her little 61 brother taken away from her. She then got a call from Ms. Partland who tried to reassure her; and while she was on the phone with Ms. Partland, defendant kept "beeping in." When she switched over, defendant asked her what she was going to tell the police; and, she told him that she was going to tell the truth. He then asked her, "Well, did I rape you?" She replied, "Yes;" and, when he asked her if that was what she was going to tell the police, she again said, "Yes." The victim testified that she clicked back over and told Ms. Partland that it was defendant, and Ms. Partland told her not to click over again. She further testified that her mother then came into the house and started cursing at her. Her mother took the phone from her and said that she needed to talk to her daughter. The victim testified that they sat down at the kitchen table and that her mother told the victim that it had happened to her when she was little. She stated that she told her mother, "Yes," when her mother asked if defendant had been molesting her. The victim said that defendant arrived about five minutes later. Her mother again asked her if defendant had molested her, and she again replied in the affirmative. She testified that defendant said, "[Victim], how could you do this to me?" She said that she was told that what he had been doing was wrong and that she was going to be examined, so she could not lie about it. She stated that as she heard Detective Gibbs walking up the stairs, defendant tried to hug her and told her, "Don't say nothing. Don't say anything. It's okay. It's between me and you only." On cross-examination, the victim admitted that when she first spoke to Detective Gibbs, she did not tell Gibbs all of the things about which she had just testified. The victim admitted telling Gibbs that defendant had promised her a trampoline for her birthday if she would let him have sex with her one more time; and, she stated that she did not have sex with him and did not get the trampoline. She denied being mad about not getting the trampoline and telling Gibbs that she was mad at defendant for not getting her the trampoline after she let him do "something" to her. She was asked about her not being allowed to wear certain clothing and makeup and about not being allowed to talk to boys on the phone. Elsie Yancey testified that she had known defendant and his family for many years and lived next to the marina where defendant and his wife worked. She further testified that on the date that defendant was arrested, she went with him to a wake and that she heard an argument between him and the victim as she walked to his truck. She stated that if defendant was not working at the marina, he was out hunting or doing errands for the marina. Hugh Yancey testified that he had known defendant most of his life and that it was not often that defendant would not be at the marina. He further testified that it was defendant who usually closed the marina. He also testified that defendant's wife may have closed it on occasion. Fran Lee Brauner, defendant's sister, testified that she and her family lived with defendant, the victim, her mother, and her older brother in the blue house; and, she said that there was not much privacy in that house. She also said that there were always people around the house. She further testified that her brother and his family lived in the house for a few months before she and her family moved in with him. Crystal Hennesey, another sister of defendant, testified that she saw her brother and his family quite often and that she worked with him and his wife at the marina from April 1994 to June 1995. She 62 further testified that she and defendant were at the marina most of the time when it closed and that defendant's wife was sometimes there. She stated that it was not very often that defendant's wife would be there while defendant was gone. William Lyncker testified that he had known defendant for eight years and that defendant was at the marina every morning at 5:00 a.m. He also testified that at closing time, he saw defendant more than his wife at the marina and that when he saw defendant's wife, the children were there as well. Larry Orth testified that he and defendant had been friends for six years and that most of the time, defendant closed the marina. He further testified that when he was at the marina, defendant was there also. Kenneth Wilkerson testified that he had known defendant for ten years and that he spent time hunting and fishing with defendant. Defendant testified and denied the victim's allegations against him. He stated that on the day he was arrested, he went to pick up the victim from school before going to a funeral; and, that she asked him to pay her for work she and Meredith had done around the marina the previous day. Defendant testified that he told her that she had not done any work and that all she and Meredith had done was run around and play with the boys. He said that the victim got angry about it and asked why she could not have a boyfriend or wear makeup. He told her that he was fed up and that when he came back from the funeral, he was going to have a talk with her, her mother, Meredith, and Meredith's mother. Defendant stated that when they got home, she started screaming at him; and he ordered her to go upstairs. He stated that while he was at the funeral, his wife called him and told him about a phone call from the police telling her that the victim had been molested. He said that as he drove home, he called on his car phone; and, when the victim answered, he asked her what was going on. She told him that nothing was going on; and he then asked her who had touched her. He testified that she told him that he was the one and that Ms. Partland and her daughter Keely were on the phone telling her what to tell the police. After that call ended, he called his wife at the marina to tell her about the victim's accusations. When he got home, the victim told him that she was going to get "tested for sex." He then asked her if she knew what would be done to him; and, he testified that she replied, "Well, if I tell the truth, all my friends will know I'm lying and then I won't have no friends left." Defendant further testified about various arguments he and the victim had had about her using the phone too much and getting too many pages on her beeper. He also testified about arguments concerning her use of makeup and having boyfriends. Defendant admitted on cross-examination that there were times when he and the victim were alone at home while her mother was out. P.B., the victim's mother, testified that on the day defendant was arrested, she received a phone call from the victim telling her that someone had called. P.B. stated that she called the number her daughter gave her and talked to a detective who told her that her daughter had been molested. She related the phone calls between her and defendant about the victim's accusations against defendant. She testified that she then went home and found the victim on the phone with Ms. Partland. She got on the phone with Ms. Partland to ask why Ms. Partland had not called her. She said that she hung up when Ms. Partland started yelling at her. P.B. testified that when she questioned the 63 victim, the victim seemed confused and did not know what story to tell her. She testified that on those occasions when she closed the marina by herself, defendant was probably out with his friends. Ronald Bodenheimer testified that he and defendant had been partners in the marina at Venetian Isles. He stated that he went to the marina at least once a month and that sometimes defendant would be there. He stated that defendant had the keys to his camp. DISCUSSION ERRORS PATENT A review of the record reveals an error patent. The trial court imposed sentence without observing the twenty-four hour delay set forth in La.C.Cr.P. art. 873, and there is no indication in the record that defendant waived the delay. Failure to observe the delay is harmless where the defendant does not complain of his sentence on appeal. State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991). Defendant is complaining about his sentence in the present case; hence, this case should be remanded for resentencing. State v. Augustine, 555 So.2d 1331 (La.1990). There are no other errors patents. ASSIGNMENT OF ERROR NO. 1 In his first assignment of error, defendant complains that there is insufficient credible evidence to support the convictions. The standard for reviewing a claim of insufficient evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact after could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473. The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988). Additionally, the court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id. The trier of fact's determination of credibility is not to be disturbed on appeal absent an abuse of discretion. State v. Cashen, 544 So.2d 1268 (La.App. 4th Cir.1989). La. R.S. 14:41 defines rape as an act of anal or vaginal intercourse with a male or female person committed without the person's consent; and, emission is not necessary and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime. The essential elements of forcible rape are: (1) an act of vaginal or anal intercourse; (2) without the lawful consent of the victim; (3) where the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. La. R.S. 14:42.1(A)(1); State v. Atkins, 97-1278 (La. App. 4 Cir.5/27/98), 713 So.2d 1168. Aggravated crime against nature is crime against nature committed when the victim is under the age of seventeen and the offender is at least three years older than the victim. La. R.S. 14:89.1(A)(6). La. R.S. 14:89 define a crime against nature as the unnatural carnal copulation by a human being with another of the opposite sex. It appears that the State presented sufficient evidence to support the convictions. Clearly, the jury believed the 64 testimony of the victim over that of defendant. Her testimony was essentially consistent about the places where the acts of sexual abuse occurred. The jury did not abuse its discretion in its credibility determination. This assignment of error is without merit. ASSIGNMENT OF ERROR NO. 2 In his second assignment of error, defendant complains that he received ineffective assistance of counsel. Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief to be filed in the trial court where an evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 (La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Kelly, 92-2446 (La.App.4Cir.7/8/94), 639 So.2d 888, writ denied 94-2087 (La.1/6/95), 648 So.2d 921. The present record is sufficient to evaluate the merits of defendant's claim. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel's performance was deficient and that deficient performance prejudiced him. With regard to counsel's performance, the defendant must show that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial, i.e. a trial whose result is reliable. Id. 466 U.S. at 687, 104 S.Ct. at 2064. Both showings must be made before it can be found that the defendant's conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id. A claim of ineffective assistance may be disposed of on the finding that either of the Strickland criteria has not been met. State v. James, 555 So.2d 519 (La.App. 4th Cir.1989), writ denied 559 So.2d 1374 (La. 1990). If the claim fails to establish either prong, the reviewing court need not address the other. Murray v. Maggio, 736 F.2d 279 (5th Cir.1984). If an error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. State v. Bienemy, 483 So.2d 1105 (La.App. 4th Cir.1986). Moreover, hindsight is not the proper perspective for judging the competence of counsel's decisions because opinions may differ as to the advisability of a tactic; and, an attorney's level of representation may not be determined by whether a particular strategy is successful. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). Defendant's primary complaint is that his trial counsel did not use the victim's testimony from the Prieur hearing to impeach her trial testimony. He asserts that counsel's failure to do so was gross incompetence. First of all, this appears to be a strategic decision because defense counsel cross-examined the victim in an effort to establish a motive for her to fabricate the molestation accusations and presented defense witnesses to establish that defendant and the victim would not have been left alone while the victim's mother was closing the marina for the night. Moreover, a comparison of the victim's hearing testimony with her trial testimony does not support this claim. His first claim of inconsistency is with regard to the victim's testimony about her "modeling" for defendant and her stating at trial that 65 defendant asked her to take her shirt off because he wanted her to be a stripper, whereas at the hearing the victim stated that defendant asked her if she wanted to be like the models on television. This is a relatively trivial difference and does not conflict with the thrust of the victim's testimony that the defendant had her model for him while clad only in her underwear into which he put money. The second alleged incidence of inconsistency concerns the victim's testimony about defendant's getting into the shower with her. At the trial, she stated that he got into the shower with her, while at the hearing she testified he made her get into the shower with him. Again, this inconsistency does not change the essential facts underlying the victim's testimony, namely that defendant forced her to shower with him. Defendant's third instance of alleged inconsistency-concerned defendant's being drunk and coming into the victim's bedroom early in the morning. At the hearing, she testified that her mother was out but she did not know where; but at trial, she stated that her mother was at the marina. Also, the victim testified at the hearing that defendant put his penis in her vagina; while at trial she testified he tried to but did not succeed in putting his penis in her vagina. This inconsistency could very well be due to the passage of time, and defense counsel may very well have not thought it significant enough to rise during the victim's cross-examination. Defendant also argues that trial counsel was incompetent for not presenting expert medical testimony concerning the lack of physical evidence of sexual abuse. This does not appear to be a basis for a finding of incompetent counsel because trial counsel had both Dr. Anas and Dr. Tropez-Sims concede that the findings of the examination of the victim were consistent with a normal girl of the victim's age. Defendant's third claim of ineffective assistance concerns his trial counsel's squandering his eleventh peremptory challenge on a juror removable for cause. During voir dire, Jacqueline Bullock testified that she had had three friends who had been raped by strangers. She stated that it would affect her ability to be a fair and impartial juror, but she said that she would try to be as fair as she could. She responded in the affirmative when asked if any part of her felt that defendant was guilty; and, she added that she had very strong emotions, which would probably affect her ability to be fair. Defense counsel did not move to challenge Ms. Bullock for cause and instead exercised a peremptory challenge. It should be noted that defense counsel did move to challenge other prospective jurors for cause at this point in the voir dire; and, considering that Ms. Bullock did not unequivocally state that she could not be fair to defendant, defense counsel may well have thought that her response would not merit a challenge for cause. It may also have been, as argued by the State in its brief, a trial strategy decision. It does not appear that the failure to seek a challenge for cause constituted ineffective assistance. In his supplemental brief, defendant asserts additional instances of ineffective assistance of counsel, namely his trial counsel's failure to object to the hearsay testimony of Dr. Khouri Anas and Meredith Partland, as noted in the discussion of Assignments of Error Nos. 3 and 4. Defendant asserts that the testimony of Dr. Anas concerning what she was told by the victim was inadmissible hearsay. La. C.E. art. 803(4) provides that: 66 The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Statements made for purposes of medical treatment and diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with the treatment. The Louisiana Supreme Court has stated that the use of the hearsay history of the case as told to the physician by the patient may be admissible if received not to show the truth of the facts stated but to show only the basis for the opinion; but only that part of the hearsay history necessary to the diagnosis is admissible. State v. Watley, 301 So.2d 332 (La.1974). In State v. Bennett, 591 So.2d 783 (La.App. 4 Cir.1991), this court found that the statements made by the victim to the doctor regarding the fact that she had been raped and, more specifically, that she had been held by the neck and forced to sit on her assailant's penis, were reasonably pertinent to the treatment and/or diagnosis by the doctor. These statements by the victim showed the purpose for the rape examination performed by the doctor and were not used to show the truth of the facts stated. However, the victim's statement to the doctor that she had been forced to drive to a secluded place was not reasonably pertinent to the treatment and/or diagnosis of the victim, and therefore, was inadmissible hearsay. However, this court held the erroneous admission of this statement was not reversible error because there was no reasonable possibility that this evidence contributed to the verdict in light of the other evidence of defendant's guilt, citing State v. Hayes, 414 So.2d 717 (La.1982); State v. Francis, 546 So.2d 1357 (La.App. 4th Cir.1989), writ denied, 551 So.2d 1336 (La.1989). In State v. Lawrence, 98-0348 (La.App. 4 Cir. 12/1/99), 752 So.2d 934, the trial court admitted the testimony of two different doctors who had examined the victim of a sexual assault. The court found that the examination by one of the doctors was not for treatment purposes but was instead a forensic examination looking for evidence of sexual assault to confirm the victim's allegations. As such, the testimony of the doctor concerning what she had been told by the victim was inadmissible hearsay and was erroneously admitted by the trial court. The other doctor's testimony regarding what she had been told by the victim was admissible under Article 803(4) because that doctor was a treating physician. The court concluded that the inadmissible testimony constituted harmless error beyond a reasonable doubt. In the present case, it appears that Dr. Anas' testimony about what she had been told by the victim was inadmissible hearsay because the purpose of her examination of the victim was to find evidence of sexual assault. However, the failure to object does not constitute ineffective assistance under Strickland. Defendant has failed to establish that he was prejudiced by this testimony considering the other evidence presented, namely the testimony of the victim herself and that of Meredith Partland. As to the testimony of Meredith Partland, it appears to be non-hearsay as defined by La. C.E. art. 801(D)(1)(d), which provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior. The victim testified at trial and was cross-examined. 67 Meredith Partland was the first person the victim told, and her statements to Meredith were consistent with her testimony. Thus, counsel was not ineffective for not objecting to this testimony, This assignment of error is without merit. ASSIGNMENTS OF ERROR NOS. 3 & 4 In these assignments error, which defendant argues together, defendant complains that the testimony of Dr. Khouri Anas and Meredith Partland concerning what the victim had told them was inadmissible hearsay. A review of the transcript shows that no objection was lodged by defendant to the testimony of either witness on the basis of hearsay. Failure to object precludes appellate review. La. C.Cr.P. art. 841; La. C.E. art. 103. These assignments of error are without merit. ASSIGNMENT OF ERROR NO. 5 In his fifth assignment of error, defendant complains that the trial court erred in allowing Dr. Susanne Tropez-Sims testify as an expert witness. He argues that Dr. Tropez-Sims should not have been allowed to testify about the reliability of the victim's reports of sexual abuse because this testimony was presented to bolster the victim's credibility before she even testified and to describe the harm likely caused to the victim by the abuse. He further argues that the testimony from Dr. Tropez-Sims as to why a patient's verbal history is so important in the examination of abuse victims was intended to enable the doctor to lend tacit support to the veracity of the victim's reports of abuse. At trial, the State tendered Dr. Tropez-Sims as an expert in the field of pediatric and child sexual assault. Defense counsel objected because it was not a particular field of expertise and noted that she had testified that no board or agency recognized it. Defense counsel further argued that Dr. Tropez-Sims should not be allowed to testify beyond what was contained in her report. In State v. Lewis, 95-0209 (La.App.4 Cir.4/13/95), 654 So.2d 761, this court held that trial judges have great latitude in deciding whether a prospective expert has the competence, background, and experience to qualify as an expert. The court further stated that the trial courts are vested with great discretion in determining the competency of an expert witness, and the rulings on the qualification of a witness, as an expert will not be disturbed unless there was an abuse of discretion. Defendant cites State v. Foret, 628 So.2d 1116 (La.1993), as support for his argument. In Foret, the defendant was charged with molestation of a juvenile. The defense presented witnesses who testified that the victim had recanted her accusation. In response, the State presented two expert witnesses. One was the victim's physician, who testified, as did Dr. Tropez-Sims, which the lack of positive physical evidence gleaned from a physical examination of the victim was not unusual in that type of case. The State also presented the victim's psychologist who testified as to the characteristics of Child Sexual Abuse Accommodation Syndrome (CSAAS), which included a recanting phase, which occurs when a victim has been separated from her family due to the allegations of abuse in her home. When asked by the prosecutor if in his opinion the victim had been sexually abused, the psychologist responded that her behavior was consistent with the "dynamics" of sexual abuse and that therefore he concluded that she had been sexually abused. On appeal, the issue before the Court was whether the trial court erred by allowing 68 the introduction of this evidence when the State waited until the morning of trial to inform the defense about the psychologist's report and of its intention to have the psychologist testify. In its opinion, however, the Court considered the actual propriety of allowing the doctor to testify concerning CSAAS and to render an expert opinion based upon the principles of CSAAS. In determining whether the psychologist's testimony would qualify as an expert opinion under La. C.E. art. 702, the Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), "which set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony." Foret, 628 So.2d at 1121. The Court further stated: The court replaced [the "general acceptance"] test of Frye [v. United States, 54 App. D.C. 46, 293 F. 1013 (1923)] with a new standard that requires the trial court to act in a "gate keeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. This requirement stems from a belief that the rules on expert testimony serve to relax "the usual requirement of first-hand knowledge" to ensure reliability on the part of a witness. 509 U.S. at 593, 113 S.Ct. at 2796. This relaxation is justified so long as "the expert's opinion (has) a reliable basis in the knowledge and experience of his discipline." Id. The reliability of expert testimony is to be ensured by a requirement that there be "a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. This connection is to be examined in light of "a preliminary assessment" by the trial court "of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue." Id. The court went on to make some suggestions as to how a court could fulfill its gate-keeping role. These involve whether or not the technique had been subjected to peer review and/or publication, the "known or potential rate of error", the existence of "standards controlling the technique's operation", the technique's "refutability" or, more simply put, testability, and, finally, an incorporation of the Frye general acceptance in the scientific community as only a factor in the analysis. 509 U.S. at 595, 113 S.Ct. at 2797. The court also stated that other rules of evidence govern this testimony, mainly F.R.E. 403's balancing test that will exclude probative evidence if outweighed by its potential for unfair prejudice. [footnote omitted] The Court noted the possibility that the expert's testimony can be quite misleading and prejudicial if this gate keeping role is not properly satisfied, requiring a flexible approach and a careful evaluation of the methodology surrounding the testimony and its conclusions: Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgmentoften of great consequenceabout a particular set of events in the past. We recognize that in practice, a gate-keeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes. 69 Id. 113 S.Ct. at 2798. Foret, 628 So.2d at 1122. The Court held that in order to qualify as expert testimony admissible under art. 702, the testimony must "rise to a threshold level of reliability" as per Daubert. Foret, 628 So.2d at 1123. Using the Daubert criteria, the Court discussed at length the failure of the psychologist's testimony concerning CSAAS to satisfy the requirements of admissibility. The Court noted that one problem with this sort of testimony was that the "dynamics" of CSAAS were intended for treatment purposes once instances of sexual abuse had been established, not for the purpose of determining whether the abuse had occurred. Despite this, CSAAS testimony was consistently used by prosecutors to bolster the credibility of the victim that abuse had occurred. The Court also noted the lack of general acceptability of CSAAS factors, the impossibility to "test" the reliability of these factors, and the relatively high "known or potential rate of error" associated with CSAAS factors. The Court also addressed the actual "helpfulness" of CSAAS testimony to the jury in its determination of a victim's credibility, quoting from cases from various other jurisdictions, which had uniformly disallowed expert testimony concerning opinions as to sexual abuse victims' credibility because such testimony would invite the jury to abdicate its responsibility to determine if the victim was truthful. The Court stated: Courts have also been concerned with unfair prejudice to the defendant from this type of expert testimony. Prejudice can result from the testimony's giving "factfinder[s] ... little more than a false sense of security based on the incorrect assumption that a reasonably accurate scientific explanation [for behavior] has been provided." Morse,[1]supra, at 1026. This testimony on credibility has the effect of "putting an impressively qualified expert's stamp of truthfulness" on a witness' testimony. Azure, supra, at 340.[2] This "stamp" has the effect of "so bolstering a witness' testimony ... [as to] artificially increase its probative strength with the jury and ... its admission may in some situations on this basis constitute reversible error." Homan v. United States, 279 F.2d 767, 772 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). This bolstering of credibility has the effect of unfairly prejudicing a criminal defendant, and, as such, the use of CSAAS-based testimony for the purpose of bolstering a witness' credibility creates a risk of prejudice that outweighs its questionable probative value. Given the near unanimity of other jurisdictions' disapproval of CSAAS-based testimony as a determinant of abuse, coupled with our observations of the risk of prejudice inherent in CSAAS, this court now concludes that such opinion testimony, as a determinant of a victim/witness' credibility is not admissible. Foret, 628 So.2d at 1129.[3] The Court did not entirely rule out the use of CSAAS evidence and theorized it might be used in a limited way to rebut 70 attacks on the victim's credibility.[4] However, the Court stated: In the instant case, the expert testified as to his expert opinion on the victim's credibility, and did not limit his testimony to general information about possible psychiatric explanations for the delay in reporting. In fact, the expert based most of his opinion upon the "level of detail" of the child's description of the sexual abuse. He concluded with an objected-to summation that, in his expert opinion, the witness was telling the truth on that occasion as to whether abuse had occurred. This expert assessment of the witness' credibility was improper, making the trial court's overruling of the objection erroneous. Foret, 628 So.2d at 1130. Using a harmless error analysis, the Court stated that it was not prepared to find beyond a reasonable doubt that this erroneously admitted testimony did not contribute to the jury's verdict. The Court further stated: "the state's case was based largely upon the testimony of the victim. The inadmissible expert testimony served to unduly bolster this testimony and, in all probability, made it much more believable to the jury. Consequently, the jury probably gave the testimony of the victim more weight than it, standing alone, would have otherwise received." Foret, 628 So.2d at 1130-1131. The Court additionally stated: We noted early on in this opinion that no evidentiary hearing was held pursuant to the trial court's gate keeping function to determine the Daubert factors governing admissibility of the expert evidence presented in this case. Accordingly, our analysis of the issues is based on consideration of the information gleaned from prior reported cases and published literature on the subject matter. The rules established in this decision pertaining to this developing area are not necessarily static. These rules do not preclude consideration by a trial court, performing its gate keeping function via an evidentiary hearing, of the admissibility of psychological testimony in sexual abuse cases for certain limited purposes, based on current evidence bearing on the reliability and accuracy of this type of evidence. As the State's use of CSAAS-based testimony was not so limited at the trial court, it constituted an improper comment on the victim's credibility, and served to unduly prejudice the defendant. As this prejudice created an error that was not harmless, we must and do hereby reverse the conviction and remand the case to the district court for a new trial. Foret, 628 So.2d at 1131. In State v. Johnson, 94-1369 (La.App. 4 Cir. 3/16/95), 652 So.2d 1069, this court discussed the admissibility of expert testimony under Foret of two doctors who had examined the child victim of sexual abuse. One of the doctors stated that she rarely found evidence of trauma when conducting a rape examination of a child, and she also testified about the possible route of transmission of the anal warts found during her examination of the victim. Another doctor testified about characteristic behavior of a sexually abused victim. The admission of the testimony of the first doctor was found to be harmless error because the State had not established that the defendant ever had venereal warts or was a carrier of them. As to the second doctor's testimony, the court found that it was not precisely the type disallowed by Foret. The court 71 said that it was not necessarily a comment on the credibility of the victim. The trial court did not abuse its discretion in admitting Dr. Tropez-Sims' testimony. She testified that an alleged abuse victim's history was necessary for the physician to make a diagnosis and to treat the victim. This particular testimony does not appear to be calculated as an attempt to boost the credibility of the victim. As to her testimony regarding reasons for delays in reporting, defendant objected on the grounds of relevancy, not that it was not within her field of expertise. A new basis for objection cannot be advanced for the first time on appeal. State v. Baker, 582 So.2d 1320 (La.App. 4 Cir.1991) writ denied 590 So.2d 1197 (La. 1992). Accordingly, this assignment of error is without merit. ASSIGNMENTS OF ERROR NOS. 6, 7 & 8 In these three assignments of error, which are argued together in defendant's brief, defendant complains that the State provided insufficient notice of the charged crimes and of its intent to use other crimes evidence and that the trial court failed to require the State to elect which of the multiple acts of alleged abuse were covered by the three counts of the indictment. Defendant argues that the lack of notice deprived him of due process and his right to present a defense. In State v. Barrow, 98-0374, p. 4 (La. App. 4 Cir.11/25/98), 724 So.2d 263, 265, this court stated: In criminal prosecutions, "an accused shall be informed of the nature and cause of the accusation against him." La. Const. Art. I, § 13. The bill of particulars provided for in Article 484 of the Code of Criminal Procedure is a means by which a defendant is so informed. State v. DeJesus, 94-0261, p. 3 (La.9/16/94), 642 So.2d 854, 855. While the bill of particulars is not a means for the defendant to obtain the State's evidence, it should inform of the essential facts of the crime charged. Id. Therefore, if the trial court determines that the bill of information and/or bill of particulars is insufficient, it may quash the charges. La.Code Crim. Proc. Ann. art. 485. DeJesus, supra. An appellate court reviews such a ruling for abuse of discretion. State v. Atkins, 360 So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979); State v. Ross, 561 So.2d 1004, 1007 (La.App. 4th Cir.1990), writ denied in part, not considered in part, 594 So.2d 885 (La.1992). The grand jury indictment charged that defendant committed: aggravated rape of the victim between June 1, 1992 through March 18, 1996; forcible rape of the victim between March 19, 1996 and March 31, 1997; and, aggravated crime against nature upon the victim between June 1, 1992 through March 31, 1997. In an amended answer to defendant's bill of particulars, the State responded: One incident of aggravated crime against nature, approximately the summer of 1992, where the defendant resided at the time, a blue house over the Rigolet's [sic] Bridge. One incident of aggravated rape near the end of the summer of 1992 or early in the school year of 1992 at the camp of Ronnie Bodenheimer around Venetian Isles, near Lake Catherine. One incident of aggravated rape in the early fall of 1994 in the bedroom of the house located next to the marina in Venitian [sic] Isles. Several incidents of aggravated crime against nature starting in the summer of 1994 into the fall of 1994 at the house 72 located next to the marina in Venetian Isles. One incident of aggravated crime against nature and forcible rape in the Spring of 1996 in the living room of the apartment where the defendant resided in Venitian [sic] Isles. One incident of forcible rape in November of 1996 in the apartment where the defendant resided in Venitian [sic] Isles. One incident of forcible rape in February of 1997 in the apartment where the defendant resided in Venitian [sic] Isles. One incident of forcible rape and aggravated crime against nature in March of 1997 in apartment where the defendant resided in Venetian Isles. Defendant asserts that the evidence that the State put on at trial included acts of abuse not identified in the bill of particulars and that the victim's testimony was so unspecific as to imply multiple instances of rape at each location. He also argues that the State could have provided him with the specific date of one of the alleged incidents, namely the one that occurred when the victim had her first period. In State v. Dixon, 628 So.2d 1295 (La. App. 3 Cir.1993), the defendant was charged with the aggravated rape of his girlfriend's seven-year-old daughter. The offense was alleged to have occurred between the beginning of 1991 through April 1992. The defendant complained that the trial court erred in allowing the State to introduce "other crimes" evidence without a Prieur notice of its intent to do so. The trial court found that a Prieur notice was not necessary; and, the Third Circuit affirmed this decision although for reasons different from those cited by the trial court. The court noted that the purpose of a Prieur notice is to give the defendant an opportunity to test the relevancy, admissibility, and probative value of other crimes evidence prior to its introduction at trial and to give the defendant time to prepare a defense to the evidence of other crimes or acts. The court stated that in a prosecution for the commission of the rape of a minor, evidence of prior sex offenses committed by the defendant with the same prosecutor is generally admissible for reasons such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant, and the probability of his having committed the offense charged or to rebut an alibi. The court further stated that there was no need for a Prieur notice because although evidence of more than one occurrence was presented, all of the occurrences fell within the sixteen-month time range specified in the bill of particulars and involved the same prosecutor. The court stated: Although only count of aggravated rape is generally charged, a range of time in which it occurred is often given in cases involving a continuing sexual relationship. See State v. Osborne, 593 So.2d 888, 891 (La.App. 2 Cir.1992); [State v.] Kohl, 524 So.2d [781] at 784; State v. Fisher, 507 So.2d 1263, 1266 (La.App. 3d Cir.1987), writ denied 551 So.2d 1328 (La.1989); State v. Frith, 436 So.2d 623, 627 (La.App. 3d Cir.), writ denied, 440 So.2d 731; [State v.] Case, 357 So.2d [498] at 499. Therefore, the evidence of any aggravated rape by the defendant of the same victim within that time frame is evidence of the crime with which the defendant is accused; it is not evidence of "other crimes." In the case before, the defendant was in no danger of being convicted of some other crime than that for which he was on trial or because he is a man of criminal 73 character. See State v. Sutfield, 354 So.2d 1334 (La.1978). Nor was the defendant in danger of being tried for charges of which he had no notice or for which he was unprepared and which unfairly prejudiced him in the eyes of the jury. See [State v.] Goza, 408 So.2d [1349] at 1353. Defendant was simply tried for the crime with which he was charged and he was given sufficient notice of the crime through the bill of particulars. No evidence of other crimes was introduced and, therefore, a Prieur notice of the State's intent to introduce other crimes evidence at trial was neither required nor necessary. Finally, we note that the sixteen-month time frame alleged for the commission of the crime is not too general or too long. The date of the offense is not an essential element of the crime of aggravated rape. Frith, 436 So.2d at 626. Also, Fisher, 507 So.2d at 1266. In a continuing relationship of this type, exact dates often cannot be supplied. Kohl, 524 So.2d at 784, and cases cited therein. Moreover, the extreme youth of the victim in this case poses even more problems in obtaining exact dates. It was not necessary for the State to specify the date of an offense in the indictment or the bill of particulars, and any one of the offenses committed within that time frame could be proven to obtain a conviction for the crime with which defendant was charged. State v. Dixon, 628 So.2d at 1298-1299. Defendant had sufficient notice of the offenses charged in order to defend himself against the charges. The date of the offenses was not essential; and, it should be noted that a Prieur hearing was held in the present case at which the victim testified. Because the "other crimes" evidence in this case involved the same victim, such notice was unnecessary. It should be noted that during trial, defendant made no objection to the victim's testimony on the basis of surprise. These assignments of error are without merit. ASSIGNMENTS OF ERROR NOS. 9 & 10 In these two assignments of error, which are argued together in defendant's brief, defendant complains that improper arguments and comments from the prosecutor prejudiced him. A review of the transcript of closing argument shows that defendant to the prosecutor's comments lodged only one objection, and the trial court sustained that objection. Defendant's failure to object precludes appellate review of these issues. La.C.Cr.P. art. 841. ASSIGNMENT OF ERROR NO. 11 In this assignment of error, defendant complains that the trial court erred in dismissing a sworn juror who was absent from the jury room at the close of voir dire. He argues that the trial court should not have replaced this juror with an alternate without first ascertaining whether the juror was incompetent to serve or attempting to locate her. La. C.Cr.P. art. 789 provide for the replacement of a juror with an alternate in the event that the juror becomes unable to serve or is disqualified prior to the time the jury retires to consider its verdict. In State v. Hawkins, 496 So.2d 643 (La.App. 1st.Cir.1986), the trial court replaced a juror with an alternate following an unsuccessful search for the juror who had failed to appear for the second day of trial. The First Circuit found no abuse of discretion in the trial court's action because its decision alleviated any further trial delay which might have resulted from further effort to locate the missing juror. 74 In the present case, it does not appear that the trial court abused its discretion in disqualifying the juror who was missing from the jury room and replacing that juror with an alternate considering that testimony in the trial had yet to begin. This assignment of error is without merit. ASSIGNMENTS OF ERROR NOS. 12 & 13 In these two assignments of error, defendant complains that the trial court imposed excessive sentences. He argues that the trial court failed to consider any of the mitigating circumstances and that the maximum sentences were not warranted. Although a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless and needless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992); State v. Telsee, 425 So.2d 1251 (La.1983). A reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances. State v. Soco, 441 So.2d 719 (La.1983); State v. Anderson, 97-2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14. If adequate compliance with Article 894.1 is found, the reviewing court must then determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982). The trial judge has wide discretion in sentencing, and a sentence should not be set aside absent the manifest abuse of that discretion. State v. Sweeney, 443 So.2d 522 (La.1983). At the sentencing hearing, Fran Lee Brauner, Crystal Hennesey, and Kim Bacques all testified on behalf of defendant; and, the prosecutor read a letter written by the victim. In imposing the maximum sentences, the trial judge stated that the acts committed by defendant were abhorrent, repugnant, and egregious. The court further stated that any crime against a child is inexcusable. In State v. Frith, 32,796 (La. App.2Cir.12/8/99), 747 So.2d 1269, the trial court imposed a sentence of twenty years at hard labor, with ten years without benefit of parole, probation, or suspension of sentence, on a defendant convicted of the forcible rape of his thirteen-year-old biological niece. The sentence was not found to be excessive. In State v. Ledet, 96-0142 (La.App. 1 Cir.11/8/96), 694 So.2d 336, writ denied 96-3029 (La.9/19/97), 701 So.2d 163, the defendant was sentenced to fifteen years for the forcible rape of his twelve year old daughter. The First Circuit did not find the sentence to be so disproportionate as to shock the sentence of justice. In State v. Adkins, 31,300 (La. App.2Cir.11/9/98), 721 So.2d 1090, the defendant was convicted of the forcible rape of his girlfriend's three daughters, all of whom were under the age of twelve; and, he was sentenced to forty years at hard labor on each count with the first two years to be without benefit of parole, probation, or suspension of sentence. The 75 Second Circuit did not find the sentences to be excessive. The defendant had a prior felony conviction; and, the court noted that defendant had been charged with aggravated rape, which carried a life sentence. The court stated that the maximum sentences, which ran concurrently and were subject to the minimum without benefits, did not shock the sense of justice. Comparing the sentences in this case with those in the above-cited cases, it does not appear that the trial judge adequately justified the imposition on defendant of the maximum sentences which were to run concurrently and without benefit of parole, probation, or suspension of sentence for their entirety, considering that defendant did not have any prior convictions and that he presented evidence of mitigating circumstances. The sentences should be vacated and the case remanded for resentencing. ASSIGNMENT OF ERROR NO. 14 In his final assignment of error, defendant complains that the record is incomplete and precludes adequate appellate review of the proceedings below. He particularly complains about the omission of portions of the voir dire and several pretrial hearings. The state constitution provides that "[n]o person shall be subjected to imprisonment... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based." La. Const. Art. I, § 19. In felony cases, the recording of "all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel" is statutorily required. La. C.Cr.P. art. 843. This court has recognized that a complete appellate review of a defendant's conviction and sentence can be accomplished even when there are missing portions of the trial record. In State v. Thomas, 92-1428 (La.App. 4 Cir.5/26/94), 637 So.2d 1272, writ denied, 94-1725 (La.11/18/94), 646 So.2d 376, cert. denied, Thomas v. Louisiana, 514 U.S. 1054, 115 S.Ct. 1437, 131 L.Ed.2d 317 (1995), this court found that the record was adequate for full appellate review. Missing from the appeal record were transcripts of the voir dire, jury instructions, opening statements, and closing arguments. The court noted that "[b]ecause the missing portions of the trial record are not evidentiary, their absence does not compromise the defendants' constitutional right to a judicial review of all evidence." Thomas, at 1274. In addition, the minute entries of trial did not indicate that the defendant made any objections during the proceedings missing from the record. Also, in State v. Lyons, 597 So.2d 593 (La.App. 4 Cir.1992), this court concluded that the appellate record was adequate for review although transcripts of the voir dire, the impaneling of the jurors, opening statements, and a portion of the jury charges were missing. The court noted that the defendant had made no specific assignments of error as to the missing portions of the record except the fact that they were missing. Defendant asserts that there is nothing in the voir dire transcript to support the challenge for cause granted to the State for Lawrence Despenza, but there is no defense objection to the trial court's granting the challenge for cause. He also argues that the transcript of the Prieur hearing contains only the victim's testimony, but he makes no specific allegations of error. The present record is sufficient for a complete appellate review of defendant's convictions and sentences. This assignment is without merit. *76 CONCLUSION Accordingly, the defendant's convictions are affirmed, and his sentences are vacated and the case remanded for resentencing. CONVICTIONS AFFIRMED AND REMANDED FOR RESENTENCING. NOTES [1] Morse, "Failed Explanations and Criminal Responsibility: Experts and the Unconscious", 68 Va. L. Rev. 971 (1982). [2] United States v. Azure, 801 F.2d 336 (8th Cir.1986). [3] See also La. C.C. 403, which provides: "Although relevant, evidence may be excluded 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, or waste of time." [4] Indeed, the Court has since used CSAAS factors pertaining to delayed reporting of sexual abuse in its determination of whether a tort suit arising out of sexual molestation of a juvenile had prescribed. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372360/	124 Ariz. 38 (1979) 601 P.2d 1322 The STATE of Arizona, Appellee, v. Robert Paul BROOKOVER, Appellant. No. 4426. Supreme Court of Arizona, In Banc. October 2, 1979. Rehearing Denied November 6, 1979. Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Jessica L. Gifford, Asst. Attys. Gen., Phoenix, for appellee. Erlichman, Fagerberg & Margrave, P.A. by Joseph Erlichman, Kenneth E. Chase, Phoenix, for appellant. CAMERON, Chief Justice. This is an appeal by the defendant, Robert Paul Brookover, from a jury verdict and 39 judgment of guilt to the crime of murder in the first degree, A.R.S. § 13-454,[] with a sentence thereon of death. We have jurisdiction pursuant to A.R.S. § 13-4031. Although the defendant raises four questions on appeal, the thrust of defendant's brief is addressed solely to the question of the imposition of the death penalty. He asks that the death penalty be reduced by this court to life imprisonment without possibility of parole for 25 years. Since we agree that the death penalty must be set aside, we need not consider other issues raised by the defendant and need answer only the following questions on appeal: 1. Was the crime committed in an especially heinous, cruel or depraved manner? 2. Was the aggravating circumstance outweighed by the mitigating circumstance? The facts necessary for a determination of this matter are as follows. Defendant and two others, Paul Zisser and Stanley Akers, Jr., were approached by Steven McCloud about the prospects of purchasing a large quantity of marijuana. Defendant agreed to purchase the marijuana and a meeting was arranged at which time the marijuana was sampled for quality. A third meeting was then scheduled to take place at defendant's home at which time the delivery of approximately 750 pounds of marijuana was to be made. Akers and McCloud went to meet the victim, Gregory Case, and returned to defendant's house where the marijuana was unloaded and weighed. As the weighing neared completion, Akers asked the defendant about the money and the defendant told Akers that it would be produced as soon as the weighing was completed. At that point defendant went in to the bedroom and pulled out a gun and told Akers there would be no money and that he was going to take the marijuana. The defendant then went into the living room and shot the victim once in the back. The victim fell to the floor moaning and asked the defendant what he had done. The defendant said "Don't worry * * * it will be over soon" and shot him once more in the back. After Zisser and Akers left, defendant and McCloud moved the victim's body into the victim's van, drove the van to the airport and abandoned it there. Based on evidence provided by Akers, Zisser and McCloud, the defendant was subsequently arrested and was convicted, on 5 June 1978, by a jury of first degree murder. After a presentence hearing in aggravation and mitigation, the trial court issued its special verdict which read in part as follows: "Based upon the presentation of information at the sentencing hearing and the evidence admitted at the trial of this case, the court makes the following findings as to the existence or non-existence of each of the aggravating circumstances enumerated in subsection (E) of A.R.S. Sec. 13-434 [13-454] and as to the existence or non-existence of any mitigating circumstances whether or not mentioned in A.R.S. Sec. 13-434 [13-454] which the Defendant presented. "AGGRAVATING CIRCUMSTANCES as to the Defendant Robert Paul Brookover: "1. The Defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable. FINDING: The court finds that this circumstance does exist * * * * * * "The court takes judicial notice of the relevant matters in the Superior Court of Maricopa County Arizona File # 97418 entitled State of Arizona v. Robert Paul Brookover. In the latter cause, the defendant was convicted and judgment entered against him for possession of marijuana for sale, with a prior conviction. The prior conviction was the State of 40 Ohio conviction in Cause No. 74 CR 69 entitled State of Ohio v. Bobby Brookover on September 13, 1976. "Sale of marijuana under the laws of the State of Arizona as set forth in Sec. 36-1002.07 is punishable by imprisonment from 5 years to life imprisonment. Defendant has therefore been convicted of another offense which under Arizona Law carries a possible sentence of life imprisonment, and is therefore an aggravating circumstance. * * * * * "6. The Defendant committed the offense in an especially heinous, cruel or depraved manner. FINDING: The court finds that this circumstance does exist. The evidence submitted at the trial established that the murder of Gregory Case was committed by the Defendant at Defendant's home on June 22, 1977 in Scottsdale, Arizona. Gregory Case, the victim, arrived at the Defendant's home with a load of marijuana in a van. The marijuana was unloaded into the Defendant's house where it was weighed. When the weighing was almost completed, the victim demanded to see the money. Defendant indicated the money was not there but that he would get it. The victim continued the weighing. Shortly thereafter Defendant pulled a.38 caliber revolver and without saying anything shot the victim Gregory Case in the back. The victim fell to the floor. Defendant stood over the victim and in response to the victim's statement that `you hurt me' or `it hurts,' the Defendant responded `don't worry, buddy, it'll be ok' and shot the victim in the back again. The body was taken by the Defendant and a third party in the van to the Phoenix Sky Harbor parking lot and abandoned. Two theories are advanced and accepted by the court as motives for the crime: 1. That the Defendant committed this deliberate act of murder to `rip off' the marijuana; 2. That the murder was committed to impress the other narcotic traffickers present that he was a `heavyweight' and capable of committing a cold and deliberate homicide. "The court finds that the murder of Gregory Case, by shooting him in the back and while helpless on the floor, for either or both of the reasons mentioned, is an especially heinous, cruel and depraved act." WAS THE CRIME COMMITTED IN A SPECIALLY HEINOUS, CRUEL AND DEPRAVED MANNER? The Florida Supreme Court has discussed the meaning of "heinous," "atrocious," and "cruel," as applied to conduct which may be considered in applying the death penalty: "* * * It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is necessarily torturous to the victim." State v. Dixon, 283 So.2d 1, 9 (Fla. 1973). See also Halliwell v. State, 323 So.2d 557 (Fla. 1975). In State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), where the victim was shot four times in the back during a burglary of a house and in which the victim had obtained a gun and was shooting at a codefendant, we stated: "Although this murder is, as is any murder, shocking, the conduct of the defendant does not comply with the legislative intent. We do not believe that the killing of the defendant was in a particularly heinous, cruel or depraved manner as contemplated by the statute and that aggravating factor number 6 of A.R.S. § 13-454(E) was not shown." State v. Watson, supra, 120 Ariz. at 448, 586 P.2d at 1260. 41 In the instant case, the victim was shot twice in the back. While certainly cowardly, it was not done in a particularly cruel or depraved manner. This was not a "conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, supra; State v. Watson, supra. The actions of the defendant did not set his acts apart from the norm of first degree murder. We do not believe that the murder was committed in an "especially heinous, cruel and depraved manner." A.R.S. § 13-454(E)(6). WAS THE AGGRAVATING CIRCUMSTANCE OUTWEIGHED BY THE MITIGATING CIRCUMSTANCE? The trial court found as a mitigating circumstance that defendant's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution." A.R.S. § 13-454(F)(1). This finding in mitigation was supported by the evidence. Dr. Joseph Richard Melendez, a psychiatrist, testified as follows: "Q With reference to your evaluation, on page two of your report of August 2, 1978, you indicated that Bob Brookover had a it says `pre traumatic,' I presume your meant `post traumatic, probably of prenatal origin, subtle, neurological lesion.' With reference "A Pre traumatic would be in reference to the automobile accident that you commented about already. "Q That's an accident which occurred I believe in late 1969? "A Yes. "Q Then you determined that apparently he had a neurological lesion? "A Pre existing lesion. "Q Of what clinical significance is that? "A The character of the lesion is such that it would be difficult for Mr. Brookover or anyone with this particular kind of lesion to undergo normal character development. "Q Can you expand on that? "A The reason being is that the brain system, neurological system is organized in such a manner that information that enters the nervous system cannot be integrated in a smooth, accurate manner, nor can it be stored in an accurate manner. "Q Can that also create emotional disturbances? "A Yes. Secondarily it frequently does. In our experience, the reason that I did take this degree of testing with Mr. Brookover, recent literature indicates that at least a 50 to 60 per cent of individuals of this particular situation suffered from this type of lesion and it has a tendency to lead them in the direction of anti social or asocial behavior." And: "Q Do you feel then that in your opinion, or do you have an opinion then as to whether or not, again based on your examination of Mr. Brookover, whether or not at the time of the homicide he incurred any loss of touch with reality? "A Not in the legal sense. "Q In a psychiatric sense then? "A In the psychiatric sense, a relinquishment of one's self autonomy, yes. "Q Would it be fair to say that this capacity to appreciate the wrongfulness of the acts to conform his acts to requirement of law were not so impaired as to constitute a defense to a murder prosecution, but were nevertheless significantly impaired. Would that be a fair statement? "A Yes. Please let me make it clear that this is strictly in the legal sense. I think from my own professional opinion that individuals like this, psychiatrically, one must consider this a true suspension of reality, but as I understand the legal test, no." The statute reads: "D. In determining whether to impose a sentence of death or life imprisonment 42 without possibility of parole until the defendant has served twenty-five calendar years, the court shall take into account the aggravating and mitigating circumstances enumerated in subsections E and F and shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection E and that there are no mitigating circumstances sufficiently substantial to call for leniency." A.R.S. § 13-454(D). The statute does not require that the number of aggravating circumstances be weighed against the number of mitigating circumstances. One mitigating circumstance, for example, may be "sufficiently substantial" to outweigh two aggravating circumstances. The converse is also true one aggravating circumstance could be so substantial that two or more mitigating circumstances would not be "sufficiently substantial to call for leniency." A.R.S. § 13-454(D). Both the trial court and this court then must "weigh" the mitigating circumstances against the aggravating circumstances to determine if leniency is required: "* * * the gravity of the death penalty requires that we painstakingly examine the record to determine whether it has been erroneously imposed. (citation omitted) Furthermore, because A.R.S. § 13-454 sets out the factors which must be found and considered by the sentencing court, we necessarily undertake an independent review of the facts that establish the presence or absence of aggravating and mitigating circumstances (citation omitted). We must determine for ourselves if the latter outweigh the former when we find both to be present." State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976). We believe that defendant's mental condition was not only a mitigating factor, but a major and contributing cause of his conduct which was "sufficiently substantial" to outweigh the aggravating factor of defendant's prior conviction. Under the circumstances, leniency is mandated. The imposition of the death penalty is set aside and the defendant's sentence is reduced to life imprisonment without possibility of parole for 25 calendar years from the date of sentencing herein. In all other respects, the verdict and judgment are affirmed. STRUCKMEYER, V.C.J., and HAYS, HOLOHAN and GORDON, JJ., concurring. NOTES [*] Title 13 citations in this opinion are to the Arizona Criminal Code as it existed prior to its extensive revision effective 1 October 1978.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/544922/	908 F.2d 966 17 Fed.R.Serv.3d 794 Unpublished DispositionNOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Nancy C. FLUKER, individually and on behalf of all otherssimilarly situated, Plaintiff-Appellant,v.KENNEY'S FRANCHISE CORPORATION, William Kenney, Sr.,Defendants-Appellees,andKenney's Restaurant, Inc., Kenney's Drive-In Corporation, Defendants. No. 89-1760. United States Court of Appeals, Fourth Circuit. Argued March 6, 1990.Decided July 10, 1990. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (CA-77-34-R) Robert Brian Fitzpatrick, Fitzpatrick & Verstegen, Washington, D.C., (argued), for appellant; Mark D. Laponsky, Fitzpatrick & Verstegen, Washington, D.C., on brief. Bayard Easter Harris, Woods, Rogers & Hazlegrove, Roanoke, Va., for appellees; Frank K. Friedman, Woods, Rogers & Hazlegrove, Roanoke, Va., George A. McLean, Jr., Roanoke, Va., on brief. W.D.Va. AFFIRMED. Before K.K. HALL, SPROUSE and WILKINS, Circuit Judges. PER CURIAM: 1 Nancy C. Fluker appeals the district court's order dismissing, as time-barred, her agency theory of liability against William Kenney, the chief executive officer of Kenney's Franchise Corporation [KFC], the corporate employer against which Fluker's initial sex discrimination claims were made. Fluker also appeals the order granting summary judgment to Kenney with respect to Fluker's attempt to "pierce the corporate veil." Finding no error, we affirm. I. 2 The facts underlying Fluker's claims of sex discrimination are recounted in a prior opinion of this Court and will not be extensively repeated here. Fluker v. Kenney's Franchise Corp., No. 84-1676 (4th Cir. March 20, 1985) (unpublished). Fluker I involved the district court's order granting summary judgment against Fluker in her attempt to pierce the corporate veil so as to render Kenney liable on the Title VII claim on which KFC had been previously held liable. We reversed and remanded the case for further factual development regarding Kenney's operation of KFC. We also noted that the district court "may also consider whether Fluker's post-summary judgment allegation of agency is sufficiently before it to make an evidentiary finding on that issue." Id. at 6. Upon remand, Fluker was allowed to amend her complaint to add an agency claim against Kenney, but the claim was subsequently dismissed as being time-barred because the claim did not relate back to the filing of the complaint. Also, summary judgment was again granted to Kenney on the corporate veil theory. Fluker appeals each of these orders. II. 3 On appeal, Fluker contends that the lower court erred in ruling that her amendment adding the agency claim did not relate back to the filing of the original complaint. She also contends that the district court erred in ruling that KFC's corporate veil should not be pierced to impose personal liability on Kenney. We affirm the corporate veil ruling on the reasoning of the district court. Fluker v. Kenney's Franchise Corp., CA-77-34-R (W.D.Va.) (Memo. op. filed May 25, 1989). We address the dismissal of the agency claim, however, in order to clarify the standard of review of the district court's relation-back ruling. 4 Fluker first mentioned the agency claim in her 1983 motion to reconsider the district court's judgment for Kenney on the corporate veil theory. However, it was not until four years later, and two years after Fluker I was decided, that she attempted to amend the complaint to add the claim. Such undue delay might well have warranted the denial of the motion to amend the complaint in the first place. See Woodson v. Fulton, 614 F.2d 940, 942-43 (4th Cir.1980). Having permitted the amendment, however, the court examined the factors set forth in Rule 15(c)1 to determine whether the new claim related back to an earlier date so as to permit Fluker to escape the effect of the limitation period governing the filing of such claims.2 The district court determined that the agency claim "arose out of the same conduct ... set forth in the original [complaint] ..." and that Kenney undoubtedly had notice of the original complaint from its inception. However, the court dismissed the claim as time-barred because Kenney would be "prejudiced in maintaining his defense on the merits" of the then recently-raised agency claim due to the lapse of time. Fluker v. Kenney's Franchise Corp., CA-77-34-R (W.D.Va.) (Memo. op. filed May 5, 1988). This dismissal was not in error. 5 When prejudice arises due to the delay in raising a claim or adding a party, courts generally resolve the problem under Rule 15(a) by refusing to allow the amendment. In this way, the relation-back issue is obviated. On appeal, we would review the denial of the motion to amend under an abuse of discretion standard. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). Although the case presently before us involves Rule 15(c) and whether the amendment relates back, the prejudice inquiry is closely related to that under Rule 15(a)'s standard of "when justice so requires." However, because prejudice is essentially a factual finding, we review the lower court's 15(c) ruling on this point under a clearly erroneous standard. 6 Leave to amend should be liberally granted. Foman v. Davis, 371 U.S. 178, 182 (1962). Inasmuch as relation-back serves the same general goal of insuring that cases are tried on the merits, a similar liberality should guide our analysis under Rule 15(c). 3 Moore's Federal Practice p 15.02 (1989). However, the goal of having the merits tried must be tempered by fairness to the defendant. Under the particular circumstances of this case, we think that the district court did not clearly err in finding that Kenney would be prejudiced. 7 The agency claim sought to impose personal liability on Kenney for his role in the formulation of the discriminatory maternity leave policy. Under Title VII, supervisory personnel may be independently liable as "employers." Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir.1986). The corporate veil claim, however, was not concerned with Kenney's role in formulating the leave policy. Instead, Kenney's liability under this theory is contingent on KFC's liability under Title VII. Once this corporate liability is established, the corporate veil inquiry looks to whether such liability should be superimposed on Kenney because KFC was essentially his "alter ego." This inquiry is completely unrelated to any inquiry into Kenney's individual role vis-a-vis the leave policy. As the district court recognized, Kenney should not have been expected to have anticipated a claim at such a late date which, for the first time, attempted to make him liable for what he did rather than for what the corporation did. 8 Kenney's ability to maintain a defense against the recently-raised agency theory is most obviously prejudiced due to the fact that the maternity leave policy in question had already been determined to be discriminatory. The district court's view is that adding this claim at such a late date would amount to little more than an ambush of Kenney. While delay alone does not necessarily constitute prejudice under Rule 15(c), it is certainly a factor to be considered. Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1043 (4th Cir.1984). Memories fade, witnesses can no longer be found, and records are lost or destroyed. All these are likely to adversely affect a defendant such as Kenney who is suddenly faced with a new claim against him. As the district court noted, although Kenney was made a defendant in 1981, it was solely for the purpose of pursuing the corporate veil route of recovery. Agency is an entirely distinct theory of liability, and, under the circumstances of this case, ten years is too long a period to wait before raising it. We find no error in the lower court's refusal to allow the amendment to relate back, and we affirm.3 9 AFFIRMED. 1 Fed.R.Civ.P. 15(c) provides in pertinent part: (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. 2 Title 42 U.S.C. Sec. 2000e-5(f)(1) requires that any Title VII claim be filed within ninety days of receipt of the right-to-sue letter from the EEOC. Fluker's right-to-sue letter was received in December 1976 3 In view of our holding with respect to the relation-back issue, we do not reach Kenney's contention that the Title VII agency claims against him are barred due to Fluker's failure to name him in the charges filed with the EEOC in 1975. See e.g., Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.), cert. denied, 389 U.S. 877 (1967)	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1372271/	184 Ga. App. 800 (1987) 363 S.E.2d 2 BUFFINGTON v. SASSER. 74758. Court of Appeals of Georgia. Decided September 22, 1987. Rehearing Denied November 6, 1987. Glenville Haldi, for appellant. Thomas J. Wingfield III, Herman L. Fussell, John P. Gallagher, for appellee. BANKE, Presiding Judge. Prior to 1972, appellant Robert Buffington and appellee Robert Sasser owned and operated separate mechanical subcontracting businesses known, respectively, as Dresco Mechanical Contractors, Inc., and Sasser and Company. The complicated factual scenario giving rise to this litigation had its genesis in 1972, when Buffington and Sasser entered into a joint venture which they incorporated as Dresco Corporation. Buffington served as the new company's president and Sasser as its vice-president and chief operating officer. Dresco Corporation took over no business already undertaken by its principals' existing companies, which continued in operation as before. Dresco Corporation undertook several projects, among them a subcontract to perform certain mechanical work in connection with a construction project at Central State Hospital in Milledgeville, Georgia (hereafter referred to as the "Milledgeville project"). However, shortly after beginning work on this project, the parties decided to terminate their joint venture; and in October of 1972 they entered into a written agreement to that effect. Pursuant to this agreement, the remaining work which the joint venture had undertaken to perform was divided between Buffington and his corporation on the one hand and Sasser and his corporation on the other, with the Milledgeville project being assigned to Buffington and his company, Dresco Mechanical Contractors, Inc. Each party agreed to indemnify the other for any liability arising out of the completion of the various projects assigned to them. Buffington's agreement to indemnify Sasser (which was to become the subject of the present litigation) specifically provided as follows: "Buffington and Dresco Mechanical agree to indemnify and save harmless Sasser & Company, Inc., Sasser and Dresco Corp. from any and all liabilities and responsibility for or arising out of the subcontracts, purchase orders and projects herein assigned to Dresco Mechanical, whether such liability and responsibility exists now or arises in the future, and do further agree to indemnify and save harmless Sasser & Company, Inc., Sasser and Dresco Corp. from any and all liability and responsibility for or arising out of: (a) any performance or payment bonds issued in connection with ... construction of ... [the Milledgeville project]." In 1976, Buffington and Dresco Mechanical Contractors, Inc., (hereafter sometimes referred to together as "Buffington") were named along with Sasser, Sasser and Company, Inc., and Dresco Corporation (hereafter sometimes collectively referred to as "Sasser") as third-party defendants in a federal court lawsuit stemming from the Milledgeville project. In that litigation, Sasser filed a cross claim against Buffington, asserting that the termination agreement required 801 Buffington to indemnify him against any liability with which he might be charged in the suit. The federal court granted summary judgment to Sasser on this cross-claim, concluding that "the assignees [i.e., Buffington] must stand ready to indemnify the movants against any loss suffered in the litigation." Both parties were, however, subsequently dismissed without prejudice from the federal litigation. During the course of the federal litigation, Sasser was represented by the law firm of Stokes and Shapiro. Buffington initially had other counsel; however, it appears that at some point during the proceedings the firm of Stokes and Shapiro also began representing Buffington, pursuant to the parties' express consent to such dual representation. Also, it appears that Buffington settled an unrelated claim against an unrelated party during the pendency of the federal litigation, resulting in his placement of $34,781.97 in escrow with Stokes and Shapiro, "to be applied against any judgment, settlement or agreement of settlement between [Buffington] and Sasser and Sasser & Company." After Buffington and Sasser had been dismissed from the federal litigation without an adjudication of liability, Sasser demanded that Buffington reimburse him for his legal expenses incurred in defending the federal suit. When Buffington refused, Sasser filed the present suit in the Superior Court of Fulton County to recover such attorney fees from the money being held in the escrow account, naming both Buffington and Stokes and Shapiro as defendants. Stokes and Shapiro responded by filing a counterclaim against Sasser as well as a cross-claim against Buffington in the nature of an interpleader, in an effort to determine its responsibilities regarding disbursement of the escrow funds. Buffington moved to transfer the case to the Superior Court of Forsyth County, contending that venue was not proper in Fulton County. The trial court denied the motion, and we denied a subsequent application by Buffington for interlocutory appeal review of that ruling. The trial court later ruled in favor of Sasser on the merits of the case by granting his motion for summary judgment and denying a motion of summary judgment filed by Buffington. This appeal followed. Held: 1. The motion to transfer the proceedings based on improper venue was correctly denied. Although the only named defendant residing in Fulton County was the law firm of Stokes & Shapiro, which was sued solely as a stakeholder, the plaintiff, Sasser, was also a resident of Fulton County. In Williams v. Overstreet, 230 Ga. 112 (195 SE2d 906) (1973), the Supreme Court held that an action of this sort is properly brought in the county in which the stakeholder is subject to suit, where the stakeholder's response is in the nature of an interpleader and where one of the claimants to the fund is also a resident 802 of that county, even if the other claimants reside in different counties. More recently, in Kelly v. C & S Nat. Bank, 160 Ga. App. 405 (1) (287 SE2d 343) (1981), this court held that venue in an action where there is a counterclaim, cross-claim or third-party claim for interpleader is proper in any county where at least one of the claimants to the fund resides. Buffington's reliance on Currahee Constr. Co. v. Rabun County School Dist., 180 Ga. App. 471 (349 SE2d 487) (1986), for a contrary result is misplaced. In Currahee, the plaintiff sued a construction company and its "builder's risk" insurance carrier in Rabun County, the situs of the insured property, and sought to bring in the nonresident construction company as a joint obligor under the authority of OCGA § 9-10-31 and Art. VI, Sec. II, Par. IV of the Georgia Constitution. We held that the defendants were not jointly obligated and that the construction company consequently could not be sued in Rabun County because the alleged injuries and causes of action were different, the cause of action against the insurance carrier being in contract and the cause of action against the construction company being in tort. That case has no application to the present case, where venue is based not on joint liability but on the separate legal principles applicable to interpleader actions. Applying the rationale of Williams, supra, and Kelly, supra, we hold that the motion to transfer was properly denied. 2. Buffington contends that the enforceability of any obligation to indemnify Sasser which he may have acquired as a result of the termination agreement was contingent upon the entry of a judgment against Sasser in favor of a third party and that, because no such judgment or settlement was ever obtained against Sasser in the federal action, he (Buffington) is consequently entitled to summary judgment in the present action. This claim is without merit. OCGA § 51-12-32 (c) provides that, "[w]ithout the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim...." Accord Independent Mfg. Co. v. Automotive Prods., 141 Ga. App. 518 (1) (233 SE2d 874) (1977) (permitting a cause of action for indemnity to be maintained prior to judgment); Robert & Co. Assoc. v. Pinkerton & Laws Co., 120 Ga. App. 29, 33 (169 SE2d 360) (1969) (holding that a judgment fixing liability is not an absolute condition precedent to the enforcement of a contract of indemnity). Based on these authorities, we hold that the trial court was correct in ruling that it was not necessary that a prior judgment have been entered against Sasser as a condition precedent to his right to enforce Buffington's indemnity obligations under the termination agreement. It follows that Buffington's 803 motion for summary judgment on this basis was properly denied. 3. Buffington asserts, on three separate grounds, that the trial court erred in granting Sasser's motion for summary judgment. Initially, he submits that there exists a factual dispute as to whether the termination agreement ever became enforceable, due to Sasser's non-performance of an alleged obligation under that agreement to effect the transfer of the Milledgeville project subcontract from Dresco Corporation to Buffington and Dresco Mechanical Contractors, Inc. This interpretation of the agreement is, however, contradicted by its clear and unambiguous language, which obligated Buffington, rather than Sasser, to use his best efforts to effect such an assignment of the Milledgeville project subcontract. We find no evidence of any nonperformance on Sasser's part which would excuse Buffington from the performance of his contractual obligations under the termination agreement. Buffington secondly asserts the defenses of payment, release, novation, and accord and satisfaction, based on certain language appearing in a settlement agreement executed by the parties to the federal litigation, specifying that any right of recovery Sasser and Buffington might have against each other was to be contingent upon a recovery by the plaintiff in that action. However, that settlement agreement, which has been made a part of the record in the present action, also contains a reservation of rights clause specifying that any existing right of recovery Sasser might have against Buffington was not to be diminished as a result of the agreement. "There is no better settled rule as to the construction of contracts than that where the construction of any part is involved in doubt, an understanding of its meaning is to be sought in the light afforded by the meaning of all the other parts of the instrument. Even if one part of the contract is somewhat repugnant to the remaining portions, the true meaning of the contract as a whole is to be ascertained and enforced." Federal Rubber Co. v. King, 12 Ga. App. 261, 263 (76 SE 1083) (1912). See also OCGA § 13-2-2 (4). Construing the two contractual provisions in question as being harmonious rather than repugnant, it is clear that the provision making Sasser's future right of recovery against Buffington contingent upon a recovery by the plaintiff in the federal litigation applied only to such future claims as Sasser might have against Buffington as the result of the outcome of that action, whereas the reservation of rights provision applied to any existing right of recovery Sasser already had against Buffington at the time the agreement was signed. The claim asserted by Sasser in the present litigation for indemnification of the costs incurred in defending the federal lawsuit obviously was already existing and liquidated at the time the settlement agreement in the federal 804 action was executed, and it was in no way dependent on the validity or future enforceability of any claim asserted by the plaintiff in that action. It follows that the claim asserted by Sasser in the present case was not extinguished or diminished by the settlement agreement. Finally, Buffington contends that the indemnity clause contained in the termination agreement contravenes public policy and is unenforceable. In this regard, he relies on OCGA § 13-8-2 (b), which specifies that a provision in a construction contract purporting to indemnify the promisee against damages resulting solely from his own negligence is against public policy. However, the indemnity clause at issue here purports merely to "indemnify and save harmless [Sasser] from any and all liabilities and responsibility arising out of the sub-contracts...." It does not expressly apply to damage caused by Sasser's own negligence, nor is such indemnification sought in the present action. We must seek to construe the contract so as to uphold it in its totality. See OCGA § 13-2-2 (4). "It is not to be presumed that people intend to violate the law, and the language of their undertakings must, if possible, be so construed as to make the obligation one which the law would recognize as valid." Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (16) (44 SE 320) (1903). Accord Hartline-Thomas, Inc. v. Pew Constr. Co., 151 Ga. App. 598 (260 SE2d 744) (1979). We thus hold that the trial court acted properly in rejecting Buffington's public policy attack on the enforceability of the indemnification provision. Having rejected each of the three grounds asserted by Buffington for the reversal of the summary judgment, we accordingly affirm the judgment of the trial court in its entirety. Judgment affirmed. Carley, J., concurs. Benham, J., concurs in judgment only as to Division 3 and fully concurs as to Divisions 1 and 2.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266055/	236 P.3d 277 (2010) 2010 WY 103 James A. HERRERA, Appellant (Respondent), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Petitioner). No. S-09-0191. Supreme Court of Wyoming. July 28, 2010. 278 Representing Appellant: Donna D. Domonkos, Cheyenne, Wyoming. Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kristen J. Hanna, Senior Assistant Attorney General. Before KITE, C.J., and GOLDEN, HILL, VOIGT[], and BURKE, JJ. 279 KITE, Chief Justice. [¶ 1] After sustaining a work related injury ultimately requiring amputation of his right index finger, James A. Herrera began taking an anti-depressant medication. The Wyoming Workers' Safety and Compensation Division (Division) paid for the medication for two years and then denied further payment. Mr. Herrera objected and, after a contested case hearing, the Office of Administrative Hearings (OAH) awarded him benefits. The Division sought review in district court and the district court reversed the award. We reverse the district court's ruling. ISSUES [¶ 2] Mr. Herrera presents two issues for this Court's consideration: 1. Whether the OAH's findings and conclusions were supported by substantial evidence. 2. Whether the OAH's findings and conclusions are in accordance with the law. FACTS [¶ 3] On October 1, 2002, Mr. Herrera was working for Groathouse Construction as a cement finisher. He and a co-worker were setting up cement forms and the co-worker was using a 10-pound sledge hammer to pound in a stake to hold the forms. He swung the sledge hammer, missed the stake and struck Mr. Herrera's right hand. The blow crushed Mr. Herrera's right hand and index finger. Mr. Herrera filed a report of injury and the Division awarded him benefits. [¶ 4] Between the date of injury and 2006, Mr. Herrera underwent multiple surgeries on his right hand. In June of 2006, Mr. Herrera's physician prescribed the drug Lexapro to help relieve anxiety Mr. Herrera was experiencing as a result of his injury. After the surgeries proved unsuccessful in relieving Mr. Herrera's pain and other symptoms, his right index finger was amputated in March of 2008. [¶ 5] The Division paid medical and other benefits for the treatment of Mr. Herrera's hand, including the Lexapro prescription. In June of 2008, however, the Division issued a final determination in which it denied further payment for the Lexapro.[1] As grounds for the denial, the Division asserted that Lexapro, commonly used as an anti-depressant, was used to treat a mental injury and, pursuant to Wyo. Stat. Ann. § 27-14-102(a)(xi)(J) (LexisNexis 2007), "medications used to treat mental health conditions cannot be paid six months after the claimant reaches maximum medical improvement."[2] Mr. Herrera objected 280 to the determination and the OAH scheduled a contested case hearing. [¶ 6] Following the hearing in October of 2008, the OAH awarded benefits. In its ruling, the OAH stated: 26. [T]his case involved a medication which appears to be prescribed for multiple reasons and not just for treatment of depression or anxiety. Herrera was a very credible witness and his unchallenged testimony was that the Lexapro was prescribed to treat his pain and elevated blood pressure, in addition to his anxiety. Herrera credibly explained that when the doctor attempted to discontinue the Lexapro prescription, Herrera's hand pain increased significantly and due to the severe hand pain his blood pressure became dangerously high. Once Herrera restarted the prescription, his hand pain decreased and his blood pressure returned to a safe level. 27. Based on the unchallenged testimony and proof of the results of the Lexapro prescription, this Office finds the Lexapro is being prescribed to treat not only Herrera's anxiety, but also his physical injury. As the Lexapro is being used as a pain control for Herrera's significant injury, this Office finds it is not subject to the limits of Wyo. Stat. Ann. § 27-14-102(a)(xi)(J), (LEXIS 2002). Therefore, Herrera has proven, by a preponderance of the evidence, all of the essential elements of his claim. Specifically, Herrera proved he suffered a significant right hand injury while in the course and scope of his duties for Groathouse, Herrera is still being treated for his injuries, and Herrera's Lexapro prescription is for the treatment of Herrera's work related physical injury. [¶ 7] The Division sought review in district court. After considering the parties' arguments, the district court concluded substantial evidence did not support the OAH ruling and reversed the award of benefits. The district court stated: The finding that [Mr. Herrera]'s physical injury was treated with Lexapro is contrary to the overwhelming weight of the evidence. Instead, document evidence emphasizes [Mr. Herrera]'s "depression," "situational depression," "depressive anxieties," "acute stress reaction," and helpfulness to his mood. It is noteworthy that no physician testified and no medical evidence was presented connecting the physical injury and [Mr. Herrera]'s use of Lexapro. Substantial evidence does not support the finding that [Mr. Herrera] was being treated with Lexapro for a physical injury. Mr. Herrera appealed to this Court from the district court's ruling. STANDARD OF REVIEW [¶ 8] In considering an appeal from a district court's review of an administrative agency's decision, we give no special deference to the district court's decision. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). Instead, we review the case as if it had come directly to us from the administrative agency. Id. Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009), which states: (c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall: (i) Compel agency action unlawfully withheld or unreasonably delayed; and (ii) Hold unlawful and set aside agency action, findings and conclusions found to be: (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) Contrary to constitutional right, power, privilege or immunity; (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right; 281 (D) Without observance of procedure required by law; or (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute. [¶ 9] When the burdened party prevailed before the agency, we determine if substantial evidence exists to support the agency's decision by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's ruling. Dale, ¶ 22, 188 P.3d at 561. Findings of fact are supported by substantial evidence if, from the evidence preserved in the record, we can discern a rational premise for those findings. Bush v. State ex rel. Wyoming Workers' Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo.2005) (citations omitted). [¶ 10] If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Dale, ¶ 22, 188 P.3d at 561. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did based on all the evidence before it. Id. We review an agency's conclusions of law de novo, and will affirm only if the agency's conclusions are in accordance with the law. Id., ¶ 26, 188 P.3d at 561-62. DISCUSSION [¶ 11] Mr. Herrera contends the OAH's determination that he was entitled to benefits was supported by substantial evidence and must be affirmed. He points to his testimony that his physician prescribed Lexapro for pain, numbness and depression. He also points to his testimony that when he stopped taking Lexapro his pain increased, which caused his blood pressure to rise, and when he resumed taking Lexapro those physical symptoms subsided. Because the Division did not present evidence disputing his testimony, he contends, substantial evidence supported the OAH ruling. [¶ 12] The Division asserts the district court properly held substantial evidence did not support the OAH ruling that Lexapro was prescribed to reduce Mr. Herrera's pain, numbness and high blood pressure. The Division contends the evidence showed Lexapro was prescribed to treat Mr. Herrera's agitation, stress, anxiety and depression, that is, mental injuries. Citing § 27-14-102(a)(xi)(J), the Division asserts mental injuries are compensable only when there is evidence, which did not exist in Mr. Herrera's case, that a licensed psychiatrist or clinical psychologist diagnosed such injuries. In the absence of a mental health diagnosis, the Division contends Mr. Herrera had the burden of proving Lexapro was for treatment of physical injuries which, the Division asserts, he failed to do because he did not present medical evidence supporting his testimony. [¶ 13] Section 27-14-102(a)(xi)(J) excludes from coverage any mental injury unless it is caused by a compensable physical injury, it occurs subsequent or simultaneously with the physical injury and it is established by clear and convincing evidence. We addressed this exclusion in Brierley v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2002 WY 121, ¶ 17, 52 P.3d 564, 571 (Wyo.2002) (holding clear and convincing evidence established that the claimant's attempted suicide was the result of a mental injury suffered subsequent to a compensable injury); Sechrist v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2001 WY 45, ¶ 12, 23 P.3d 1138, 1141 (Wyo.2001) (holding the claimant established by clear and convincing evidence that her depression was caused by her compensable physical injury); State ex rel. Wyoming Workers' Safety and Comp. Div. v. Summers, 987 P.2d 153, 155-56 (Wyo.1999) (holding the OAH erroneously applied the exclusion to a diagnosis given in 1993 before the exclusion was enacted); and Frantz v. Campbell County Memorial Hosp., 932 P.2d 750, 754 (Wyo.1997) (holding the exclusion did not violate the equal protection clause of the Wyoming Constitution or the Fourteenth Amendment to the United States Constitution), overruled on other grounds in 282 Torres v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2004 WY 92, 95 P.3d 794 (Wyo.2004). None of these cases required us to consider the question presented here: whether substantial evidence supported the OAH's findings and conclusions that medication prescribed for a mental injury was also prescribed to treat a claimant's physical injury, making § 27-14-102(a)(xi)(J) inapplicable. [¶ 14] As reflected in paragraph 6 above, the OAH found that Mr. Herrera's physicians prescribed Lexapro not only to treat Mr. Herrera's depression and anxiety but also for treatment of his physical injury. Because it was prescribed to treat his physical injury, the OAH concluded it did not fall within the purview of § 27-14-102(a)(xi)(J), which applies only to mental injuries. The OAH made this finding on the basis of Mr. Herrera's unchallenged testimony that his physician prescribed Lexapro for pain and numbness as well as anxiety, when she discontinued the prescription, Mr. Herrera's pain increased significantly causing his blood pressure to rise, and when she restarted the prescription these physical symptoms lessened. The OAH found Mr. Herrera's unchallenged testimony concerning the reason for the prescription and the effects of discontinuing it to be "very credible" evidence that Lexapro was prescribed for treatment of his physical injury. [¶ 15] The duty to weigh the evidence and determine the credibility of the witnesses and evidence belongs to the OAH as the fact-finder. Stewart v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2007 WY 58, ¶ 14, 155 P.3d 198, 203 (Wyo. 2007); Olivas v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2006 WY 29, ¶ 17, 130 P.3d 476, 485 (Wyo.2006). The OAH has the opportunity to observe the witnesses and hear their testimony and is, therefore, in the best position to judge the witnesses' demeanor, truthfulness and veracity and decide which evidence is most dependable. Id. For this reason, we defer to the fact-finder on credibility findings. Stewart, ¶ 14, 155 P.3d at 203. We do not re-weigh the evidence or second-guess the agency's determinations as to witness credibility. Id. Our task is to review the record to determine whether substantial evidence supports the hearing examiner's decision. Id. [¶ 16] Our review of the record reveals that Mr. Herrera was the only witness who testified at the hearing. He testified that his surgeon, Dr. Heidi E. Jost, explained to him that she was prescribing Lexapro for the pain, numbness, depression and anxiety he was experiencing as a result of his injury. He testified that Dr. Jost told him that Lexapro would help him deal with the pain and other symptoms he was having and get on with his everyday life. Mr. Herrera also testified that his physician, Dr. Ann Thedieck, took him off Lexapro, but started him back on it when his pain level and blood pressure increased. Back on Lexapro, his blood pressure and pain level decreased and Dr. Thedieck advised him to continue taking it. [¶ 17] In addition to Mr. Herrera's testimony, the record contains medical records reflecting that Mr. Herrera had "pain, numbness and depression related to inability to return to his prior profession with huge financial implications" and "now takes Lexapro." The records also reflect that Mr. Herrera saw a mental health counselor twice after undergoing surgery to amputate his finger; however, the counselor noted after the second visit that Mr. Herrera was coping well and there were no plans for follow-up. [¶ 18] Although the medical records contained evidence that Lexapro was prescribed for depression and anxiety, the evidence presented showed that it also had the effect of treating Mr. Herrera's pain and blood pressure. The OAH found Mr. Herrera to be "very credible" and particularly found credible his testimony as to the physical effects of discontinuing, and then re-starting, the Lexapro prescription. Mr. Herrera's testimony in this regard was unchallenged. Despite references in the medical records to Mr. Herrera's depression, he was seen only twice for mental health counseling, was reported to be coping well mentally and was not seen again. The counseling records make no reference to Lexapro as a treatment option for his mental health issues. 283 [¶ 19] From the entire record and giving due regard to the OAH's duty to weigh the evidence and opportunity to observe Mr. Herrera, hear his testimony and assess his demeanor, truthfulness and veracity, we conclude the record contains such relevant evidence as a reasonable mind might accept as adequate to support the finding that Lexapro treated Mr. Herrera's physical injury. Dale, ¶ 22, 188 P.3d at 561. Substantial evidence supported the OAH'S findings that § 27-14-102(a)(xi)(J) did not apply. [¶ 20] In reaching the contrary result, the district court relied on references in the medical records to Mr. Herrera's "situational depression," "depressive anxieties," and "acute stress reaction." There is no doubt from the records that Mr. Herrera's physician and surgeon believed his physical injury had mental health consequences. Absent Mr. Herrera's testimony, we likely would uphold the district court's ruling. However, the task of reviewing courts is not to re-weigh the evidence but to decide whether the evidence was such as a reasonable mind might accept as adequate to support the finding. In the present case, the OAH assessed Mr. Herrera as a very credible witness whose unchallenged testimony concerning the effects of Lexapro on his physical injuries was very believable. We are not in a position to second guess that assessment. [¶ 21] Our conclusion that Wyoming's mental injury exclusion did not apply under the circumstances of Mr. Herrera's case gains support from a decision of a Louisiana Court of Appeals construing a similar statute. In Harris v. Christus St. Patrick Hospital, 857 So.2d 1278 (La.App.Ct.2003), the claimant sustained a serious work related hand injury requiring multiple surgical procedures. Her hand remained functionally useless and she ultimately was referred to a pain management specialist who prescribed anti-depressant medication in addition to pain medication. After a worker's compensation judge ordered payment of the anti-depression medication, the employer appealed claiming error on the grounds that La. R.S. 23:1021(7)(c) and (d) provided that mental injuries must be proven by clear and convincing evidence and were not compensable unless diagnosed by a licensed psychiatrist or psychologist and the diagnosis met the criteria established in the most current Diagnostic and Statistical Manual of Mental Disorders. [¶ 22] The court upheld the order requiring payment of the anti-depressant medication, finding that there was no evidence the claimant had psychological problems unrelated to her work injury and that her claim was based upon her "physical disability rather than the depression she suffered as byproduct of her physical injury." Id. at 1284. The court stated: Under these circumstances, we find that Ms. Harris' request for depression medication is not governed by the heightened burden of proof and diagnostic requirements of La.R.S. 23:1021(7)(c) and (d). We simply cannot conclude that the legislature intended to increase the cost and to extend the recovery time of each physical injury claim by requiring a psychiatric or psychological consultation whenever a physician in another specialty prescribes anti-depression medication in the course of treating that physical injury. Accordingly, we hold that La.R.S. 32:1021(7)(c) and (d) apply only when the claimant alleges to be disabled as the result of a mental injury or illness. We find the Louisiana appeals court's reasoning to be persuasive. [¶ 23] The Division asserts the district court properly reversed the ruling because the OAH relied almost exclusively on Mr. Herrera's testimony, which was not supported by medical evidence. We have said that "the testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker's testimony, and the worker's statements are corroborated by surrounding circumstances." Nagle v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2008 WY 99, ¶ 7, 190 P.3d 159, 163 (Wyo.2008). Here, the Division presented no evidence to impeach or discredit Mr. Herrera's testimony and his testimony was corroborated by medical records showing that he was treated with Lexapro for pain and numbness, as well as depression. 284 [¶ 24] Additionally, we have said that when a single incident is alleged to have caused an injury, medical testimony is not required if it is not essential to establish a causal connection between the occurrence and the injury. Gray v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2008 WY 115, ¶ 17, 193 P.3d 246, 252 (Wyo.2008). Here, there was no dispute concerning the incident that caused Mr. Herrera's injury; therefore, medical testimony was not required to establish that causal connection. The only question was whether Lexapro was prescribed solely to treat mental injuries or whether it was intended to treat Mr. Herrera's physical injury, specifically the pain and high blood pressure caused by the pain. Through his own testimony, Mr. Herrera sufficiently established that the Lexapro treated his physical injuries. Under the circumstances, he was not required to present medical testimony. [¶ 25] We reverse the district court's order and remand for reinstatement of the OAH's order awarding benefits. NOTES [*] Chief Justice at time of expedited conference. [1] The Division also issued final determinations denying travel reimbursement on the grounds Mr. Herrera did not obtain treatment from the closest available health care provider; denying temporary total disability benefits after May 28, 2008, on the ground Mr. Herrera was released to return to light duty work; denying coverage for the prescription drug Lyrica on the ground it was not for treatment of his work injury; and denying coverage for two appointments with a mental health counselor on the ground they were not related to his work injury. Prior to the contested case hearing, the parties reached a settlement agreement on these matters in which the Division agreed to withdraw its objections and pay the disputed amounts. Thus, the only matter left for determination at the contested case hearing was whether the Division's final determination denying payment for Lexapro should be upheld. [2] Section 27-14-102(a)(xi) provides in relevant part: (xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include: .... (J) Any mental injury unless it is caused by a compensable physical injury, it occurs subsequent to or simultaneously with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist or licensed clinical psychologist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. In no event shall benefits for a compensable mental injury be paid for more than six (6) months after an injured employee's physical injury has healed to the point that it is not reasonably expected to substantially improve.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266058/	239 P.3d 269 (2010) 237 Or. App. 74 STATE of Oregon, Plaintiff-Respondent, v. Kevin Thomas GANT, Defendant-Appellant. 072978; A140278. Court of Appeals of Oregon. Argued and Submitted May 28, 2010. Decided September 1, 2010. 270 Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services. Christina Hutchins, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge. LANDAU, P.J. Defendant appeals a judgment of conviction for one count of unlawful possession of methamphetamine. ORS 475.894. He assigns error to the denial of his motion to suppress evidence obtained during what he contends was an unlawful extension of a stop. We affirm. The relevant facts are undisputed. Defendant was riding a bike through a residential neighborhood one evening at approximately 10:00 p.m. Deputy Sorby observed that defendant was riding without a light, which, because it was after dark, was a traffic violation. Shortly after making that observation, Sorby saw defendant make an abrupt turn into the front yard of a residence. Sorby drove his squad car down the road past the residence and then turned the car around. When Sorby pulled up in front of the residence, defendant and the property owner were shouting and gesturing at one another. Sorby could hear the property owner yelling at defendant to get off of his property. There were several neighboring houses in close proximity to where the two men were arguing. Sorby called out to defendant, "Hey, can I talk to you for a second? What's going on?" Once defendant came over to the squad car, Sorby requested defendant's identification; Sorby then called in a records check on defendant. While he was waiting for the results of the check, Sorby asked defendant if he had any weapons on his person. Defendant responded that he did not, but Sorby requested permission to conduct a patdown search for weapons. Defendant consented. The patdown led to the discovery of a methamphetamine pipe and a bindle of methamphetamine. On the basis of that evidence, defendant was charged with unlawful possession of methamphetamine. Before trial, defendant moved to suppress the evidence, arguing that Sorby's request for defendant's consent to the patdown search was an unlawful extension of the investigatory stop. At the suppression hearing, Sorby testified that, when he called defendant over to his squad car, Sorby had reasonable suspicion that defendant was committing disorderly conduct or even criminal trespass. As part of his testimony about why he began questioning defendant about weapons, Sorby noted that, in his experience, people who commit crimes at night are often armed with firearms or knives. The trial court concluded that Sorby had lawfully stopped defendantwhether it be for the traffic violation, disorderly conduct, or criminal trespass. The court reasoned that, because Sorby's questioning about weapons and subsequent request for consent to a patdown search was relevant to the investigatory stop, the disputed evidence was lawfully obtained. Accordingly, the court denied defendant's motion to suppress. After a trial on stipulated facts, defendant was convicted as charged. On appeal, defendant renews his contention that Sorby's request for consent to a patdown search for weapons was an unlawful extension of the stop. Defendant does not argue that the stop itself was unlawful. Indeed, defendant acknowledges that Sorby had reasonable suspicion to stop defendant for disorderly conduct. Defendant insists, however, that, when Sorby began questioning defendant about weapons, Sorby was "proceed[ing] down an unrelated path." In defendant's view, a verbal altercation, in the absence of any threats of physical violence, has nothing to do with weapons. Furthermore, defendant argues, because his consent to the search was the result of that unlawful police conduct, the disputed evidence should have been suppressed. The state responds that the trial court correctly denied defendant's motion to suppress. 271 In the state's view, Sorby's questioning about weapons was related to his investigation for disorderly conduct and, thus, was entirely permissible. In any event, the state argues that defendant failed to demonstrate the necessary causal connection between the alleged illegality and defendant's subsequent consent to the search to warrant suppression of the evidence. A "stop" is a temporary restraint on a person's liberty for the purposes of a criminal investigation; to be lawful under Article I, section 9, of the Oregon Constitution it must be justified by reasonable suspicion of criminal activity. State v. Rodgers/Kirkeby, 347 Or. 610, 621, 227 P.3d 695, rev. dismissed, 348 Or. 71, 228 P.3d 582 (2010). Reasonable suspicion requires that a police officer subjectively believe that a person has committed a crime and that the belief be objectively reasonable in light of the totality of the circumstances. State v. Huggett, 228 Or.App. 569, 575, 209 P.3d 385 (2009) (citing ORS 131.605(5)). An officer unlawfully extends the scope of an otherwise lawful stop if the officer questions the person about matters unrelated to the basis for the stop without reasonable suspicion of further criminal activity. State v. Pewonka, 231 Or.App. 558, 559, 219 P.3d 606 (2009), rev. den., 348 Or. 115, 228 P.3d 1214 (2010) (holding that, when the defendant arrived at the scene of her husband's traffic stop and a police officerafter taking her driver's license to conduct a records checkascertained that her license was suspended, the police officer's questioning her about drug use instead of the suspension unlawfully extended the stop). If a defendant consents to a search and that consent is the product of an unlawful extension of the stop, the evidence derived from that search must be suppressed. See State v. Hall, 339 Or. 7, 36, 115 P.3d 908 (2005). In this case, as we have noted, it is undisputed that Sorby had reasonable suspicion to stop defendant for disorderly conduct. See ORS 166.025(1) (providing that "[a] person commits the crime of disorderly conduct * * * with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [if] the person * * * [e]ngages in fighting or in violent, tumultuous or threatening behavior * * * [or][m]akes unreasonable noise"). The only question, then, is whether Sorby unlawfully extended the stop when he requested defendant's consent to a patdown search for weapons. We conclude that Sorby did not unlawfully extend the stop. Because defendant was engaged in a loud verbal altercation with a homeowner who was ordering defendant off of his property, Sorby's questioning about whether defendant had any weapons and the subsequent request for consent to a patdown search for weapons was a reasonable part of the investigation of disorderly conduct. The trial court did not err in denying defendant's motion to suppress. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266071/	461 F.Supp. 1085 (1978) Thomas R. HICKEY v. COMMANDANT OF the FOURTH NAVAL DISTRICT and W. Graham Clayton, Jr.[], Secretary of the Navy and Harold Brown, Secretary of Defense. Civ. A. No. 78-3069. United States District Court, E. D. Pennsylvania. December 7, 1978. 1086 1087 1088 Jon Llewellyn Landau, Philadelphia, Pa., for plaintiff. Joseph M. Gontram, Asst. U. S. Atty., Philadelphia, Pa., for defendants. OPINION LUONGO, District Judge. Thomas R. Hickey, a seaman currently assigned to the Naval Support Activity at the Philadelphia Naval Base, petitions this court for a writ of habeas corpus. See generally 28 U.S.C. § 2241 (1976). He challenges as violative of Navy regulations and the due process clause his call to two years of active duty in an enlisted status, a commitment incurred when he was disenrolled from the Naval Reserve Officers Training Corps (NROTC) Program at Villanova University in December 1976. In addition, he alleges that under applicable Navy regulations his high blood pressure disqualifies him for service; consequently, he asserts that his certification by the Navy physician as medically fit for active duty was also in violation of the regulations. On September 13, 1978, I ordered the respondents to show cause why the writ should not be granted,[1] and a hearing was held on September 28, 1978. After careful consideration of the issues raised at the hearing and elaborated by the parties in their memoranda of law, I am persuaded that the writ must be denied. The facts in this case are largely undisputed. On January 11, 1973, Hickey volunteered for training in the NROTC Scholarship Program and executed an NROTC Scholarship Agreement. This agreement outlined Hickey's obligations as a program participant and warned that failure to complete the four-year course of instruction might result in his being called to active duty in an enlisted status. Defendants' Exhibit No. 3, ¶ 1(d) at 1. On September 7, 1973, Hickey signed his enlistment contract and received his appointment as a midshipman in the NROTC unit at Villanova University. Defendants' Exhibit No. 1 at 12-13, 37. During his sophomore year, Hickey began to experience academic difficulty, and a letter dated May 30, 1975, from the commanding officer of Villanova's NROTC unit informed Hickey that he was being placed on academic probation for the Fall 1975 semester. The letter noted several problems reflected by Hickey's academic record, including his failure in one course and his deficient quality point index. The unit commander also expressed his dissatisfaction with Hickey's progress toward fulfilling his degree and his NROTC curriculum requirements and reproved Hickey for his "extensive participation in extracurricular theatrical productions." After directing Hickey not to take drama courses or to work with the theater group during the period of his probation, the unit commander admonished Hickey to review his priorities and to limit his activities to those consistent with his ability to satisfy his NROTC and college degree requirements. The letter advised Hickey that failure to correct the deficiencies might result in a leave of absence status with the concomitant loss of financial benefits for the Spring 1976 semester and that low academic proficiency might thereafter warrant disenrollment. Defendants' Exhibit No. 3 at 3. See generally Defendants' Exhibit No. 5, ¶¶ 211, 212(c) at II-14 to -17 (corresponds to 32 C.F.R. §§ 711.211, .212(c) (1977)). During the Fall 1975 semester, Hickey experienced additional difficulties with the NROTC regimen when he failed to pass the required physical fitness test.[2] As a result, 1089 he was placed on probation for noncompliance with the physical fitness standards. A letter dated December 10, 1975, from the unit commander informed Hickey that his probation would extend through the rest of the fall semester and the holiday period, and that he would be retested before classes resumed in January 1976. Hickey was advised that he would be placed on leave of absence for the Spring 1976 semester if he did not pass the test and that his tuition benefits and subsistence allowance would be suspended until he complied with the physical fitness requirements. The unit commander warned Hickey that continued failure to meet the fitness standards might warrant disenrollment, which would entail an order to active duty in an enlisted status upon graduation. Defendants' Exhibit No. 3 at 5. Hickey failed the physical fitness test administered in January, and by a letter from the unit commander dated January 21, 1976, was placed in leave of absence status for the Spring 1976 semester. The letter instructed Hickey that he was otherwise required to participate satisfactorily in the NROTC program and that he must take the physical fitness test monthly until he passed. Hickey was again advised that repeated failure would likely result in his disenrollment. Id. at 6. See generally Defendants' Exhibit No. 5, ¶ 212(e) at II-17 to -18 (corresponds to 32 C.F.R. § 711.212(e) (1977)). Hickey had not passed the physical fitness test by the end of the Spring 1976 semester. By letter dated May 13, 1976, Hickey's leave of absence was continued throughout the summer of 1976 although he was allowed to participate in the summer at-sea training. Reiterating his dissatisfaction with Hickey's overall performance, the unit commander advised Hickey that successful completion of the at-sea training and compliance with the physical fitness standards were the minimum requirements for retention in the NROTC program. The commander warned Hickey that if he did not pass the physical fitness test by September 1, 1976, he would be recommended for immediate disenrollment and for call to active duty. Defendants' Exhibit No. 3 at 7. See generally Defendants' Exhibit No. 5, ¶ 212(h) at II-18 to -19 (corresponds to 32 C.F.R. § 711.212(h) (1977)). Hickey failed to pass the physical fitness test as required, and by letter dated September 10, 1976, from the senior member of Villanova's NROTC Board of Review, Hickey was directed to appear before the Board on September 14, 1976.[3] The letter incorporated by reference the unit commander's letter of May 13, 1976, noted Hickey's marginal overall performance in the NROTC unit as well as his failure to meet the physical fitness requirements, and stated that the purpose of the hearing was to evaluate Hickey's performance and to make recommendations about his future participation in the NROTC. Defendants' Exhibit No. 3 at 8. See generally Defendants' Exhibit No. 5, ¶ 210 at II-14 (corresponds to 32 C.F.R. § 711.210 (1977)). Hickey appeared before the Board as directed and answered questions about his NROTC performance, his academic deficiencies, and his failure to meet the physical fitness requirements. After the hearing, the Board submitted a report dated September 14, 1976, outlining its findings and conclusions and recommending Hickey's disenrollment. The report noted that Hickey had repeatedly failed the same math course, with the most recent failure occurring during the 1976 summer session. Hickey was at that time engaged with the theater group, and the Board believed that he had accorded a higher priority to that undertaking than to his math course. The Board found that Hickey's extracurricular activities required an excessive time commitment and that Hickey had failed to demonstrate the self-discipline necessary to budget his time to meet his academic obligations and the NROTC program requirements. Although the Board credited the sincerity of Hickey's desire to comply with the demands 1090 of the academic and NROTC regimens and to serve as a commissioned officer, it nevertheless concluded that Hickey's past performance indicated a lack of motivation and reliability, and that his future performance as a naval officer would most likely be substandard. Defendants' Exhibit No. 3 at 10-11. Hickey received a copy of the Board's report on September 15, 1976, with the direction to submit a written statement in response to the recommendation of disenrollment. See id. at 9. See generally Defendants' Exhibit No. 5, ¶ 213(q) at II-24 (corresponds to 32 C.F.R. § 711.213(q) (1977)). On September 17, 1976, the unit commander appended his statement to the Review Board's report, concurring in its findings. The commander referred to Hickey's unfulfilled promises of improvement and recommended that Hickey be disenrolled for academic reasons and for inaptitude based upon both his failure to meet the physical fitness requirements and his low aptitude evaluations. The commander also recommended that Hickey be ordered to serve two years of active duty upon graduation. Defendants' Exhibit No. 3 at 12. See generally Defendants' Exhibit No. 5, ¶ 213(g)(3) at II-21 (corresponds to 32 C.F.R. § 711.213(g)(3) (1977)). Hickey responded to the report of the Review Board on September 30, 1976. In his written statement, he acknowledged that he understood the import of the proceedings and that he had been treated fairly. He outlined the reasons for his difficulties with the physical fitness requirements and responded to the Board's statement that he had accorded a higher priority to his work with the theater than to his math course. Defendants' Exhibit No. 3 at 14-16. On October 6, 1976, the unit commander submitted the disenrollment report to the Chief of Naval Education and Training, who endorsed the recommendation of disenrollment and active enlisted service. Id. at 17. The Chief of Naval Education and Training forwarded the report to the Chief of Naval Personnel on November 3, 1976. Id. The Chief of Naval Personnel reviewed Hickey's record and on November 18, 1976, recommended to the Secretary of the Navy that Hickey be disenrolled. Id. at 19. The Chief of Naval Personnel also requested permission to assign Hickey to two years active enlisted service. Id. On November 19, 1976, Hickey's disenrollment as well as his order to active enlisted service were approved by the Assistant Secretary of the Navy. Id. On November 23, 1976, the Chief of Naval Personnel, enclosing correspondence to be forwarded to Hickey, notified the commander of the Villanova University NROTC unit that the Secretary of the Navy had approved both Hickey's disenrollment and call to active duty upon graduation. Id. at 18, 20. On December 2, 1976, the unit commander informed Hickey that his disenrollment had been approved and enclosed the November 23, 1976, correspondence from the Chief of Naval Personnel advising Hickey of his reversion to enlisted status in the Naval Reserve and of his obligation to serve two years' active duty upon graduation. Id. at 21, 18. In July 1978, Hickey received notice that he would be activated in August 1978. Id. at 23. Shortly thereafter, he wrote to both President Carter and the Chief of Naval Personnel, proposing to repay the benefits received under the NROTC scholarship program. Id. at 24-25; see id. at 27. Both the Assistant Secretary of the Navy, replying on behalf of President Carter, and the Assistant Chief of Naval Personnel rejected Hickey's appeal. Id. at 27-29. Hickey's active duty orders were issued on August 24, 1978, and he was ordered to report for a physical examination on August 28, 1978. Defendants' Exhibit No. 1 at 24. Hickey appeared for his physical and filled out the required medical history form, noting his suspicion that he suffered from high blood pressure. Defendants' Exhibit No. 2 at 6. The two blood pressure readings taken during the August 28, 1978, examination were 148/98 and 160/94, and Hickey was not qualified for duty at that time. Id. at 5. Hickey underwent a second examination on September 1, 1978, at which 1091 time his blood pressure registered 152/92, 148/92, 144/84, and 136/82. Id. at 2. When he returned for a third examination on September 8, 1978, his blood pressure was 158/88, and he was cleared for active duty. Id. at 3. He was ordered to report to the Naval Support Activity at the Philadelphia Naval Base where he began his active enlisted service on September 11, 1978. See Defendants' Exhibit No. 1 at 23. Although Hickey was subsequently directed to report to the U.S.S. Sellers in Charleston, South Carolina, the Navy agreed to defer Hickey's assignment out of this district pending action on the petition for a writ of habeas corpus. Hickey attacks his activation on several grounds. First, he argues that ¶ 213(t) of the regulations prescribed by the Chief of Naval Education and Training for the administration and management of the NROTC program mandates an active enlisted service obligation only where the NROTC student refuses to accept his commission or is determined to have wilfully violated his agreement. See generally Defendants' Exhibit No. 5, ¶ 213(t) at II-25 (corresponds to 32 C.F.R. § 711.213(t) (1977)). Hickey contends that no such determination was made with respect to his disenrollment and that the Secretary in imposing a two year active duty obligation therefore acted in violation of the regulation. Second, Hickey challenges on due process grounds the procedures employed by the Navy in the disenrollment and activation determinations. He alleges that the notice did not adequately explain the purpose of the hearing before the Review Board; he asserts that he was not advised of the right to counsel, that he was not given an opportunity to present witnesses or evidence on his behalf, and that he was not given the right to appeal; and he complains that he was denied the opportunity to contest the recommendation to call him to active duty. Hickey's third argument derives from the physical standards for entrance into the naval service outlined in the Navy's medical department manual. See generally Defendants' Exhibit No. 4, art. 15-6. Specifically, Hickey relies upon article 15-16(2)(j), which lists as a cause for rejection hypertension evidenced by "preponderant [blood pressure] readings of 140mm or more systolic in an individual 35 years of age or less . . . [or] over 90mm diastolic [in an individual of any age]." Petition for Writ of Habeas Corpus, Exhibit B. He suggests that according to this article, his blood pressure readings disqualify him from active duty and that his certification as medically fit was therefore made in violation of Navy regulations. The Navy advances two arguments which it contends preclude judicial review of both the initial determination to call Hickey to active duty and the Navy physician's certification that Hickey was medically fit. The Navy first argues that each decision involved the exercise of military discretion and as such is insulated from judicial scrutiny by the firmly entrenched judicial rule cautioning noninterference with legitimate military judgments. Second, the Navy contends that Hickey has failed to exhaust his administrative remedies and that his petition for a writ of habeas corpus is therefore premature. Although the principle that federal courts will not review discretionary decisions of military authorities made within their valid jurisdiction is firmly established, review is nevertheless appropriate where the challenged action is alleged to have violated the service's own regulations. See, e. g., Konn v. Laird, 460 F.2d 1318, 1319 (7th Cir. 1972); O'Mara v. Zebrowski, 447 F.2d 1085, 1087 & nn.3-4 (3d Cir. 1971) (collecting cases); Sullivan v. Mann, 431 F.Supp. 695, 698 (M.D.Pa.1977), aff'd mem., 571 F.2d 572 (3d Cir. 1978); Wright v. Hendershot, 420 F.Supp. 904, 907 (E.D.Pa.1976). Furthermore, the courts may review the procedures employed to determine if they comport with due process. See, e. g., West v. Chafee, 560 F.2d 942, 946-47 (8th Cir. 1977); Andrews v. Knowlton, 509 F.2d 898, 903-05 (2d Cir.), cert. denied, 423 U.S. 873, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975); Keister v. Resor, 462 F.2d 471, 474-75 (3d Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 151 (1972); O'Mara v. Zebrowski, 1092 supra, 447 F.2d at 1088-90; Vance v. United States, 434 F.Supp. 826, 832-33 (N.D. Tex.), aff'd mem., 565 F.2d 1214 (5th Cir. 1977). The Navy's second contention that Hickey's failure to exhaust his administrative remedies renders this action premature is somewhat more problematic. The Navy argues that appeal to the Board for Correction of Naval Records (BCNR) is a necessary prerequisite to judicial review. See generally 10 U.S.C. § 1552 (1976); 32 C.F.R. § 723 (1977). The threshold question, of course, is whether resort to the BCNR is an appropriate remedy under the circumstances of this case.[4] Arguing that it is not, the petitioner relies upon the fact that final approval of the activation order emanated from the Secretary of the Navy. In an attempt to buttress its invocation of the exhaustion doctrine, the Navy argues that the request for Hickey's activation was approved not by the Secretary of the Navy but by the Assistant Secretary. See Defendants' Exhibit No. 3 at 19 (memo from Chief of Naval Personnel to Secretary of Navy approved on November 19, 1976, by then Assistant Secretary of Navy, Joseph T. McCullen, Jr.). The Navy, by advancing this sophistic argument, unwittingly paints itself into a corner because its contention leads to only two conclusions, neither of which helps the Navy. Either the Assistant Secretary of the Navy was acting on behalf of the Secretary, in which case the order was a final order of the Secretary, or he was not, in which case the order was violative of the statute and the Navy regulations, which repose discretion for the activation of disenrolled midshipmen in the Secretary. See 10 U.S.C. § 2107(f) (1976); 32 C.F.R. § 711.214(f) (1977). Certainly, the more reasoned interpretation is that approval of the request to call Hickey to active enlisted service came from the Secretary, acting through his subordinate. See Andrews v. Knowlton, supra, 509 F.2d at 903. There exists a second, more compelling reason for rejecting the Navy's contention. Hickey was obviously unaware that the order for his activation actually came from the Assistant Secretary. Apparently, only the internal memo from the Chief of Naval Personnel to the Secretary of the Navy evidences the Assistant Secretary's stamp of approval. See Defendants' Exhibit No. 3 at 19. Obviously, this information was not communicated to Hickey. Indeed, the papers forwarded to the Villanova NROTC unit commander and to Hickey bore the information that the Secretary of the Navy had approved his disenrollment and activation. See id. at 18, 20. I therefore agree with petitioner that the Navy's argument on this score is clearly untenable. I do not agree, however, that recognition of the call to active duty as a final order of the Secretary automatically warrants circumvention of the BCNR. Hickey seeks not only release from active duty but also an order directing his honorable discharge from the Navy. Clearly, the BCNR is empowered to consider and act upon such requests. See, e. g., Seepe v. Department of the Navy, 518 F.2d 760, 762-63 (6th Cir. 1975). Moreover, the Board may not deny an application on the ground that action by the President or the Secretary is the source of the injustice or error. 32 C.F.R. § 723.3(e)(2) (1977); cf. Hodges v. Callaway, 499 F.2d 417, 422-23 (5th Cir. 1974) (referring to analogous Army Regulation). I conclude therefore that resort to the BCNR is appropriate in this case and that by ignoring this 1093 available route, the petitioner has failed to exhaust his administrative remedies. Nevertheless, dismissal of the petition does not necessarily follow from the foregoing conclusion. See generally Poe v. Kuyk, 448 F.Supp. 1231, 1235 n.5 (D.Del.1978); Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va.L.Rev. 483, 496-540 (1969) (cataloguing differing approaches in varying contexts). The Court of Appeals for the Third Circuit has adopted the position that the exhaustion doctrine is not inflexible. See Nelson v. Miller, 373 F.2d 474, 478-80 (3d Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980 (1967). The court agreed with prior decisions that the statute authorizing the creation of the Boards for the Correction of Military Records was not intended to affect judicial jurisdiction and counselled the district court to retain jurisdiction but defer decision unless the party invoking the court's aid demonstrated "special circumstances." Id. at 479 (citing Ogden v. Zuckert, 111 U.S.App.D.C. 398, 298 F.2d 312 (1961)). The court of appeals outlined several criteria to guide the district court's exercise of discretion: (1) whether the Service had been afforded the opportunity to interpret the challenged regulations (which might thereby moot the constitutional question); (2) whether pursuit of the administrative remedy would be futile; and (3) whether the delay involved would irreparably injure the petitioner. Id. at 479-80. The Supreme Court has subsequently reinforced the notion, implicit in Nelson v. Miller, that the decision to require exhaustion as a predicate to judicial review of the merits of a serviceman's complaint is one committed to the discretion of the court. Recognizing that the doctrine of exhaustion "is, like most judicial doctrines, subject to numerous exceptions," the Court advised that its application in specific instances "requires an understanding of its purposes and of the particular administrative scheme involved." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969) (citation omitted). The Court reiterated that principle in Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972), and explained that "[t]he basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." Examined against this background, several factors in the case before me militate against abstention, at least with respect to the challenge to the initial activation order. The most obvious is the delay involved in an appeal to the BCNR. As the Navy conceded during the hearing, proceedings before the Board could take as long as 18 months before the claim is finally resolved. This delay bespeaks the potential for irreparable injury to the petitioner who is currently fulfilling the active duty obligation here challenged. This consideration differentiates Hickey's position from the paradigm case in which resort to the service's Board for Correction of Military Records was required as a prerequisite to judicial review. See Hayes v. Secretary of Defense, 169 U.S.App.D.C. 209, 515 F.2d 668, 674-75 & n.30 (1975). Hickey seeks to obtain rather than to prevent a discharge from the service. Refraining from judicial action in the latter situation rarely involved the prospect of irreparable injury. Moreover, if the party seeking to remain in the service were discharged before the Board could review the claim, the Board could grant the serviceman full retroactive relief. See id. at 674 n.30. Here, however, even if the Board were to decide in Hickey's favor, the only relief forthcoming would be an honorable discharge. The Board could not adequately compensate Hickey for the time spent in active enlisted service pursuant to an order that was issued in violation of the regulations. On the other hand, the Navy makes a particularly cogent point in rebuttal, which considerably diminishes the force of petitioner's plea to the court's discretion. As the Navy points out, the Secretary approved 1094 the request to impose an active enlisted service obligation upon Hickey nearly two years ago. Hickey might have petitioned the Board to review the Secretary's action at any time thereafter, perhaps thereby obviating his obligation to report for active duty and the concomitant disruption to his civilian pursuits. The Navy argues that to dispense with the exhaustion requirement because of the possibility of injury to the petitioner attendant to delay "would cause the Government to suffer the consequences of Petitioner's failure to seek prompt administrative relief . . .." McGee v. Schlesinger, 378 F.Supp. 318, 322 (W.D.Tex.1974); accord, Seepe v. Department of the Navy, supra, 518 F.2d at 765. If prejudicial delay were the only consideration, I might agree with the Navy that the facts here do not warrant circumvention of the BCNR. I am, however, persuaded to the contrary by additional facts which strike the balance in favor of a decision on the merits of Hickey's challenge to the disenrollment procedures and activation order. As I have already noted, one reason for requiring exhaustion would be to provide the Navy with the opportunity to interpret its own regulations. See, e. g., Hodges v. Callaway, supra, 499 F.2d at 422. That consideration does not obtain here. The Navy has followed a fairly consistent policy of imposing an active enlisted service obligation upon midshipmen disenrolled from the NROTC Scholarship Program in their third or fourth years. See Petitioner's Exhibits No. 1-3; Defendants' Exhibit No. 3 at 27-29. Obviously, the Navy has concluded that the challenged regulation does not limit the discretion statutorily reposed in the Secretary. See generally 10 U.S.C. § 2107(f) (1976); 32 C.F.R. § 711.213(t) (1977). This longstanding Navy policy also prompts the conclusion that ordering Hickey to petition the BCNR would be the equivalent of ordering an exercise in futility. Cf. Bradley v. Laird, 449 F.2d 898, 900-01 (10th Cir. 1971) (administrative appeal not required where clearly articulated policy indicated that appeal would have been futile). The Navy's position on Hickey's disenrollment and activation, most recently announced by the Assistant Secretary of the Navy and the Assistant Chief of Naval Personnel in their August 1978 responses to Hickey's suggested alternatives to active duty, reinforces that impression. See Defendant's Exhibit No. 3 at 27-29. I can perceive no way in which my adjudication of the merits of Hickey's challenge to the activation order will frustrate the policies underlying the exhaustion doctrine. Hickey apparently does not dispute the facts upon which the disenrollment recommendation was based. Cf. United States ex rel. Brooks v. Clifford, 412 F.2d 1137, 1140 (4th Cir. 1969) (where record has already been made, only legal questions remain); United States ex rel. Whitaker v. Callaway, 371 F.Supp. 585, 590 (E.D.Pa.1973) (quoting McGee v. United States, 402 U.S. 479, 488, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971)) ("exhaustion . . . properly imposed where . . . claim to exemption depends on careful factual analysis" and administrative process has not yet marshalled and resolved relevant facts), aff'd mem., 510 F.2d 971 (3d Cir. 1975). He simply contends (1) that imposition of an active duty obligation without a finding that he wilfully breached his NROTC agreement violates the pertinent regulations and (2) that the procedures employed did not afford him due process. Hickey's complaint does not therefore implicate issues within the military's particular sphere of competence. Indeed, the court is better able to consider the legal questions involved than is the BCNR. See United States ex rel. Brooks v. Clifford, supra, 412 F.2d at 1139 (citing McKart v. United States, supra, 395 U.S. at 199, 89 S.Ct. 1657). Compare Committee for GI Rights v. Callaway, 171 U.S.App.D.C. 73, 518 F.2d 466, 474 (1975), with Bard v. Seamans, 507 F.2d 765, 770 (10th Cir. 1974). I therefore conclude that exhaustion is unnecessary in this instance and proceed to address the merits. Hickey first argues that the Secretary's approval of his activation order violated the regulation that outlines the active enlisted service obligation of students disenrolled from the NROTC. He relies upon ¶ 213(t) 1095 of instruction 1533.12A prescribed by the Chief of Naval Education and Training, which provides that "NROTC students (advanced course) who refuse to accept their commissions or are determined to have wilfully violated their agreements will normally be placed on active duty in an enlisted status." Defendants' Exhibit No. 5, ¶ 213(t) at 11-25 (corresponds to 32 C.F.R. § 711.213(t) (1977)). Hickey urges that this regulation permits the imposition of an active duty obligation in only two instances: (1) where the student refuses to accept his commission and (2) where the student is determined to have wilfully violated his agreement. Hickey suggests that because his disenrollment fits neither category, his call to active duty was void and he is entitled to separation from the Navy. In defense of the Secretary's action, the Navy characterizes ¶ 213(t) as a "simple statement of policy" and contends that ¶ 214(e)-(f) governed Hickey's activation. This regulation provides that "[d]isenrollment of NROTC Scholarship or College Program students in the advanced course requires determination of involuntary active enlisted service as permitted under Section 2105 or 2107, Title 10, United States Code" and vests the Secretary of the Navy with authority to make the final determination of involuntary enlisted service based upon recommendations from the Chief of Naval Personnel, the Chief of Naval Education and Training, and the professor of naval science. Defendants' Exhibit No. 5, ¶ 214(e)-(f) at II-25 to -26 (corresponds to 32 C.F.R. § 711.214(e)-(f) (1977)). If the Navy suggests by this argument that the validity of the Secretary's action depends only on a determination that he followed the procedures outlined in ¶ 214(e)-(f), they miss the thrust of petitioner's claim that the exercise of Secretarial discretion authorized by ¶ 214 pursuant to sections 2105 and 2107 is limited by ¶ 213(t). Although I agree with the petitioner that interpretation of ¶ 213(t) controls the result here, I cannot accept his contention that it mandates an active duty obligation in only the two circumstances specified. Far from being couched in absolute terms, the language is, at best, ambiguous.[5] Analyzed against the fairly routine practice of the Navy in calling to active duty scholarship program students disenrolled in their third and fourth years, the interpretation advanced by the Navy is as plausible as that urged by the petitioner, if not more so. Where a military regulation is susceptible of equally reasonable constructions, the Court of Appeals for the Third Circuit has admonished that the court may not substitute an alternative interpretation for that of the service. Keister v. Resor, supra, 462 F.2d at 474. I therefore reject Hickey's first claim that the Secretary violated the regulations in approving the request to call Hickey to active duty. Analysis of Hickey's second claim that he was denied due process entails two inquiries: whether he possesses a life, liberty, or property interest that implicates the fifth amendment guarantee of procedural due process, and if so, what process is due. With respect to the first and threshold consideration, I note the cases dealing with the activation of reservists and the separation of cadets from the service academies, in which the courts have reviewed the applicable procedures to determine if they comport with the requirements of due process. See, e. g., Andrews v. Knowlton, supra, 509 F.2d at 903-04; O'Mara v. Zebrowski, supra, 447 F.2d at 1088-90; Birdwell v. Schlesinger, 1096 403 F.Supp. 710, 717 (D.Colo.1975). Implicit in these decisions that have accorded some measure of due process to military personnel is the existence of a legally cognizable liberty or property interest. Inasmuch as Hickey's situation is sufficiently analogous to both that of the activated reservist and that of the disenrolled cadet, I believe that I may safely assume, for the purposes of this discussion, the existence of a constitutionally protected interest. Recognition of a legal interest, however, does not necessarily entitle Hickey to the full complement of procedural safeguards. Rather, due process is a flexible concept designed to ensure fundamental fairness, and its contours are shaped by the facts of the case. O'Mara v. Zebrowski, supra, 447 F.2d at 1089 (citing Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971)). What due process requires in a particular context "depends upon the balancing of various factors, including the nature of the private right or interest that is threatened, the extent to which the proceeding is adversarial in character, the severity and consequences of any action that might be taken, the burden that would be imposed by requiring use of all or part of the full panoply of trial-type procedures, and the existence of other overriding interests . . .." Hagopian v. Knowlton, 470 F.2d 201, 207 (2d Cir. 1972). Viewed against these criteria, the procedures employed by the Navy in Hickey's disenrollment and activation meet minimum due process requirements. It is a well-established principle that "[p]ersons in the military do not enjoy the full range of rights enjoyed by civilians . . .." O'Mara v. Zebrowski, supra, 447 F.2d at 1089; see Hagopian v. Knowlton, supra, 470 F.2d at 208; Keister v. Resor, supra, 462 F.2d at 474; Sullivan v. Mann, supra, 431 F.Supp. at 698. Hickey voluntarily entered the NROTC Scholarship Program and was apprised at the outset that failure to complete the four-year program might result in an obligation to serve on active duty in an enlisted status. Cf. O'Mara v. Zebrowski, supra, 447 F.2d at 1089 (voluntary enlisted reservists constitute class distinct from inducted servicemen). He was on notice throughout the probationary period and while on leave of absence that continued unsatisfactory performance of his NROTC obligations might result in his disenrollment and call to active duty. See discussion supra (detailing correspondence from unit commander). Notwithstanding these repeated warnings, Hickey insists that the notice requesting his appearance before the Board of Review did not adequately inform him of the purpose of the hearing. I cannot agree. The notice not only specifically stated that the Board was being convened to evaluate Hickey's performance and to make recommendations about his future participation in the NROTC but also referenced the May 13, 1976, letter from the unit commander which had noted Hickey's marginal performance and had cautioned that compliance with the physical fitness standards was but a minimum requirement for retention. See Defendants' Exhibit No. 3 at 7-8. In my opinion, the notice was sufficiently explicit and Hickey could not reasonably have failed to understand the purpose of the hearing or to comprehend what was at stake. Hickey further asserts that the hearing itself was constitutionally deficient because he was not informed of the right to counsel, because he was given no opportunity to present witnesses in his behalf, and because he was not afforded the right to appeal. As I have previously noted, what procedural safeguards are mandated is a function of the circumstances. Here, the disenrollment proceeding was noncriminal in nature and the action taken was not punitive; at most, it was an administrative sanction imposed for breach of the scholarship agreement. Cf. Mickey v. Barclay, 328 F.Supp. 1108, 1113-14 (E.D.Pa.1971) (activation of reservist pursuant to 10 U.S.C. § 673a regarded as administrative sanction). Second, the hearing was investigative rather than adversarial and the Navy did not proceed through counsel. Third, two of the events triggering Hickey's disenrollment his academic difficulties and his failure to 1097 pass the physical fitness test were objectively evidenced and apparently beyond dispute. Hickey was given the opportunity to explain the reasons underlying his difficulties to the Board, and inasmuch as they acknowledged his sincerity, I cannot say that Hickey was in any way disadvantaged by the lack of an opportunity to present witnesses in his behalf. See generally Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) (applicable safeguards depend upon whether hearing as a whole is fair). Although the NROTC regulations do not precisely provide for appeal, they do permit the NROTC student who has been recommended for disenrollment to submit a written statement in response to the Board's findings. See generally Defendants' Exhibit No. 5, ¶ 213(q) at 11-24 (corresponds to 32 C.F.R. § 711.213(q) (1977)). This statement forms part of the record that is ultimately reviewed by the Chief of Naval Personnel before he makes his recommendation to the Secretary of the Navy. See generally Defendants' Exhibit No. 5, ¶¶ 213(g), 214(e), at II-21, -25 (corresponds to 32 C.F.R. §§ 711.213(g), .214(e) (1977)). Hickey contends that he was substantially prejudiced because he was denied the opportunity to respond to the unit commander's recommendation of disenrollment and activation. I cannot credit this assertion, for in my view, the statement of the unit commander simply endorsed the Board's findings and added nothing to the record. Nevertheless, Hickey argues that he should have been afforded the opportunity to contest the recommendation that he incur an active service obligation and suggests that the Secretary's failure to promulgate standards governing activation of disenrolled cadets worked to his detriment. With respect to the latter contention, the Secretary is not required to outline in detail the rules governing decisions committed to his discretion. See West v. Chafee, supra 560 F.2d at 947. With respect to the former, I cannot conceive how Hickey would have benefitted had he been provided the opportunity to respond to the recommendation that he be called to active duty. The only criterion limiting the Secretary's exercise of discretion in imposing an active duty commitment is disenrollment, and Hickey was permitted an adequate opportunity to present his explanation on that score. Hickey's final argument relates to his certification as medically fit for active duty. He cites his various blood pressure readings and asserts that under the medical standards governing entry into naval service, he should have been disqualified for active duty. Defending Hickey's medical certification, the Navy relies upon a different set of standards, the retention standards, which list as a cause for "rejection for appointment, enlistment, and induction . . . [h]ypertension evidenced by preponderant diastolic blood pressure over 90mm or preponderant systolic blood pressure over 159mm at any age." Compare Petition for Writ of Habeas Corpus, Exhibit B, article 15-16(2)(j) (entry standards) with Defendants' Exhibit No. 4, article 15-27-2-19(b) (retention standards). Unlike the challenge to the regulation relating to disenrollment and activation, the balance here tips in favor of requiring the petitioner to pursue his administrative remedies. Not only is there sufficient confusion concerning which medical standards govern in this situation but it is not at all clear whether the standards outlined in each article are absolutely disqualifying or permit the exercise of discretion. See Defendants' Exhibit No. 4, articles 15-2 to -4. A question also arises with respect to the meaning of the word "preponderant." I cannot say whether the examining physician may consider only those readings taken on a given occasion or whether he must include readings taken during prior examinations. Furthermore, it is unclear whether the physician may rely upon one reading that is within the articulated limits or whether the inclusion of the word "preponderant" implies that the physician must take several readings. Because the Navy is better able than I to make these determinations, the petitioner must first avail himself of existing in-service procedures. 1098 For the reasons outlined above, I conclude that the petitioner is not entitled to a writ of habeas corpus, and accordingly will deny his petition. The foregoing shall constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a). NOTES [*] The name of the respondent Secretary of the Navy is misspelled in the caption of the pleadings and papers filed in this case. The Secretary of the Navy is W. Graham Claytor, Jr. [1] At that time, Hickey also requested a temporary restraining order to prevent his assignment to the U.S.S. Sellers in South Carolina. The Navy, however, agreed to defer implementation of Hickey's orders until resolution of this controversy. [2] This failure to meet the physical fitness standards is unrelated to Hickey's later problem with high blood pressure. Nothing in the record suggests that Hickey's difficulty with the physical fitness regimen resulted from anything other than lack of physical conditioning. [3] Although Hickey had alleged in his petition that he had received only verbal notice of the disenrollment proceeding, he acknowledged at the hearing on the petition that he had received the mailed notice. Petition for Writ of Habeas Corpus ¶ 10. [4] During the hearing and in his supplemental memorandum of law, the petitioner attempted to refute the applicability of 10 U.S.C. § 938 (1976), which permits "[a]ny member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that officer is refused redress, [to] complain to any superior commissioned officer . . .." I did not understand the Navy to have specifically argued the viability of this remedy at the hearing. Indeed, the petitioner himself introduced the nonrelevance of § 938 in anticipation of the Navy's exhaustion argument. Inasmuch as the Navy's memorandum is devoid of any reference to this section, I believe that it is sufficient to acknowledge my agreement with petitioner that § 938 is inapposite where the action challenged is an order from the Secretary. [5] The ambiguity of ¶ 213(t) is illustrated by the varying policies adopted by the individual NROTC units. Cornell University, for example, advised its third-and-fourth year scholarship students that activation would follow voluntary withdrawal or disenrollment for wilful inaptitude, wilful academic failure, or disciplinary reasons. Petitioner's Exhibit No. 5. Although the unit's adherence to such a policy might well change the complexion of the case, I need not decide that question because nothing in this record suggests that Villanova ever made such a representation to Hickey. Indeed, the attitude of the Villanova NROTC unit command, expressed in the commanding officer's correspondence to Hickey, is consistent with the Navy's position here and with the Navy's policy of routinely activating scholarship students disenrolled during their third or fourth years.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266075/	461 F.Supp. 348 (1978) In the Matter of OCEAN ELECTRONICS CORPORATION, Debtor-in-Possession. UNITED STATES of America, Plaintiff, v. OCEAN ELECTRONICS CORPORATION, Defendant. No. 77-00406K. United States District Court, S. D. California. April 10, 1978. John R. Neece, Asst. U. S. Atty., Michael H. Walsh, U. S. Atty., San Diego, Cal., for plaintiff. James S. Munak, O'Neill & Munak, San Diego, Cal., for defendant. MEMORANDUM OF OPINION GORDON THOMPSON, Jr., District Judge. This is an appeal from the bankruptcy judge's decision in Case No. 77-00406-K, declaring a security interest claimed by the 349 Small Business Administration in proceeds from the sale of certain equipment owned by the debtor, Ocean Electronics Corporation, invalid and unenforceable against the debtor as debtor-in-possession. The appeal has been timely perfected, and jurisdiction is proper, pursuant to 28 U.S.C. § 1334. The facts are not in dispute. In February 1973, San Diego Trust and Savings Bank (hereinafter "Bank") advanced a loan in the principal sum of $22,000 to Steven L. Milis, doing business as The Photo Shoppe, secured by a perfected security interest in all furniture, fixtures, machinery and equipment. This loan was made in participation with the Small Business Administration (hereinafter "SBA") and was made subject to a 90 percent guaranty by SBA. Thereafter, in August 1973, Mr. Milis conveyed his interest in the property subject to the bank's and SBA's security interest to his wholly owned corporation, Photo Shoppe, Inc. (hereinafter "Photo Shoppe"). The bank timely filed an amendment to its original Financing Statement Form UCC-1 naming Photo Shoppe as its new debtor. It is not disputed that at all times material herein the security interest of the bank and SBA was duly perfected and fully enforceable against the equipment belonging to Photo Shoppe. On or about August 1, 1975, Photo Shoppe sold the property subject to the security interest of the bank to Ocean Electronics Corporation (hereinafter "Ocean") without knowledge to or consent by the bank and SBA. The bank first learned of this unauthorized sale on August 27, 1975, and thereafter, for a period of several months, the bank and Ocean had numerous discussions concerning a possible assumption by Ocean of the indebtedness owed by Photo Shoppe. During this period, Ocean paid and the bank accepted nine installments owed by Photo Shoppe in the total sum of $3,753.20. Ocean never assumed the indebtedness and, on November 19, 1976, the bank assigned its interest to SBA. On February 17, 1977, Ocean filed a voluntary petition seeking to effect a plan of arrangement under Chapter XI of the Bankruptcy Act and on February 18, 1977 the Bankruptcy Court below entered its order authorizing Ocean to conduct business as debtor-in-possession. On June 28, 1977 the equipment claimed by SBA was sold at public auction in open court free and clear of liens with the liens, if any, to attach to the net sale proceeds. Thereafter, on January 24, 1978, the Chapter XI proceedings were dismissed and Ocean was adjudicated a bankrupt. The issues on appeal before this court are as follows: 1. Whether the United States can be estopped from asserting its right as a secured creditor; 2. Whether the United States waived its security interest in the debtor's property; 3. Whether a secured creditor is required to take any further steps to protect his security interest if he is aware that the debtor has transferred the security to a third person; and 4. Whether the United States, assuming it is not a secured creditor, has any priority over the class of general unsecured creditors. However, the only issue which needs to be addressed by the court is whether the security interest which SBA had perfected in the equipment when held by Photo Shoppe survived the subsequent transfer of assets to Ocean. Although federal common law is determinative where the United States is a necessary party to a lawsuit, the courts will be guided by the principles set forth in the Uniform Commercial Code when determining the rights of parties to secured transactions. United States v. Hext, 444 F.2d 804 (5th Cir. 1971); United States v. Hughes, 340 F.Supp. 539 (N.D. Miss.1972). The Uniform Commercial Code has been adopted by the State of California, effective January 1, 1965. The section most pertinent to this controversy is Uniform Commercial Code § 9306(2) which provides as follows: (2) Except where this division otherwise provides, a security interest continues in collateral notwithstanding sale, exchange 350 or other disposition thereof by the debtor unless the disposition was authorized by the secured party in the security agreement or otherwise, . . . The bankruptcy judge below ruled that, although the bank and SBA did not impliedly or expressly consent to the transfer from Photo Shoppe to Ocean, the failure of the bank and SBA to file a financing statement naming Ocean as debtor rendered the previously perfected security interest ineffective against Ocean. Under the facts and circumstances presented in the instant case, it clearly was not necessary for the bank or SBA to file a new financing statement, showing the transferee as a new debtor, to preserve their lien against the transferred property. Section 9402(6) of the California Commercial Code, in part here pertinent, provides: (6) . . . A filed financing statement remains effective with respect to collateral transferred by the debtor even though the secured party knows of or consents to the transfer. The language cited is clear and unequivocal; it manifests the intention of the drafters of the Uniform Commercial Code that once a security interest has been duly perfected, the security interest continues notwithstanding an unauthorized sale or other disposition of the collateral. As stated in official comment 8 to California Commercial Code § 9402: 8. Subsection (7) also deals with a different problem, namely whether a new filing is necessary where the collateral has been transferred from one debtor to another. This question has been much debated both in pre-Code law and under the Code. This Article now answers the question in the negative. Thus, any person searching the condition of the ownership of a debtor must make inquiry as to the debtor's source of title, and must search in the name of a former owner if circumstances seem to require it. Accordingly, the court finds that SBA's security interest in assets pledged by Photo Shoppe survives the subsequent transfer to Ocean, and there is no legal basis for holding that the SBA waived or should be estopped from asserting its security interest because it failed to file a new financing statement naming Ocean as the new owner of the collateral. The judgment of the Bankruptcy Court is hereby reversed with instructions that the claim of the United States be paid in its entirety from the cash proceeds derived from the sale.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266145/	461 F.Supp. 613 (1978) Sharon L. BRYANT, Plaintiff, v. Robert L. THOMAS, d/b/a Thomas Auto, and Rich Lewis, Defendants. Civ. No. 77-0-257. United States District Court, D. Nebraska. December 5, 1978. 614 Jon Okun, Omaha, Neb., for plaintiff. Eugene L. Pieper, Omaha, Neb., for defendants. MEMORANDUM DENNEY, District Judge. Sharon L. Bryant has filed this suit to obtain redress for alleged violations of the 615 Motor Vehicle Information and Cost Savings Act. Statutory damages, costs, and attorney's fees are sought under 15 U.S. C.A. § 1981 et seq. (1974). Bryant specifically alleges violations of §§ 1984, 1985, 1986 and 1988(b). A nonjury trial on the merits has been held, and final written arguments have been submitted to the Court. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law. In June of 1977, Steven Lambson read a newspaper advertisement regarding the sale of a 1973 Kawasaki motorcycle with a vehicle identification number (VIN) of F1105770. Lambson, the son of the plaintiff, made arrangements to look at the bike at the home of Robert L. Thomas, a used car dealer. While inspecting the vehicle in the presence of Mrs. Thomas, Lambson noted that the odometer read approximately 3300 miles. Impressed by the low mileage and the price of $295.00, Lambson talked to his mother about arrangements for the purchase of the Kawasaki. Lambson promised to pay for the motorcycle and Bryant agreed to obtain title in her name because of her son's age. Robert Thomas, who was not present when Lambson initially inspected the Kawasaki, drove the motorcycle to the Bryant home where he relinquished possession to Lambson subsequent to payment. Bryant attempted to transfer title after the purchase, but the county declined to issue a new certificate in the absence of a statement of odometer mileage by Thomas Auto, the transferor. She drove her car to the Thomas Auto lot, where Richard Lewis, the manager of Thomas' business, executed the required certificate of mileage on the basis of odometer information provided to him by the plaintiff. Since the motorcycle was not present, Lewis could not independently verify Bryant's figures. After receiving the odometer certificate, Bryant returned to the county's offices. Although title to the Kawasaki was issued in the name of the plaintiff, a discrepancy in the records of the county suggested that the motorcycle's odometer had been turned back. Lewis' certification, dated June 8, 1977, showed a reading of 3350 miles. Both the certificate of title of Thomas Auto and the odometer certification obtained from Thomas Auto's predecessor in title reflected a mileage of 14,863 only two months prior to the plaintiff's purchase. This discrepancy, as well as subsequent mechanical problems with the Kawasaki, prompted Bryant to retain counsel and initiate the present litigation. Robert Thomas, the sole proprietor of Thomas Auto, originally purchased a 1973 Kawasaki, VIN F1105770, from Associates Finance, a business located in Springfield, Missouri. This particular motorcycle had been repossessed by Associates, and was transferred to the Thomas Auto lot in Omaha subsequent to payment of the $375.00 purchase price by Thomas. Thomas testified that he never attempted to discern the mileage on the motorcycle before buying it in December of 1976. Although the vehicle was in Robert Thomas' possession from the date of purchase until June of 1977, a Nebraska certificate of title was not obtained in the name of Thomas Auto until April 6, 1977. This delay was apparently attributable to problems in the procurement of a certification of the odometer reading from the Missouri seller. Under Nebraska law, title cannot be obtained in the absence of a statement by the transferor setting forth the mileage of a motor vehicle. Neb.Rev. Stat. § 60-2304 (Reissue 1974). To effectuate the transfer, Thomas sent Charles Mangiarelli, a driver and title runner, to the county court house. Mangiarelli telephoned Rich Lewis at the Thomas Auto lot to ascertain the odometer mileage. Lewis copied the figure of 14,863 miles from the motorcycle and relayed the information to Mangiarelli, who filled in the required form, signed it for Lewis and obtained a Nebraska certificate of title. The Kawasaki remained at the Thomas Auto lot until late May of 1977. To avoid excessive use of the machine by prospective purchasers, the motorcycle was taken to the Thomas residence for sale through the 616 home. Shortly thereafter, the plaintiff purchased the vehicle. The Motor Vehicle Information and Cost Savings Act was passed by Congress "to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers." 15 U.S. C.A. § 1981 (1974). Motorcycles fall within the protective ambit of this statute. Grambo v. Loomis Cycle Sales, Inc., 404 F.Supp. 1073 (N.D.Ind.1975). This Court must now determine whether the specific provisions of this law have been violated by the defendants. In her complaint, Bryant alleges a violation of 15 U.S.C.A. § 1985 (Supp.1978). That section proscribes the fraudulent operation of a motor vehicle with knowledge that the odometer is disconnected or nonfunctional. No evidence of a violation of this section was adduced at trial. The Court declines to hold the defendants liable for fraudulent operation under § 1985. Close questions of fact present themselves when §§ 1984 and 1988 are examined in light of the record in this case. Section 1984 prohibits the alteration of a motor vehicle's odometer "with the intent to change the number of miles indicated thereon." 15 U.S.C.A. § 1984 (Supp.1978). Section 1988 directs the Secretary of Transportation to promulgate rules requiring a title transferor to disclose the cumulative mileage registered on a vehicle's odometer on a prescribed form. If the true mileage is different from the odometer reading, the transferor is required to disclose that the actual mileage is unknown. A violation of these rules, or a knowing disclosure of false information to the transferee of the vehicle, are considered violations of § 1988(b). To recover for a violation of a section of the Act, a civil litigant has the further burden of establishing an "intent to defraud" on the part of the transferor. 15 U.S.C.A. § 1989 (1974). Accord, Clayton v. McCary, 426 F.Supp. 248 (N.D.Ohio 1976); Pepp v. Superior Pontiac, 412 F.Supp. 1053 (E.D.La. 1976); Hensley v. Lubbock National Bank, 561 S.W.2d 885 (Tex.Civ.App.1978). See generally Annot., 28 A.L.R.Fed. 584 (1976). The meaning of the phrase "intent to defraud" has not been uniformly interpreted by the courts that have considered the question. Illustrative is the case of Mataya v. Behm Motors, Inc., 409 F.Supp. 65, 69 (E.D.Wis.1976), where the court held that the plaintiff must prove actual knowledge to establish fraudulent intent. A more prevalent definition of this concept appears in the case of Jones v. Fenton Ford, Inc., 427 F.Supp. 1328 (D.Conn.1977): A widely accepted rule of fraudulent intent, applicable here, is that civil liability may be imposed where it is proved that a defendant's statements were made recklessly or carelessly, without knowledge of their truth or falsity, or without reasonable grounds for belief in their truth, especially in a case where (1) the defendant was under a duty to have the knowledge in question, (2) a relation of trust or expert reliance existed, (3) a statement was made to induce a business arrangement, or (4) the knowledge or information in question was within the special province of the defendant. Such conditions being met, it does not matter whether or not the declarant actually believed the statement (or statements) in question to be true. (citations omitted). Jones v. Fenton Ford, Inc., supra, 427 F.Supp. at 1334. Accord, Pepp v. Superior Pontiac, supra, 412 F.Supp. at 1055. Under this odometer statute, fraudulent intent cannot be presumed, but it may be inferred from certain facts. Clayton v. McCary, supra, 426 F.Supp. at 258; Pepp v. Superior Pontiac, supra, 412 F.Supp. at 1055. The plaintiff's burden of proof in this regard is set forth in the case of Delay v. Hearn Ford, 373 F.Supp. 791, 796 (D.S.C.1974): All that is required of a purchaser before recovery will be allowed is that a change in the odometer reading has occurred and that the seller has failed to disclose the change. An intent to defraud arises from the proof of the foregoing in the absence 617 of an explanation of the odometer change. Subsequent courts in other jurisdictions have adopted this standard. See, e. g., Shore v. J. C. Phillips Motor Co., 567 F.2d 1364 (5th Cir. 1978); Klein v. Pincus, 397 F.Supp. 847 (E.D.N.Y.1975). The Delay court's interpretation of the burden of proof has also been adopted in this district. Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1386 (D.Neb.1977), aff'd 578 F.2d 721 (8th Cir. 1978). The Court concludes that the liability of the defendants should be determined in light of the standards set forth in Delay and Fenton Ford. A review of the evidence presented at trial demonstrates the closeness of the factual questions. Although persuasive arguments have been made by the defendants, the Court concludes that the plaintiff has established the requisite fraudulent intent. This conclusion cannot be drawn without difficulty. Bryant presented no evidence that the mileage on the Kawasaki was incorrect other than the odometer certificates themselves. No attempt was made to show any marks of tools that might have been used to tamper with the odometer. No changes were made in the appearance of the Kawasaki. No misrepresentations were made to Bryant or Lambson as to the motorcycle's mileage outside of the certificates of mileage. No proof of previous transgressions by the defendants was brought forward. Evidence demonstrating a circuitous transfer of title to avoid state odometer strictures was not presented. Despite these failings, Bryant has demonstrated that an inference of an intent to defraud is proper. It is clear that the odometer reading of 14,863 miles was taken while the bike was in Thomas' possession. The possibility of a clerical error is slight, as the difference in the two readings is not a minor one. No transposition of two numbers or omission of a single numeral is present here. Moreover, both Thomas and Lewis testified that only two motorcycles had been sold by Thomas Auto during the preceding year, as opposed to five hundred automobiles. The very small number of motorcycles that were present on the used car lot at the time that the first odometer certification occurred militates against the possibility that the mileage was obtained from the wrong bike. The implication of fraud is proper despite the fact that Thomas Auto lost money when the Kawasaki was sold to Bryant. Robert Thomas' statement that he purchased the motorcycle from Associates Finance for $375.00, although unsubstantiated by any receipts, is uncontroverted. Neither side disputes the fact that Lambson paid $295.00 for the vehicle. Although the sale of the Kawasaki for an $80.00 loss undermines the presumption of fraud from a motivational standpoint, it is not fatal to the plaintiff's position. Financial gain is not a requirement of fraud, although they often exist in tandem. The Secretary of Transportation did not deem monetary gain as crucial to a finding of a violation of odometer disclosure requirements when he included a transfer by gift as one of the regulated transactions. 49 C.F.R. § 580.3 (1977). Moreover, Lambson's subsequent mechanical difficulties with his motorcycle suggest that Thomas may have been aware of the vehicle's true condition before the newspaper advertisement was placed, and adjusted the sale price accordingly to insure a quick sale. Whatever the reason for the lower sale price, the fact remains that the odometer reading changed while the motorcycle was in the possession of the defendants. Given the lack of a convincing explanation, the Delay test is satisfied. The Court finds that Thomas violated § 1984, and that he intended to defraud the plaintiff with regard to the transfer. No liability attaches to Lewis under § 1984. The only contact he ever had with the bike was the recordation of its mileage in response to Charles Mangiarelli's telephone call. If the presumption of fraud extends to Lewis, then all of the employees who work at the Thomas used car lot would be similarly liable simply because of their access to the Kawasaki. The same could be said of all of the members of the Thomas *618 household. Given the lack of positive evidence that Lewis had anything to do with the odometer adjustment, the Court shall limit the inference of intent to defraud to the owner. The Court further holds that Thomas and Lewis, while acting in his capacity as an agent for Thomas, violated 15 U.S.C.A. § 1988 (Supp.1978). Thomas executed transfer of ownership papers and delivered these documents to Lambson without preparing an odometer certification as required by 49 C.F.R. § 580.4 (1977). This omission constitutes a violation of § 1988(b). Moreover, Lewis accepted the odometer mileage provided to him by Bryant as true, despite the existence of a prior and inconsistent odometer certification in the files of Thomas Auto. If Lewis, or any other employee of Thomas Auto, had referred to the documents within their possession, the higher mileage would have been readily apparent. No purpose is served in requiring a transferor to fill out a mileage certification if that document is not examined and compared with the actual odometer reading at the time of a subsequent sale. As the records of the purchase of the motorcycle were under Lewis' supervision by his own admission in his deposition, an exercise of due diligence would have revealed the existence of the mileage discrepancy. The failure of Lewis to investigate the records available constitutes a breach of § 1988. Clayton v. McCary, supra, 426 F.Supp. at 257. His certification of the mileage amounts to recklessness which "rises to the level of fraudulent intent." Kantorczyk v. New Stanton Auto Auction, Inc., 433 F.Supp. 889, 893 (W.D.Pa.1977). The Court finds that Robert Thomas, both individually and through his agent, violated § 1988 with intent to defraud. Rich Lewis, the manager of Thomas' sole proprietorship, cannot be held liable for a violation of § 1988. He does not fall within the definition of "transferor" contained within 15 C.F.R. § 580.3 (1977). As § 1988 applies only to title transferors, only Thomas, the sole proprietor of Thomas Auto, is accountable for the violation. Duval v. Midwest Auto City, Inc., 578 F.2d 721, 724-25 (8th Cir. 1978); Romans v. Swets Motors, Inc., 428 F.Supp. 106, 107-08 (E.D.Wis. 1977). As insufficient evidence exists to find that Thomas and Lewis conspired to violate the Motor Vehicle Information and Cost Savings Act, the Court will not hold the defendants liable under 15 U.S.C.A. § 1986 (1974). An order has been entered contemporaneously herewith in accordance with this Memorandum Opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372327/	124 Ariz. 24 (1979) 601 P.2d 1060 The STATE of Arizona, Appellee, v. Clarence Edward JONES, Appellant. No. 4618-PR. Supreme Court of Arizona, In Banc. September 24, 1979. Rehearing Denied October 30, 1979. 25 Robert K. Corbin, Atty. Gen., Phoenix by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee. Richard S. Oseran, Pima County Public Defender by Allen G. Minker, Asst. Public Defender, Tucson, for appellant. CAMERON, Chief Justice. This is a petition for review by the State of Arizona from a decision of the Court of Appeals vacating defendant Clarence Edward Jones' sentence after his probation revocation. We have jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 31.19, Arizona Rules of Criminal Procedure, 17 A.R.S. We must decide the following question on appeal: Does our previous case of State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976) prevent a judge who is sentencing the same defendant charged in two separate indictments from imposing a prison sentence in one indictment and granting probation in the second indictment? The facts necessary for a disposition of this matter on appeal are as follows. The defendant, Clarence Edward Jones, was indicted on 21 January 1976 for conspiracy to commit armed robbery and for attempted armed robbery. On 10 September 1976, he was indicted for second degree burglary and grand theft. Thereafter, the defendant entered into a plea agreement which disposed of both cases. He pled guilty to conspiracy in the first case and guilty to receiving stolen property in the second. The other counts were dismissed. The trial court sentenced Jones in both cases on 8 November 1976. Jones received ten years probation on the count in the first indictment and a sentence of not less than four nor more than five years in prison on the count in the second indictment. After serving two years, Jones was released on parole. Later a petition to revoke probation was filed and, after a hearing, the trial court revoked the probation and Jones was then sentenced to prison for four to five years and he appealed. The Court of Appeals, Division Two, relying on our decision in Pakula, supra, found the original probation was unlawful as having been mixed with the prison sentence and set aside the revocation of probation. We accepted jurisdiction in order to correct what we believe to be a misapplication of our previous decision in Pakula, supra, and resolve what the Court of Appeals referred to in its decision as the "complications" in the law as a result of Pakula, supra. In the case of State v. Pakula, supra, a multi-count indictment, we held that (1) it was impermissible "on multiple counts in the same information, to impose consecutive periods of probation," and (2) that it was impermissible to mix confinement in the state prison on one count with probation on another count. This case was followed by State v. Jordan, 120 Ariz. 97, 584 P.2d 561 (1978) in which we stated, again in a multi-count indictment, that the trial court had no jurisdiction to impose a sentence and to concurrently place a defendant on probation. In State v. Carter, 116 Ariz. 595, 570 P.2d 763 (1977), the defendant was convicted of possession of marijuana and unlawful possession of narcotic drugs and sentenced to five years probation on each count to be served consecutively. He violated the terms of his probation and the trial court revoked the defendant's probation on one charge and imposed a prison term, and continued the terms of the probation as to the other charge. We stated: "The trial court's revocation of the probation for possession of marijuana and imposition of a prison term while continuing the probation on the possession of a narcotic drug charge is impermissible. State v. Pakula, supra." 116 Ariz. at 598, 570 P.2d at 766. 26 These cases were followed by the Court of Appeals case of State v. Catalan, 122 Ariz. 193, 593 P.2d 943 (App. 1979). In Catalan, the Court of Appeals noted that Pakula, Carter and Jordan, supra, all involved multiple counts in the same indictment. In Catalan, the trial court had sentenced the defendant to the Arizona State Prison for a term of not less than two nor more than four years. Two months later, in a different case, the same judge placed the defendant on five years probation for a separate offense. The Court of Appeals, in Catalan, affirmed the decision of the trial court relying upon our decision in State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978) stating: "In State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978) we have the reverse of the situation here. There, defendant was placed on probation for five years by a trial judge who had knowledge of a pending burglary charge. Five months later he was convicted of the burglary charge and sentenced to the state prison. Although the issue in Patton was whether the second judge abused his discretion in not placing the defendant on probation in view of the action of the first judge, the fact that the defendant was simultaneously on probation and serving a prison term was evident. Yet, the Court in Patton held that the sentence imposed was permitted, stating: `The granting of probation by a judge on one charge is in no way binding on another judge who is sentencing a defendant on a totally unrelated charge.' 586 P.2d at 639." 122 Ariz. 193, 593 P.2d at 945. We agree with the Court of Appeals and their reading of Patton, supra, that if the rationale in Pakula, Carter, and Jordan, supra, are to be followed, they must be strictly limited to cases wherein there is one indictment involving multiple counts. As long as there are separate indictments, one judge may do in each of the separate indictments what two judges could do at different times with the same separate indictments. The judge may do this in one hearing. Patton, supra. In the instant case, there being two separate indictments, the Court of Appeals erred in setting aside the revocation of probation. Patton; Catalan, supra. We are troubled, however, with the result of our decision in Pakula, supra, and believe it should be reconsidered. What we have held is that it is lawful for one judge to mix probation and imprisonment in two counts of two different indictments, but that he may not do so in two counts of the same indictment. Because the county attorney elected to charge in one indictment what he could charge in the two, the court is prohibited from mixing probation and imprisonment. This is not reasonable. There is logically no reason why a judge should not be able to do in one two-count indictment what he could also do in two one-count indictments. Admittedly, the rationale of Pakula had its footing in the separation of powers argument that it is impermissible for a person to be on probation and under control of the court and at the same time be in prison or on parole and under the control of the executive. The court in Pakula, supra, pointed out that control of the sentencing process was balanced among the legislative, executive, and judicial branches of government: "* * * The legislature sets the sentencing limits and distributes the authority to control the sentence, within those limits, in the courts, correctional authority, and the parole board. When a trial court attempts to mix periods of state imprisonment followed by probation it places the court in possible conflicts with the executive department since the control of the length and type of confinement has been granted to that department. The parole board can grant parole with supervision in the corrections department, and the efforts of the executive department in a rehabilitation effort may not be in harmony with the objectives of the court's probation department. * * " 113 Ariz. at 125, 547 P.2d at 479. We do not now believe that the possible conflict between the executive and judicial 27 branches over the control of the prisoner justifies the results that stem from Pakula, supra. A sentencing judge should not be limited by the fact that the defendant is guilty of two counts of the same indictment rather than one count in two indictments. Such a result is not mandated by reason or legal logic. Neither is this result mandated by any intent of the legislature. Part of the rationale in Pakula, supra, was that the legislature did not intend that the court have jurisdiction to sentence to imprisonment and grant probation at the same time: "It also appears that the legislative policy is that courts should either confine or suspend a sentence but not both. Until 1970 there was no authority for the superior court to use confinement as a condition of probation. (citation omitted) In 1970 the legislature amended A.R.S. § 13-1657 to permit the use of county jail confinement as a condition of probation in a suspended sentence. It is to be noted that the place of confinement was limited to the county jail which is consistent with the policy that probation supervision remains a matter of local responsibility." 113 Ariz. at 125, 547 P.2d at 479. Whatever support this statement had in legislative intent, it has been dissolved by our new criminal code: "§ 13-903. Calculation of periods of probation * * * * * * "D. If probation is imposed on one who at the time is serving a sentence of imprisonment imposed on a different conviction, service of the sentence of imprisonment shall not satisfy the probation." We do not retreat from our holding in Pakula, supra, that consecutive sentences of probation are unlawful. We feel, however, that we misread the legislative intent in Pakula, supra, when we held that a judge could not, even when strictly limited to those cases of multi-count single indictments, impose a prison term and probation at the same time. So much of Pakula, supra, and cases following which so hold are by this opinion overruled. Judgment affirmed. STRUCKMEYER, V.C.J., and HAYS, HOLOHAN and GORDON, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372345/	363 S.E.2d 241 (1987) Elvis K. BOLTON v. L.W. BECHTOLD, etc., Commissioner West Virginia Department of Motor Vehicles. No. 17411. Supreme Court of Appeals of West Virginia. November 17, 1987. *242 John S. Kaull, Clarksburg, for plaintiff. Charles G. Brown, Atty. Gen., Doren Burrell, Asst. Atty. Gen., for defendant. PER CURIAM: This is an appeal by the Commissioner of the West Virginia Department of Motor Vehicles from an order entered by the Circuit Court of Barbour County on January 3, 1986. That order modified a ruling of the Commissioner suspending the driver's license of Elvis Bolton, the appellee, for ten years for second offense driving under the influence of alcohol. The Commissioner contends that the circuit court erred in making the modification and we agree. Mr. Bolton was arrested on February 23, 1983 by a Philippi city police officer for operating a motor vehicle while under the influence of alcohol. On the basis of an affidavit executed by the arresting officer pursuant to W.Va.Code, 17C-5A-1 [1981] and mailed to the Department of Motor Vehicles, the Department entered an order on March 2, 1983 suspending Mr. Bolton's driver's license for ten years for driving under the influence of alcohol, second offense. Mr. Bolton requested an administrative hearing with regard to the suspension and the hearing was held on April 6, 1983. At the hearing the arresting officer testified that he saw Mr. Bolton's car run a red light at a high rate of speed, jump an eight-inch curb, pass through a parking lot, cross back over the highway, and come to rest at a gas station on the other side. When the officer approached, Mr. Bolton emerged from the car staggering. In addition, he was not standing firmly and his speech was slurred. Although the officer testified about the results of a breathalyzer test, those results were not considered by the Commissioner in making a decision because a proper foundation had not been established for their admission. Following the hearing, the Commissioner issued a final order on May 17, 1983 upholding the ten-year suspension which the Commissioner based on the finding that Mr. Bolton's license had been revoked previously as a result of a conviction in the Municipal Court of the City of Philippi on May 9, 1977 for driving under the influence of alcohol. Mr. Bolton appealed the Commissioner's order in the Circuit Court of Barbour County. On January 3, 1986, the circuit court entered an order ruling that under the law a municipal court conviction could not be used to support an enlarged ten-year suspension for driving under the influence of alcohol. The court modified the Commissioner's order and reduced the suspension period to six months. The Commissioner filed a motion to reconsider citing Shell v. Bechtold, ___ W.Va. ___, 338 S.E.2d 393 (1985). In Shell this Court addressed the question of whether a municipal court conviction for driving a motor vehicle while under the influence of alcohol could be used to enhance the administrative sanction of driver's license revocation. The Court concluded that it could. It appears that our holding in Shell v. Bechtold, supra, is dispositive of the case before us and that in light of our decision in Shell the circuit court's ruling was erroneous. In syllabus point 1 of Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980), we stated: In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law. Accordingly, the judgment of the Circuit Court of Barbour County is reversed, and this case is remanded for reimposition of the ten-year administrative sanction originally imposed. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372381/	226 Kan. 516 (1979) 601 P.2d 684 CITY OF JUNCTION CITY, KANSAS, Appellee, v. JANICE MARIE GRIFFIN, a/k/a/ JANICE MARIE JONES, Appellant. No. 50,749 Supreme Court of Kansas. Opinion filed October 27, 1979. Steven Hornbaker of Harper & Hornbaker, Junction City, argued the cause and was on the brief for the appellant. Michael P. McKone, Junction City, argued the cause and was on the brief for the appellee. The opinion of the court was delivered by HERD, J.: Janice Marie Griffin was found guilty by a jury of solicitation for prostitution in violation of Junction City city ordinance 12-509(a) and sentenced under city ordinance 12-509(b) to a mandatory 30 days in jail with no probation. Appellant appeals upon an agreed statement from the sentencing ordinance. We reverse. On April 29, 1978, appellant was arrested in Junction City and charged with solicitation for prostitution in violation of city ordinance 12-509(a) and was tried and convicted by the municipal court. She appealed and was tried and convicted by a jury in district court on September 25, 1978 and sentenced under ordinance 12-509(b), which requires a mandatory jail sentence without probation or parole. Appellant made application for probation which the district court denied on December 28, 1978. From that order this appeal is taken. Appellant argues the mandatory sentencing ordinance without probation or parole is unconstitutional in violation of the doctrine of separation of powers. We need not meet that issue. Junction City city ordinance No. 12-509(b) is in violation of the Code of Procedure for Municipal Courts, K.S.A. 12-4101 through 12-4701, 517 which contains a comprehensive code of criminal procedure. K.S.A. 12-4102 states: "This code governs the practice and procedure in all cases in municipal courts." This code preempts the field of criminal procedure in Municipal Courts except as provided in K.S.A. 12-4103: "This code is intended to provide for the just determination of every proceeding for violation of city ordinances. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. If no procedure is provided by this code, the court shall proceed in any lawful manner consistent with any applicable law and not inconsistent with this code." [Emphasis supplied.] Only where no procedure is provided can the procedure be varied and then only by the court. The code provides for probation and parole at K.S.A. 12-4511, which states: "The municipal judge may parole any person confined to jail as a result of a conviction of a violation of a city ordinance. The judge may set such conditions and restrictions as he or she sees fit to impose for a term not exceeding one year and may at anytime discharge such person for good cause shown." The Code of Procedure for Municipal Courts is exempt from the home rule provision of the Kansas Constitution (Kan. Const. Art. 12, § 5), because it is of statewide concern and is applicable to all cities. The express legislative intent is set out in K.S.A. 12-4102. In Claflin v. Walsh, 212 Kan. 1, 7-8, 509 P.2d 1130 (1973), we stated: "The optional powers of the legislature are set forth in Section 5 (b) as limitations or exceptions to the exercise of home rule power by cities. The home rule power is subject to optional control by legislative action in four specific areas: (1) Enactments of statewide concern which are applicable uniformly to all cities. (2) Other enactments of the legislature applicable uniformly to all cities. (3) Enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction. (4) Enactments of the legislature prescribing limits of indebtedness. "Section 5 (d) of Article 12 requires a liberal construction of the powers and authority granted cities for the purpose of giving to cities the largest measure of self-government. This provision simply means that the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it. Where the legislature has acted in some area a city's power to act in the same area should be upheld unless the legislature has clearly preempted the field so as to preclude city action. Unless there is actual conflict between a municipal ordinance and a statute, the city ordinance should be permitted to stand. [Citation omitted.] .... 518 "In some cases the legislative intention has been made clear and unequivocal. By specific language the legislative intent is shown to be that the statute is to be applied uniformly to all cities. Such a statute was involved in Ash v. Gibson, 146 Kan. 756, 74 P.2d 136, which concerned the application of the uniform act regulating traffic on highways. There it was pointed out that in K.S.A. 8-507 the legislature stated clearly that the provisions of that act should be applicable and uniform throughout the state and in all political subdivisions and municipalities therein. In K.S.A. 41-208, a part of the Kansas Liquor Control Act, the legislature stated clearly that no city shall enact any ordinance in conflict with or contrary to the provisions of the act. An interpretation of that statute was before the court in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524." See also City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975); Jennings v. Walsh, 214 Kan. 398, 521 P.2d 311 (1974); Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (1973). Matters under the Code of Municipal Court Procedure are of statewide rather than local concern. The public, parties and attorneys deserve to know the appropriate court procedure; it is an essential part of due process and the rule of law. In addition the code applies uniformly to all cities, making it exempt from the home rule provision in two categories. We hold Junction City city ordinance 12-509(b) is ultra vires and void to the extent it varies from K.S.A. 12-4511. The judgment of the district court is reversed and remanded for further proceedings consistent with this opinion. McFARLAND, J., dissenting. FROMME, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1726409/	970 So. 2d 845 (2007) HAMPTON v. STATE. No. 5D06-2660. District Court of Appeal of Florida, Fifth District. December 18, 2007. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1067691/	COURT OF APPEALS OF VIRGINIA Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia ACTUARIAL BENEFITS & DESIGN CORPORATION OPINION BY v. Record No. 0062-96-2 JUDGE LARRY G. ELDER DECEMBER 17, 1996 VIRGINIA EMPLOYMENT COMMISSION AND ROSEMARY LIPCSEY FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge (D. Shane Smith; Hugh M. Fain, III; Brian R. M. Adams; Spotts, Smith, Fain & Rawls, P.C., on brief), for appellant. Appellant submitting on brief. Lisa J. Rowley, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee Virginia Employment Commission. No brief or oral argument for appellee Rosemary Lipcsey. Actuarial Benefits & Design Corporation (appellant) appeals an order of the Circuit Court of the City of Richmond (trial court) affirming the Virginia Employment Commission's (commission) decision that Rosemary Lipcsey is entitled to full unemployment benefits. Appellant contends that the trial court erred because (1) the commission failed to make a finding that Ms. Lipcsey had good cause to resign as required by Code § 60.2-618(1), and (2) the commission's statutory interpretation of Code § 60.2-612(8) was erroneous. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings. I. FACTS Ms. Lipcsey worked as a nanny for either the president of appellant or appellant from August 22, 1993 to January 11, 1995. For the first few months, she cared exclusively for the president's children and was paid by the president's personal check. Starting in December, 1993, Ms. Lipcsey began caring for an additional child of an employee of appellant and her paychecks were thereafter drawn on appellant's account. On January 6, 1995, the president became angry with Ms. Lipcsey for dressing one of her children in a snowsuit that was intended as a gift for someone else. Ms. Lipcsey was offended at the manner in which the president had spoken to her and believed the president should apologize. During a meeting on January 9 concerning the snowsuit incident, the president failed to apologize and Ms. Lipcsey gave the president two weeks notice of her resignation. In the evening of January 10, Ms. Lipcsey informed an employee of appellant and left a note for the president indicating that she was sick with the flu and would be absent from work the following day. The next morning, the president called Ms. Lipcsey at home and, after a discussion, informed Ms. Lipcsey that she was discharged from her employment and that she should not report to work for the remainder of her -2- two-week notice period. Although appellant paid Ms. Lipcsey for January 9 and 10, Ms. Lipcsey was not paid for the remainder of her notice period. On January 24, Ms. Lipcsey filed a claim for unemployment benefits. A deputy of the commission determined that Ms. Lipcsey was eligible for full benefits effective from January 22. Following an appeal by appellant, a hearing was held and the appeals examiner affirmed the deputy's award of benefits. At the hearing, appellant offered no evidence that Ms. Lipcsey was discharged for misconduct. Appellant appealed to the commission. The commission affirmed the decision of the appeals examiner, finding that Ms. Lipcsey was discharged by appellant two days after tendering her notice of resignation and that her discharge was not due to misconduct. The commission also ruled that "claimant's benefit eligibility is not subject to a maximum limitation of two weeks because her discharge was not made effective immediately upon the presentation of her notice to resign to the employer." Appellant then filed a petition for judicial review with the trial court. The trial court affirmed the commission's decision, holding that the commission's findings of fact were conclusive and that the commission correctly concluded both that Ms. Lipcsey was not discharged due to misconduct under Code § 60.2-618(2) and that the two-week limit of Code § 60.2-612(8) did not apply to Ms. Lipcsey's case. -3- II. COMMISSION'S FAILURE TO MAKE FINDING REGARDING GOOD CAUSE Appellant contends that the trial court's affirmance of the commission's decision was erroneous because the commission failed to find whether or not Ms. Lipcsey had good cause for tendering her notice of resignation. Appellant argues that such a finding is required by Code § 60.2-618(1) before the commission can award Ms. Lipcsey benefits. We disagree. We hold that due to the commission's decision in this case it was not required to make a finding regarding Ms. Lipcsey's cause for tendering her notice of resignation. The statutory scheme for determining the qualification of a claimant for benefits contemplates a multi-staged shifting of the burden of proof between claimant and employer, and the commission is not required to determine the issue of a claimant's cause for leaving in every case. In order to receive unemployment benefits, a claimant must be eligible under Code § 60.2-612 and not disqualified under Code § 60.2-618. These code sections deal with different matters, and "[a] claimant must be eligible for benefits before his disqualification need be inquired into." Dan River Mills, Inc. v. Unemployment Comp. Comm'n, 195 Va. 997, 1000, 81 S.E.2d 620, 622 (1954). The claimant has the burden of proving he or she has met the eligibility conditions of Code § 60.2-612. Unemployment Comp. Comm'n v. Tomko, 192 Va. 463, 468, 65 S.E.2d 524, 527 (1951). Once a claimant has met this -4- burden, the burden shifts to the employer to prove that the claimant is disqualified. Shuler v. Virginia Employment Comm'n, 9 Va. App. 147, 149-150, 384 S.E.2d 122, 124 (1989). Under Code § 60.2-618(1), a claimant is disqualified if "he left work voluntarily without good cause." The burden is on the employer to prove that the claimant left work voluntarily. Id. If the employer proves that the claimant's separation was voluntary, the burden shifts again to the claimant to prove that he or she left employment for good cause. 76 Am. Jur. 2d Unemployment Compensation § 106 (1992); 81 C.J.S. Social Security and Public Welfare § 275 (1977). Thus, the issue of a claimant's cause for leaving arises only if the employer proves that the claimant left his or her job voluntarily. In this case, the issue of Ms. Lipcsey's reasons for tendering her notice of resignation never arose because appellant failed to prove that Ms. Lipcsey's separation was voluntary. The commission found that appellant discharged Ms. Lipcsey two days after she notified appellant of her pending resignation. In any judicial review of a decision of the commission, the factual findings of the commission are conclusive "if supported by evidence and in the absence of fraud." Code § 60.2-625(A). Although Ms. Lipcsey gave notice of her resignation on January 9, the commission's finding that Ms. Lipcsey was discharged is supported by her testimony that appellant's president told her on January 11, "Rosemary, I don't ever want you in my house again. -5- I want you out of my house as of today. I don't ever want you around me or, me or my children ever again." A claimant who gives notice of his or her resignation and is fired during the notice period and is not paid for the remaining portion of the notice period is considered involuntarily discharged. Shifflett v. Virginia Employment Comm'n, 14 Va. App. 96, 98, 414 S.E.2d 865, 866 (1992) (citing Boyd v. Mouldings, Inc., Commission Decision No. 23871-C (Sept. 13, 1984)); cf. Code § 60.2-612(8). Because appellant failed to prove that Ms. Lipcsey left voluntarily, the burden never shifted to her to prove good cause and the commission was not required to make a finding on this 1 issue. We hold that the trial court did not err when it affirmed the commission's decision that Ms. Lipcsey was not disqualified from receiving benefits. III. INTERPRETATION OF CODE § 60.2-612(8) Appellant contends that the trial court erred in affirming the commission's decision that Code § 60.2-612(8) did not apply to Ms. Lipcsey's case and that Ms. Lipcsey was entitled to full 1 Instead, this case was controlled by Code § 60.2-618(2), which disqualifies a claimant who "has been discharged for misconduct connected with his work." Appellant had the burden of proving that its discharge of Ms. Lipcsey was due to misconduct. Kennedy's Piggly Wiggly v. Cooper, 14 Va. App. 701, 705, 419 S.E.2d 278, 280 (1992). At the hearing before the appeals examiner, appellant offered no evidence to establish misconduct by Ms. Lipcsey. Therefore, the commission's decision that Ms. Lipcsey was not disqualified from receiving benefits was not erroneous. -6- benefits. Appellant argues that the commission erred when it interpreted "subsequently" in the statute to mean "immediately" and decided that Ms. Lipcsey's eligibility was not capped because she was fired two days after she gave notice of her resignation to appellant. We agree. The issue in this case is one of first impression in Virginia. We must decide whether the cap on benefits contained in Code § 60.2-612(8) applies only to a claimant who is terminated immediately after giving notice of his resignation. Code § 60.2-612(8) is essentially a codification of the commission's decision in Boyd v. Mouldings, Inc., except that it places a cap on the amount of benefits a Boyd-type claimant may receive. In Boyd, the commission held that a claimant who tendered her notice of resignation, was fired the next day, and was not paid her salary for the remainder of her notice period, had been separated involuntarily and was eligible for benefits. Commission Decision No. 23871-C (Sept. 13, 1984). In 1988, the General Assembly restricted the holding in Boyd by placing a two-week cap on the eligibility of claimants discharged before the effective date of their notice of resignation who would otherwise be disqualified from receiving benefits. Code § 60.2-612(8) states: An unemployed individual shall be eligible to receive benefits for any week only if the Commission finds that: * * * * * * * (8) He has given notice of resignation -7- to his employer and the employer subsequently made the termination of employment effective immediately, but in no case to exceed two weeks for which he would have worked had the employee separated from employment on the date of termination as given in the notice; provided, that the claimant could not establish good cause for leaving work pursuant to § 60.2-618 and was not discharged for misconduct as provided in § 60.2-618. (Emphasis added.) After the enactment of Code § 60.2-612(8), the commission has interpreted it to apply only when the termination by the employer immediately follows the receipt of a claimant's notice of resignation, such as when it occurs as "part of the same conversation or as soon as [the employee's] notice is discovered left on a supervisor's desk." Office of Commission Appeals, Virginia Employment Commission, Guide for Effective Unemployment Insurance Adjudication 27 (1990). "It is well established that the 'primary objective of statutory construction is to ascertain and give effect to legislative intent. A related principle is that the plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow or strained construction.'" Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 495, 452 S.E.2d 692, 694 (1995) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)). "'[W]ords and phrases used in a statute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest.'" Id. (quoting Woolfolk v. Commonwealth, 18 Va. App. 340, 347, 447 S.E.2d 530, 534 (1994)). -8- We hold that "subsequently" as used in Code § 60.2-612(8) means "at any time after notice is given and before the end of the notice period." This conclusion is dictated by the plain meaning of the word "subsequently" and the obvious intent of the General Assembly. First, "subsequently" is ordinarily accepted to mean "following in time; coming or being later than something else." Webster's Third New International Dictionary 2278 (3d ed. 1981); accord Commonwealth v. Ellett, 174 Va. 403, 410, 4 S.E.2d 762, 765 (1939). Construing it to mean "immediately" is contrary to its plain meaning. In addition, the General Assembly manifestly intended the two-week cap to apply to all Boyd-type claimants discharged at any time during their notice periods who are otherwise disqualified for benefits. This intent is apparent from the relationship between Code § 60.2-612(8) and the provisions regarding disqualification in Code § 60.2-618. Code § 60.2-612(8) expressly provides that the two-week cap does not apply to a Boyd-type claimant if claimant's employer subsequently terminated his or her employment for a reason other than misconduct and claimant can prove that he or she resigned for good cause "pursuant to § 60.2-618." 2 In other words, the General Assembly intended to cast the net of Code § 60.2-612(8) 2 The relevant part of Code § 60.2-612(8) says that the two-week cap applies "provided, that the claimant could not establish good cause for leaving work pursuant to § 60.2-618 and was not discharged for misconduct as provided in § 60.2-618." -9- wide enough to catch all Boyd-type claimants who are otherwise disqualified from benefits under Code §§ 60.2-618(1) and -618(2). In Boyd, the claimant was fired one day after giving her notice of resignation to her supervisor but before the expiration of her notice period. Boyd, Commission Decision No. 23871-C (Sept. 6, 1984). With this intent in mind, "subsequently" must mean "after notice is given but before the end of the notice period" because this is the only interpretation that results in the application of the two-week cap to all Boyd-type claimants otherwise disqualified under Code § 60.2-618, instead of the limited number who happen to be discharged immediately after tendering their notice of resignation. Moreover, interpreting "subsequently" in Code § 60.2-612(8) as suggested by the commission so that the two-week cap applies only to claimants fired immediately upon receipt of their notice of resignation would create a loophole not intended by the General Assembly and would thwart the purpose of the Unemployment Compensation Act (Act). The purpose of the Act is to provide temporary financial assistance to employees becoming unemployed "through no fault of their own." Gantt, 7 Va. App. at 634, 376 S.E.2d at 810. Code § 60.2-612(8) was passed to permit Boyd-type claimants who were neither allowed to work nor paid for their notice periods to receive benefits because these claimants were blameless for their unemployment during this period. Usually, claimants who tender notice of their resignation without good -10- cause are disqualified for benefits after the effective date of their resignation. Code § 60.2-618(1). However, interpreting "subsequently" to mean "immediately" would permit claimants who voluntarily resign to subvert Code § 60.2-618(1) and receive benefits following their resignations simply because their employer waited a few hours or days to discharge them. The commission argues the General Assembly has acquiesced to its interpretation of Code § 60.2-612(8) because "it has been uniformly applied for many years in administrative practice." Dan River Mills, Inc., 195 Va. at 1002, 81 S.E.2d at 623. However, the commission cites only three of its decisions that apply its interpretation of Code § 60.2-612(8) in the eight years since the statute's enactment, only one of which was decided more than two years ago. Tyson v. West, Crawley & Winn, P.C., Commission Decision UI-046906C (Jan. 10, 1995); Huestis v. Commonwealth, Commission Decision UI-045100C (June 16, 1994); Hall v. Paul Gordon Associates, Inc., Commission Decision UI-034206C (Sept 12, 1990). Thus, we cannot say that the commission's interpretation has been "uniformly applied for many years." In addition, it is well settled that "[a]n erroneous interpretation of a statute by those charged with its [administration] cannot be permitted to override its clear meaning. Amendments of statutes can only be made by the legislature and not by the courts or administrative officers charged with its enforcement." Sanitation Commission v. City of -11- Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978). We hold that the trial court erred when it affirmed the commission's decision that Code § 60.2-612(8) did not apply to Ms. Lipcsey's claim for benefits. As previously stated, Code § 60.2-612(8) applies to any claimant who (1) gives notice of his or her resignation and is then "subsequently" terminated effective immediately "after notice is given but before the end of the notice period," and (2) is otherwise disqualified under Code § 60.2-618(1) or -618(2). Ms. Lipcsey's case initially falls under Code § 60.2-612(8) because she tendered notice of her resignation and was subsequently discharged by appellant before the effective date of her resignation. In addition, she was only paid for the first two days of her notice period. However, we are unable at this point to dispose of Ms. Lipcsey's claim because the commission has not made findings on whether or not Ms. Lipcsey is otherwise disqualified for leaving work without good cause under Code § 60.2-618(1). Although we have held that Code § 60.2-612(8) applies to Ms. Lipcsey's case and the commission has already concluded that Ms. Lipcsey was not discharged for misconduct, as we discussed in Part II of this opinion, the issue of Ms. Lipcsey's reasons for her resignation did not arise because of the commission's application of Code § 60.2-612(8). For the foregoing reasons, we affirm the decision that Ms. Lipcsey was qualified for benefits because she was not discharged -12- for misconduct, but we reverse the decision that Code § 60.2-612(8) did not apply to Ms. Lipcsey's case. Therefore, we remand this case to the trial court with directions to reverse the commission in part and remand the claim to the commission for proceedings to determine whether Ms. Lipcsey's eligibility is limited to the twelve days of her notice period that were unpaid -13- because she cannot establish good cause for leaving pursuant to Code § 60.2-618(1). Affirmed in part, reversed in part, and remanded. -14-	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/1067695/	COURT OF APPEALS OF VIRGINIA Present: Chief Judge Moon, Judges Benton and Elder Argued at Richmond, Virginia FERN MAE ALLOCCA OPINION BY v. Record No. 0185-96-2 JUDGE JAMES W. BENTON, JR. DECEMBER 10, 1996 FRANCIS ANTHONY ALLOCCA FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY J. Peyton Farmer, Judge Robert B. Machen for appellant. R. Scott Pugh for appellee. This is an appeal from a final divorce decree that affirmed, ratified, and incorporated by reference a Property Settlement Agreement. Fern M. Allocca seeks to set aside the Agreement and argues that: (1) her husband repudiated the Agreement by obtaining discharge in bankruptcy; (2) the Agreement is unconscionable; and (3) the trial judge erred by admitting into the evidence, over a best evidence rule objection, a photocopy of the Agreement. For the reasons that follow, we affirm the decree incorporating the Agreement. I. After this divorce action was filed by the wife on December 19, 1994, she presented the husband with a proposal to settle their property rights. The husband refused that proposal and asserted that all marital property rights had been decided in 1989 when the parties entered into a Property Settlement Agreement. The husband filed a crossbill for divorce and requested that the 1989 Agreement be affirmed, ratified, and incorporated into the final decree. At a hearing to determine the validity of the 1989 Agreement, the evidence proved that the parties signed the Agreement on December 18, 1989. The circumstances of signing the Agreement were disputed. The wife testified that she had never seen the Agreement before signing, that the husband came to her place of employment with the Agreement, and that she signed the Agreement in the parking lot moments later. The husband testified that the parties discussed the Agreement thoroughly, caused the Agreement to be modified, and signed the Agreement at a local bank in the presence of a notary public. The notary public testified at the hearing and corroborated the husband's testimony regarding the signing of the Agreement. The evidence also proved that after the husband and wife separated and signed the Agreement, they sold their marital residence. As required by the agreement, they distributed the proceeds of the sale between them. Because they had performed all other agreed obligations, nothing remained to be done under the Agreement. During a brief reconciliation, the husband and wife purchased a residence in 1991 and signed a deed of trust note. When they again separated, the husband made the monthly payments on the deed of trust note. Several days after the wife filed this divorce action, the - 2 - husband filed for bankruptcy. The husband listed the wife on the bankruptcy schedules as a co-debtor on the deed of trust note. She received notice of the bankruptcy filing with other creditors. The husband was discharged in bankruptcy on April 19, 1995 while the divorce action was pending. Following the ore tenus hearing, the trial judge ruled in the divorce proceeding that the Agreement was not unconscionable and was valid. In the final decree of divorce, entered on December 22, 1995, the trial judge awarded the husband a divorce and incorporated the Agreement into the final decree. II. The wife argues that the husband's discharge in bankruptcy constituted a repudiation of the Agreement, giving her a right to rescind the Agreement. In support of her position, the wife relies upon Carter v. Carter, 18 Va. App. 787, 447 S.E.2d 522 (1994). In Carter, the husband filed for bankruptcy after he separated from the wife. See id. at 788, 447 S.E.2d at 523. He listed the wife as a creditor and identified his obligation to the wife under the parties' property settlement agreement. See id. At the time he sought discharge, the husband had not fully performed his obligations under the agreement and owed money to the wife. See id. Although the wife objected to the discharge, the bankruptcy judge ruled that the obligation was not in the nature of support and discharged the husband's debt to the wife - 3 - under the agreement. See id. While the bankruptcy was pending, the wife filed the Carter divorce action in the circuit court. See id. Upon the wife's motion, the judge in the divorce proceeding ordered rescission of the parties' agreement and ordered the husband to pay the wife additional sums of money. See id. On appeal from the final decree in Carter, this Court affirmed the decree and stated that "[b]y seeking and accepting discharge from his obligation under the agreement, [the husband] repudiated the agreement. He thereby failed in the due performance of his obligation thereunder, giving [the wife] the right to seek rescission pursuant to paragraph 22(a) [of the agreement]." Id. This case is distinguishable. Here, the husband did not seek discharge from his obligations under the Agreement. He sought discharge in bankruptcy from the deed of trust note for which he and the wife were jointly and severally liable. The Agreement did not assign to the husband the specific obligation to pay the deed of trust note, which was executed more than a year after the Agreement was signed. Moreover, unlike in Carter, when the husband in this case filed for bankruptcy, he had performed all obligations that he owed to the wife under the Agreement. He owed no debt to the wife that could be attributed to the Agreement. The wife argues that she was entitled to rescind the Agreement because the husband's bankruptcy was a breach of the - 4 - Agreement's indemnification clause and constituted a repudiation of the entire Agreement. We disagree. Preliminarily, we note that in Carter, this Court affirmed the rescission of the agreement because a specific provision in the parties' contract called for rescission upon breach. See Carter, 18 Va. App. at 790, 447 S.E.2d at 523. The Agreement in this case, however, contained no provision mandating rescission for breach or failure to perform. Indeed, the Agreement stated that a modification or rescission could be executed only in a written agreement signed by both parties. Although the Agreement in this case contained an indemnification clause, the evidence failed to prove a material breach. In the indemnification clause, the husband agreed "that he will not hereafter contract nor incur any debts, charges or liabilities for which his wife is, may be or may become liable, and . . . further covenants and agrees that he shall hold the wife free, harmless and indemnified of and from any and all debts, charges or liabilities, past, present or future, which are his debts, charges or liabilities." The wife made the identical agreement. By subsequently signing the deed of trust note, however, either the parties jointly violated the indemnification clause by creating a joint and several liability, or the indemnification clause did not apply to the deed of trust note because the note was a joint debt and not "his debt" or "her - 5 - debt." We cannot conclude that the indemnification clause, as worded in the Agreement, contemplated that the parties later would voluntarily create a joint and several liability. In any event, we need not decide whether the husband breached the indemnification clause because the evidence failed to prove that the wife suffered any loss as a result of the husband's bankruptcy. No evidence proved that any money was owed to the deed of trust creditor following the bankruptcy and foreclosure on the property. In addition, no evidence proved that the wife made payments to the deed of trust creditor after the husband ceased payments. Moreover, the husband performed all of his other obligations under the Agreement. Thus, the evidence failed to prove that the breach, if any, was material. In Jennings v. Jennings, 12 Va. App. 1187, 409 S.E.2d 8 (1991), we confronted a similar rescission argument. The agreement in Jennings included promises by the wife to seek a no-fault divorce and to pay her own attorney's fees. See id. at 1190-91, 409 S.E.2d at 11. Later, the wife sought a fault-based divorce and claimed that the husband should pay for her attorney's fees. See id. at 1198, 409 S.E.2d at 11. We stated: We find no merit in the husband's argument that the wife breached her only executory obligations under the Agreement and, therefore, that the Agreement should be rescinded. The writing evidences an intention to effect an equal distribution of the parties' property instead of protracted equitable distribution proceedings. The considerations involved in a property distribution include the wife's contributions to the well-being and maintenance of the - 6 - marriage, the duration of the marriage, the circumstances surrounding the marriage dissolution, and sundry other factors. . . . The obvious reach of the Agreement recognized much more than the wife's executory promises. . . . We conclude the alleged breaches were immaterial and did not amount to an abandonment of the Agreement. Id. at 1198-99, 409 S.E.2d at 15-16. Like the agreement in Jennings, the Agreement in this case was intended to settle all marital rights between the parties. The indemnification provision was just one of many considerations involved. Assuming arguendo that the husband's discharge in bankruptcy was a breach of the indemnification clause, an issue we need not decide today, we hold that this alleged breach did not constitute a repudiation of the entire Agreement. No evidence proved that the wife suffered any loss resulting from the alleged breach. Furthermore, the husband otherwise fully performed. "'Ordinarily, rescission will not be granted for breach of a contract which is not of such substantial character as to defeat the object of the parties in making the contract.'" Neale v. Jones, 232 Va. 203, 207, 349 S.E.2d 116, 119 (1986) (citation omitted). Accordingly, we affirm the trial judge's refusal to order rescission of the Agreement. 1 1 For the reasons stated in his dissenting opinion in Carter, see 18 Va. App. at 790-94, 447 S.E.2d at 524-26, Judge Benton would hold that any debt the husband owed to the wife, including indemnification, was discharged in bankruptcy by virtue of 11 U.S.C. § 727(b). See Judd v. Wolfe, 78 F.3d 110 (3d Cir. 1996); In re Beezley, 994 F.2d 1433, 1434-41 (9th Cir. 1993) (O'Scannlain, J., concurring); In re Doughty, 195 B.R. 1 (Bankr. D. Me. 1996). In this case, the evidence proved the wife received notice of the bankruptcy proceeding and was listed as a co-debtor - 7 - III. The wife also argues that the Agreement is unconscionable. In Drewry v. Drewry, 8 Va. App. 460, 383 S.E.2d 12 (1989), this Court stated the following: When a court considers whether a contract is unconscionable, adequacy of price or quality of value transferred in the contract is of initial concern. If a "gross disparity in the value exchanged" exists then the court should consider "whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resulting agreement unconscionable." Id. at 472-73, 383 S.E.2d at 18 (citation omitted). As the party seeking to have the Agreement voided as unconscionable, the wife bore the burden of "prov[ing] the allegations by clear and convincing evidence." Derby v. Derby, 8 Va. App. 19, 26, 378 S.E.2d 74, 77 (1989). On appeal, this Court must review the evidence in the light on the bankruptcy schedules. Furthermore, no evidence proved that the wife filed a timely complaint in bankruptcy to contest the dischargeability of the debt or the indemnification obligation. See 11 U.S.C. § 523; Fed. Rule Bankr. P. 4007. Therefore, the bankruptcy order was final. An order by the trial judge rescinding the Agreement would have violated the bankruptcy stay. Thus, for this additional reason, Judge Benton would affirm the trial judge's refusal to order rescission of the Agreement. - 8 - most favorable to the husband because he was the prevailing party below. See id. So viewed, the Agreement provided that all property the husband or wife obtained before the marriage, or during the marriage by gift or bequest, was to remain separate. They waived all rights to marital property, including their rights to each other's profit sharing, pension, and retirement plans. The marital home was to be sold and the proceeds used to satisfy all debts owed by the parties, except a debt on one automobile, which was to remain the husband's sole responsibility. The remaining proceeds from the sale of the home and the remaining balance in the parties' joint bank account were to be divided evenly between the parties. Finally, they both waived rights to spousal support. The evidence further proved that when the parties signed the Agreement in 1989, the husband had completed approximately eighteen years of service toward his pension. His pension would vest after two more years of service. The wife had completed five to seven years of service under her pension plan. Each agreed to waive marital rights in the other's pension, and they evenly divided the other marital property. Although the husband's pension was probably worth more than the wife's, no evidence proved the difference in values. Moreover, no evidence proved that the differences in the pensions "represent[ed] such a disparity in values to indicate that no reasonable person would have so contracted." Jennings, 12 Va. - 9 - App. at 1196, 409 S.E.2d at 14. The wife's evidence of a probable disparity in the values of the parties' pension plans was insufficient to prove by clear and convincing evidence a "gross disparity" in the entire values exchanged under the Agreement. See Drewry, 8 Va. App. at 473, 383 S.E.2d at 18; Jennings, 12 Va. App. at 1196, 409 S.E.2d at 14. Because the evidence failed to prove a gross disparity in the values exchanged, we need not decide whether the process of forming the Agreement was unfair. See Drewry, 8 Va. App. at 473, 383 S.E.2d at 18. Accordingly, we hold that the evidence was sufficient to support the trial judge's finding that the Agreement was not unconscionable. IV. The wife argues that the best evidence rule barred the admission into the evidence of a photocopy of the Agreement. We disagree. "[T]he best evidence rule requires that, to prove the contents of a document, the 'original must be produced unless it be shown that the original is unavailable, in which case secondary evidence may be introduced.'" Mostyn v. Commonwealth, 14 Va. App. 920, 923, 420 S.E.2d 519, 521 (1992) (quoting Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176, 179 (1991)). However, if a copy can properly be treated as a "duplicate original," the copy is admissible without regard to the availability of the original. See Frere v. Commonwealth, 19 - 10 - Va. App. 460, 466-67, 452 S.E.2d 682, 686-87 (1995) (treating a photocopy as a duplicate original and admitting it into evidence without requiring proof that the original was unavailable); 4 John H. Wigmore, Wigmore on Evidence 548 (1972) ("[A] duplicate . . . may be used without accounting for the nonproduction of [the original].") (emphasis omitted). This Court has noted that proper circumstances exist to treat a photocopy as a duplicate original when the accuracy of the photocopy is not disputed. See Frere, 19 Va. App. at 466, 452 S.E.2d at 686-87 (emphasizing that the appellant never asserted that the photocopy was inaccurate); Myrick, 13 Va. App. at 339, 412 S.E.2d at 179; Wigmore on Evidence at 434 ("Production of the original may be dispensed with, in the trial court's discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.") (emphasis omitted). In this case, proper circumstances existed to treat the photocopy as an original. The wife's counsel never asserted that the photocopy was inaccurate; counsel merely stated that "if [the husband] has the original, I'd like for him to put it in." The husband's counsel acknowledged that the original Agreement was extant but argued that a copy should nevertheless be admitted because, in her response to a request for admissions, the wife admitted that the photocopy was a true copy of the Agreement. Based on these arguments and circumstances, the trial judge - 11 - admitted a copy of the Agreement. We hold that the photocopy could be treated as a duplicate original and that the trial judge did not err in considering the wife's response to the request for admissions to establish that fact. Therefore, the copy was admissible without regard to the availability of the original. For these reasons, we affirm the final decree. Affirmed. - 12 -	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/1726416/	970 So. 2d 829 (2007) BROWN v. SMITH. No. 2D07-4984. District Court of Appeal of Florida, Second District. December 19, 2007. Decision without published opinion. App. dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266590/	165 Cal.App.4th 1198 (2008) In re JAMES C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAMES C., Defendant and Appellant. No. D051599. Court of Appeals of California, Fourth District, Division One. August 11, 2008. 1200 James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent. 1201 OPINION HUFFMAN, Acting P. J. Although the juvenile court has broad discretion to fashion probation conditions in delinquency cases, here we are presented with a probation condition that impermissibly infringed upon the minor's constitutional rights of freedom of travel, association and assembly. The juvenile court declared James C. a ward (Welf. & Inst. Code, § 602) after he entered a negotiated admission to receiving a stolen vehicle (Pen. Code, § 496d). The court placed James on probation and stayed a commitment to Camp Barrett for a period not to exceed 365 days, on the condition that James return to his residence with his grandparents in Tijuana, Mexico and not return to the United States while on probation. James is a citizen of the United States, and his grandparents are his legal guardians. James appeals, contending the probation condition that he not enter the United States was (1) unreasonable under People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545] (Lent), and (2) unconstitutional. We agree. FACTS On May 30, 2007, James, then 17 years old, attempted to drive a stolen vehicle into the United States at the San Ysidro port of entry. Officers at the primary crossing lanes stopped the vehicle and James was arrested. While inspecting the vehicle, officers discovered undocumented persons in it. After his arrest, James told officers that he knew the vehicle had been tampered with, but he was forced to drive it across the border by threats that "something" would happen to him if he refused. At the disposition hearing, the juvenile court and counsel discussed James's participation in attempting to smuggle undocumented immigrants across the border into the United States. The court then issued its order: "Here is what I'm going to do . . . I agree with [defense counsel], we're sometimes not consistent with these cases, these border cases. I have begun a consistentwhat I think is consistent disposition for most of these cases. And I'm going to follow that in this case as well. [¶] James is placed on section 602 probation on condition, number one, he is committed to Camp Barrett for a period not to exceed 365 days. That commitment is stayed. That means I'm sending you to camp for a year, but I'm not going to make you go today. You violate my orders you will go without any further discussions. You will be 1202 returned to your grandparents. They'll return you to Mexico. Tijuana. You will not enter this country while on probation to this court . . . . [¶] . . . [¶] I mean, you're not coming back into this country. I don't care if you are a citizen. I don't care if you have papers. You have no business, as terms of probation, coming back into the country after what you did in this case. So you will not re-enter this country. If you do, you go across the border, they will run you in the computer and it will show up that you're on probation to the court. They'll bring you here and they'll bring you to Camp Barrett for 365 days." DISCUSSION I PROBATION CONDITION WAS UNREASONABLE James contends the probation condition prohibiting him from entering the United States was unreasonable. The contention has merit. Preliminarily, we reject the Attorney General's argument that James forfeited his right to challenge the probation condition as unreasonable because he did not object below on this basis. (See People v. Welch (1993) 5 Cal.4th 228, 237 [19 Cal.Rptr.2d 520, 851 P.2d 802].) The Attorney General argues that defense counsel only objected to the probation condition on the basis that it violated his citizenship rights. However, defense counsel also told the court that it was not fair to prohibit James from entering the United States. And defense counsel also asked the court to reconsider the condition, pointing out, among other things, that James's crime was vehicle theft, not aiding and abetting smuggling. In our view, defense counsel made an adequate record to challenge the probation condition on the basis that it was unreasonable. The main purpose of probation "is to ensure `[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' (Pen. Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 [43 Cal.Rptr.2d 681, 899 P.2d 67] (Carbajal).) The Legislature has declared the primary considerations in granting probation to be: "the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant." (Pen. Code, § 1202.7.) Further, the Legislature instructs: "The court may impose and require. . . [such] reasonable conditions, as it may determine are fitting and 1203 proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j).) When a court grants probation, it has broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. (See, e.g., Lent, supra, 15 Cal.3d at p. 486.) "The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Carbajal, supra, 10 Cal.4th at p. 1121.) Probation conditions that regulate conduct "not itself criminal" must be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, at p. 486.) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or `"`exceeds the bounds of reason, all of the circumstances being considered.'"'" (Carbajal, supra, at p. 1121.) In imposing probation conditions, the juvenile court's power is even broader than that of a criminal court. (In re Christopher M. (2005) 127 Cal.App.4th 684, 692 [26 Cal.Rptr.3d 61].) Welfare and Institutions Code sections 727 and 730 authorize "the juvenile court [to] impose and require `any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.'" (In re Kazuo G. (1994) 22 Cal.App.4th 1, 8 [27 Cal.Rptr.2d 155].) However, regardless of the juvenile court's broad discretion to impose probation conditions, its authority to do so is not without bounds. James had no criminal history and no history of involvement with alcohol, drugs or gangs. He was not a high risk to reoffend. Prohibiting James from entering the United States was not reasonably related to his crime of receiving a stolen vehicle or to future criminality. The probation condition did not have a rehabilitative purpose. For example, typically in theft offenses, a condition of probation is to attend an antitheft course, but James's probation condition to not enter the United States makes an antitheft course monitored by a probation officer impractical. We conclude the probation condition that James not enter the United States was unreasonable. 1204 II PROBATION CONDITION WAS UNCONSTITUTIONAL James contends the probation condition was unconstitutional. The contention has merit. "Probation conditions have been upheld even though they restrict a probationer's exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation . . . ." (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084 [22 Cal.Rptr.2d 893].) But when a probation condition effectively banished the probationer from his own country, courts have found the condition unconstitutional. In In re Babak S., supra, 18 Cal.App.4th at page 1082, the court suspended a commitment to the California Youth Authority on the condition that the minor reside with his parents in Iran for two years, report to the probation officer as directed and not change his place of residence without the prior approval of the probation officer. Noting that the probation conditions effectively constituted a two-year banishment from the United States, the Court of Appeal found they did not pass constitutional muster. (Id. at pp. 1084-1085.) "Notwithstanding the good intentions of all the concerned parties in this case, the probation condition lacked any reasonable nexus to Babak's present or future criminality, violated his constitutional rights of travel, association, and assembly, and constituted a de facto deportation. In sum, we can perceive no reasonable basis for sustaining a condition requiring a minor to absent himself from the country of his residence." (Id. at p. 1085, fn. omitted.)[1] Appellate courts in other cases involving similar banishment probation conditions have held that such conditions are constitutionally infirm. In In re White (1979) 97 Cal.App.3d 141 [158 Cal.Rptr. 562], the trial court granted probation to a woman who pled guilty to prostitution on the condition that she not enter a specific designated area of the city. (Id. at pp. 143-144.) In throwing out the condition, the Court of Appeal noted: "In this case the matter of reasonableness is intertwined with constitutional issues. We conclude that the condition does not pass constitutional muster. . . . We conclude 1205 that the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law. (See 1 Blackstone, Commentaries 134; U.S. Const., art. IV, § 2 and the 5th, 9th and 14th Amends.; Cal. Const., art. I, § 7, subd. (a) and art. I, § 24 . . . . [¶] . . . [¶] Many other fundamental rights such as free speech, free assembly, and free association are often tied in with the right to travel. It is simply elementary in a free society. Freedom of movement is basic in our scheme of values. (Kent v. Dulles (1958) 357 U.S. 116, 126 [2 L.Ed.2d 1204, 78 S.Ct. 1113].)" (Id. at pp. 148-149; see also People v. Beach (1983) 147 Cal.App.3d 612, 621-623 [195 Cal.Rptr. 381] [probation conditioned on probationer relocating from community where she had lived for more than 20 years].) In People v. Bauer (1989) 211 Cal.App.3d 937, 940 [260 Cal.Rptr. 62], the trial court granted probation on the condition, among other things, that the defendant obtain the probation officer's approval of his residence. The Court of Appeal found this condition was unreasonable and an impingement on the defendant's constitutional right to travel and to freedom of association. (Id. at p. 944.) More recently, the Court of Appeal in Alhusainy v. Superior Court (2006) 143 Cal.App.4th 385 [48 Cal.Rptr.3d 914], held that a part of a plea bargain in which the defendant agreed to leave California was invalid. (Id. at pp. 390-392.) Here, it cannot be reasonably argued that the probation condition banishing James from the United States was narrowly drawn or specifically tailored to James. (See In re Babak S., supra, 18 Cal.App.4th at p. 1084.) Under the condition, James, a United States citizen, was completely banished from his country; the condition violated his constitutional rights of freedom of travel, assembly and association. "The court's power to condition probation `is not boundless . . . . Human liberty is involved. A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution.'" (People v. Bauer, supra, 211 Cal.App.3d at pp. 940-941.) James's constitutional rights were violated, as the Attorney General concedes. *1206 DISPOSITION The part of the dispositional order that conditioned probation on James's living in Mexico and not returning to the United States is reversed. McIntyre, J., and Aaron, J., concurred. NOTES [1] In In re Babak S., supra, 18 Cal.App.4th at page 1081, the probation officer recommended the probation condition after Babak's parents' request that the minor be permitted to live with them in Iran. Here, James's grandparents, who are his legal guardians, requested that James be placed with them.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372453/	561 F.3d 1004 (2009) WILLIAM O. GILLEY ENTERPRISES, INC., a Nevada corporation doing business in California and the estate of William O. Gilley, deceased; Dennis Decota, an individual; Patrick Palmer, an individual on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. ATLANTIC RICHFIELD COMPANY; Chevron Corporation; Exxon Corporation; Mobil Oil Opinion Corporation; Exxon/Mobil Corporation; Shell Oil Company; Texaco Inc.; Tosco Corporation; Ultramar Diamond Shamrock; Valero Corporation; Conocophilips Petroleum Corporation; Chevron/Texaco Corporation; Tesoro Corporation, Defendants-Appellees. No. 06-56059. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2008. Filed April 3, 2009. 1005 Charles M. Kagay, Spiegel, Liao & Kagay LLP, San Francisco, CA, for the plaintiffs-appellants. Timothy D. Cohelan, Cohelan & Khoury, San Diego, CA, for the plaintiffs-appellants. Hojoon Hwang, Munger, Tolles & Olson LLP, San Francisco, CA, for the defendants-appellees. 1006 Peter H. Mason, Fulbright & Jaworski LLP, Los Angeles, CA, for the defendant-appellee. David M. Foster, Fulbright & Jaworski LLP, Washington, DC, for the defendant-appellee. Patrick J. Sullivan, Law Offices of Patrick J. Sullivan, Oceanside, CA, for defendants-appellees ExxonMobil Oil Corp., Exxon Corp., and Mobil Oil Corp. Before: STEPHEN S. TROTT, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges. TROTT, Circuit Judge: The district court granted Defendants' motion to dismiss Plaintiffs' antitrust claim founded on § 1 of the Sherman Act, holding that 1) Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 107 Cal. Rptr. 2d 841, 24 P.3d 493 (2001), precludes the allegations made in the operative pleading; 2) Defendants' exchange agreements can not be aggregated to establish market power and anti-competitive effect; and 3) even if the exchange agreements could be aggregated, the absence of a conspiracy to limit supply and raise prices eliminates a causal connection between the exchange agreements and anti-competitive effect. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand. I BACKGROUND Plaintiff-Appellant William O. Gilley filed this class-action lawsuit in 1998 on behalf of himself and other wholesale purchasers of CARB gasoline in the state of California. CARB gas is a cleaner-burning fuel, and since 1996 it is the only type of gas that can be sold in California. The complaint alleged that Defendants-Appellees, major oil producers, violated § 1 of the Sherman Act by entering into a conspiracy to limit the supply of CARB gasoline and to raise prices. The allegations of the complaint were similar to those alleged in Aguilar, a class-action suit filed in California Superior Court in 1996. That suit was brought under the Cartwright Act, CAL. BUS. & PROF. CODE § 16720 et seq., California's equivalent to the Sherman Act. Aguilar, 107 Cal. Rptr. 2d 841, 24 P.3d at 502. The plaintiff in Aguilar was a retail purchaser and consumer of gasoline and sought to represent a class of retail purchasers. The plaintiff in this action was a wholesale purchaser and retail dealer of gasoline and sought to represent a class of wholesale purchasers. Both plaintiffs were represented by the same attorneys, and both actions targeted the same defendants for essentially the same allegedly unlawful conduct. Because of the similarity in the cases, the district court hearing this case stayed the suit pending the outcome of Aguilar. In Aguilar, the state superior court granted summary judgment to the defendants, concluding that there was insufficient evidence presented by the plaintiffs to allow a reasonable juror to find a conspiracy to limit supply and raise prices among the several gasoline companies. Id. at 503. The California Supreme Court affirmed. Id. at 521. As a result, Defendants in this case brought a motion for summary judgment arguing that Gilley's claims were barred by collateral estoppel. In response, Gilley offered a proposed amended complaint, which the court found insufficient. The district court, however, granted Gilley leave to provide another 1007 proposed amended complaint, which he did. On May 6, 2002, the district court granted Defendants' motion for summary judgment on that complaint, holding that Gilley was precluded by Aguilar from relitigating whether a conspiracy existed to limit supply and raise prices. However, the court granted Gilley further leave to amend the complaint to allege that "each of the bilateral agreements, entered into independently between various defendant gasoline companies, ha[s] anti-competitive effects and therefore violate[s] the Sherman Act." On May 24, 2002, Gilley filed the third post-Aguilar complaint, alleging that forty-four bilateral exchange agreements had the effect of unreasonably restraining trade in violation of § 1 of the Sherman Act and in violation of CAL. BUS. & PROF. CODE § 17200. On March 27, 2003, the district court granted Defendants' motion to dismiss that complaint with prejudice. With respect to the § 1 claim, the court explained that Gilley had not alleged any theory as to how any individual exchange agreement, which accounts for a small percentage of the relevant market, is able to inflate the price of CARB gasoline. The district court rejected Gilley's argument that the court could consider the aggregate effects of the individual bilateral agreements to allege an anti-competitive effectnamely higher gas prices. Gilley appealed to this Court, which reversed and remanded, holding that the district court erred in not giving Gilley an opportunity to correct the newly identified deficiencies. After the remand, the second amended complaint ("SAC") was filed. Most of the allegations of anti-competitive conduct and effect are stated in the following terms: [Defendant] entered into the following sales/ exchange agreements for delivery of CARB gas in [geographic market]: [list of exchange agreements.] [Defendant's] intent and purpose in entering into these sales/exchange agreements was to limit refining capacity for CARB gas and/or to keep CARB gas out of the spot market and away from unbranded marketers. These agreements have had the effect of raising CARB gas prices in [geographic market] above competitive levels, without any countervailing procompetitive benefit. The district court granted Defendants' motion to dismiss the SAC, holding that Plaintiffs failed to allege that the exchange agreements, when considered individually, would be capable of producing significant anti-competitive effects. We now review the district court's summary dismissal of the SAC. II DISCUSSION A. Standard of Review We review de novo a dismissal for failure to state a claim pursuant to Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Id. B. Analysis We address the following issues in this appeal: 1) the preclusive effect of the California Supreme Court's decision in Aguilar; 2) the pleading standard for § 1 claims; 3) the sufficiency of Plaintiffs' SAC; 4) Plaintiffs' standing to add Tesoro as a Defendant in the SAC; and 5) the state law claim under CAL. BUS. & PROF. CODE § 17200. 1. The Preclusive Effect of the California Supreme Court's Aguilar Decision. Gilley does not dispute that the decision in Aguilar has some preclusive effect in 1008 the current lawsuit, but he contends that his current claim is not entirely extinguished by Aguilar. In contrast, Defendants argue that all of the allegations in the SAC are precluded by Aguilar. We conclude that Gilley has stated a claim that is not precluded by the California Supreme Court's decision. The critical determination in Aguilar was that the plaintiff failed to provide sufficient proof of a fact necessary for the claim she had pled, specifically that Defendants conspired and acted collectively through exchange agreements to fix prices and/or control supply. As the California Supreme Court explained: "Aguilar had to present evidence that tended to exclude the possibility that the petroleum companies acted independently rather than collusively. This she did not do." Aguilar, 107 Cal. Rptr. 2d 841, 24 P.3d at 518. In the order granting Defendants' motion to dismiss, the district court in this case summarized its understanding of that finding: "With respect to exchange agreements specifically, the court found that the evidence showed independent action on the part of the petroleum companies rather than a collusive web of bilateral exchange agreements to control supply and prices." The district court, applying the doctrine of issue preclusion (or collateral estoppel), accepted as an established fact the finding that the defendants did not collude to control supply and prices through the exchange agreements. The California Supreme Court was clear in Aguilar, however, that the failure to prove that fact did not necessarily mean that plaintiff did not have a legally viable claim against Defendants: In alleging facts for her Cartwright Act cause of action, Aguilar proceeded on a theory, which was legally sound, that the assertedly unlawful conspiracy consisted of an agreement among the petroleum companies as competitors to restrict the output of CARB gasoline and to raise its price, and was unlawful per se without regard to any of its effects. In granting the petroleum companies summary judgment, the superior court did so on that theory. On appeal, Aguilar apparently attempted to introduce an alternative theory, which was also legally sound, that the assertedly unlawful conspiracy consisted of the various exchange agreements entered into by the various petroleum companies, and was unlawful because of its effects. The Court of Appeal rejected any such attempt as too late. To the extent that Aguilar makes the same attempt on review, we reject it for the same reason. Id. at 521, n. 35 (citations omitted). Plaintiff was not allowed to proceed with the alternative theory based on the effects of the exchange agreements, without proof of collusion, because the theory had not been timely pleaded, not because it was held to be defective, either legally or factually. The Aguilar decision does not preclude the latter theory in subsequent litigation. Issue preclusion is decided under the law of the state where judgment was entered. Ross v. Alaska, 189 F.3d 1107, 1110 (9th Cir.1999). Under California law, issue preclusion applies only if a number of conditions are satisfied. Calvert v. Huckins, 109 F.3d 636, 638 (9th Cir.1997). Among those conditions are "[the] issue must have been actually litigated in the former proceeding" and "the decision in the former proceeding must be final and on the merits." Id. Aguilar precludes a claim that depends upon proof of collusion by Defendants to use exchange agreements to control supply 1009 and prices, notably in the form of a per se claim of a horizontal price-fixing conspiracy,[1] but it does not preclude a claim that the bilateral exchange agreements have an anti-competitive effect on competition, despite the absence of collusion, under the rule of reason.[2] The SAC may include allegations which are precluded by Aguilar, but not of all of what the SAC alleges is precluded. To the extent that the SAC alleges a claim that Defendants have entered into exchange agreements, without a conspiracy to control supply or to set prices, and that those agreements aggregated together have an anti-competitive effect on competition in the relevant market, it has stated a claim that is not precluded by Aguilar. 2. The Pleading Standard for § 1 Claims. To successfully state a claim under § 1 of the Sherman Act, a plaintiff need only meet the notice pleading standard articulated in Fed.R.Civ.P. 8(a)(2). Bell Alt. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. at 1964, 167 L. Ed. 2d 929 (2007). Rule 8(a)(2) requires "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Id. (quoting Fed.R.Civ.P. 8(a)(2)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and `that a recovery is very remote and unlikely.' " Id. at 1965. Additionally, dismissals for failure to state a claim are disfavored in antitrust actions. Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 406 (9th Cir.1983). 3. The SAC is a Sufficient Pleading. Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." 15 U.S.C. § 1. However, it has long been recognized that Congress did not intend to give literal meaning to those words, but instead only intended to make unlawful unreasonable restraints on trade. State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997). Therefore, "to establish a claim under § 1 of the Sherman Act, the plaintiff must show 1) that there was a contract, combination, or conspiracy; 2) that . . . unreasonably restrained trade under either a per se rule of illegality or a rule of reason analysis; and 3) that the restraint affected interstate commerce."[3]Bhan, 929 F.2d at 1410. 1010 a. The First ElementExistence of an Agreement. Under the first element of a § 1 claim, a plaintiff must plead the existence of a contract, combination, or conspiracy, meaning a defendant did not operate unilaterally, but instead, at least two entities acted in concert. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984). Defendants argue that the exchange agreements are not concerted action. "Our antitrust law is clear that [a plaintiff] need not prove intent to control prices or destroy competition to demonstrate the element of an agreement . . . among two or more entities." Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1153-54 (9th Cir.2003) (internal quotation marks omitted) (noting that intent of the parties is to be evaluated under the second element of the § 1 analysis). The exchange agreements are "contracts." As a result, each bilateral exchange agreement, even without intent to control prices, provides an agreement that meets the first element of a § 1 Sherman Act claim. b. The Second ElementWhen Aggregated, the Exchange Agreements Unreasonably Restrain Trade. Under the second element of a § 1 claim, a plaintiff must show the challenged agreement unreasonably restrains trade by establishing anti-competitive effects. Bhan, 929 F.2d at 1410. To make this showing under the rule of reason analysis, a plaintiff generally must establish market power. Adaptive Power Solutions, LLC v. Hughes Missile Sys. Co., 141 F.3d 947, 951 (9th Cir.1998). "Market power is the ability to raise prices above those that would be charged in a competitive market." NCAA v. Bd. of Regents, 468 U.S. 85, 109 n. 38, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984). Because each of the exchange agreements arguably affects only a small amount of CARB gas, Plaintiffs pleaded the cumulative effect of a single Defendant's exchange agreements to show market power and anti-competitive effect. Plaintiffs argue correctly that the district court erred in not allowing them to allege the cumulative effects of a single Defendant's exchange agreements. They find support in Ninth Circuit and United States Supreme Court precedent, which has allowed the aggregation of multiple contracts when evaluating the legality of an individual contract. Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291 (9th Cir.1982); Fortner Enters. v. United States Steel Corp., 394 U.S. 495, 89 S. Ct. 1252, 22 L. Ed. 2d 495 (1969); Standard Oil Co. of Cal. & Standard Stations, Inc., v. United States, 337 U.S. 293, 69 S. Ct. 1051, 93 L. Ed. 1371 (1949); cf. 2 AREEDA & HOVENKAMP ¶ 310c1, p. 201 ("An aggregation of claims may produce sufficient proof of violation or injury where violation requires that a certain legal threshold be met and no claim standing alone is sufficient to meet the threshold."). In Twin City, we were presented with the issue of "whether a district court, in assessing the antitrust liability of a defendant, may look to the overall effects of a defendant's conduct in the relevant market, or is limited to looking at the market implications of the one contract between the antitrust plaintiff and defendant." 676 F.2d at 1302. We allowed aggregation, reasoning that a defendant who restrains trade by an obvious pattern and practice of entering into individual contracts should not be allowed to do piecemeal what he would be prohibited from doing all at once. Id. We held that, "[c]reating such a distinction would require courts to enforce arguably innocuous single contracts that belong to a pattern of contractual relations that significantly restrain trade in a relevant market." Id. at 1303. 1011 The district court and Defendants concede that aggregation of agreements is appropriate in some cases. Both, however, contend that aggregation should be allowed only in the context of "exclusive dealing" and "tying" cases because of the predictably anti-competitive effect of those practices market foreclosure to competitors. The district court reasoned that only those types of contracts can be aggregated because they have "a clear purpose and an identifiable effect" and because "[d]etermining the cumulative effect of such contracts can be done with relative ease." We disagree, as no general rule requires that only the easiest cases may be aggregated. As noted by the California Supreme Court, plaintiffs have a viable legal theory. See Aguilar, 107 Cal. Rptr. 2d 841, 24 P.3d at 521 n. 35 (noting an "alternative theory, which [is] also legally sound, that the assertedly unlawful conspiracy consisted of the various exchange agreements entered into by the various petroleum companies, and was unlawful because of its effects") (citation omitted). At the stage of a motion to dismiss for failure to state a claim, it is not our role to determine the soundness of Plaintiffs' economic theory. Even if we, as a savvy court, view actual proof of the facts pleaded in the SAC as improbable and conclude that a recovery is remote and unlikely, the complaint should still proceed. Bell Atl. Corp., 127 S.Ct. at 1965. The analysis we would have to undertake to dismiss the complaint here is not appropriate at the Rule 12 stage.[4] Defendants also argue that bilateral exchange agreements, in general, are an efficiency-enhancing distribution practice that promotes, not hinders, competition. The allegations contained in the SAC, however, are that these exchange agreements have anti-competitive effects. That exchange agreements like "exclusive dealing" and "tying" arrangements, may be efficiency-enhancing and thus procompetitive does not necessarily mean that the anti-competitive effects of those types of arrangements or agreements are always outweighed by procompetitive justifications. See Brown v. Hansen Publ'ns, Inc., 556 F.2d 969, 971 (9th Cir.1977) (noting that "exclusive dealing" contracts may be procompetitive); NCAA, 468 U.S. at 104 n. 26, 104 S. Ct. 2948 (noting that "tying" arrangements may be procompetitive). This loggerhead is precisely what a rule of reason analysis would address. The formulation of the dispute at issue was long ago laid out. "The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition." Bd. of Trade of Chicago v. United States, 246 U.S. 231, 38 S. Ct. 242, 62 L. Ed. 683 (1918). This point of contention is yet another reason to allow the complaint to proceed. Defendants offer a number of other arguments against aggregation. None of the arguments, however, can sidestep our precedent. Defendants argue that Plaintiffs waived the aggregation argument by not challenging the district court's Order Granting Leave to Amend in their first appeal to the Ninth Circuit. That order reads, "The court GRANTS leave to amend plaintiff's complaint only to the extent that it alleges that each of the bilateral agreements, entered into independently between various 1012 defendant gasoline companies, have unreasonable anti-competitive effects and therefore violate the Sherman Act." The purpose behind the district court's decision to grant leave to amend was so Plaintiffs could plead a claim different than the per se violation pled in Aguilar. Plaintiffs complied by pleading a rule of reason claim based on the aggregate effects of the exchange agreements. Defendants also argue also that Dickson v. Microsoft Corp., 309 F.3d 193 (4th Cir. 2002), forecloses aggregation of the bilateral exchange agreements to establish a violation of § 1. In that case the plaintiff "alleged discrete conspiracies between Microsoft and two original equipment manufactures (OEMs): Dell and Compaq. Id. at 210." The Fourth Circuit affirmed the district court's determination "that it could not consider the cumulative harm of Microsoft's agreements with all OEMs but instead was required to consider individually Microsoft's agreements with Compaq and Dell" because the complaint "did not allege a conspiracy among Microsoft and all OEMs; it alleged discrete conspiracies between Microsoft and Compaq and Microsoft and Dell." Id. (emphases added). In other words, because the plaintiff did not allege the cumulative effect of Microsoft's agreements with "all OEMs" in the complaint, the Fourth Circuit declined considering their aggregate effects. Dickson is distinguishable from the present case, as the plaintiffs here do expressly allege that each Defendant's agreements considered in the aggregate have anticompetitive effects. Defendants also contend that aggregation would subject firms to unwarranted liability and great uncertainty regarding the validity of independent business dealings that do not carry inherent anticompetitive potential. Section 1 liability, however, is directed not only at inherent anticompetitive conduct, but also at conduct that has anticompetitive effects. Khan, 522 U.S. at 10, 118 S. Ct. 275. Furthermore, aggregation of the agreements does not lessen a plaintiff's burden of demonstrating anticompetitive effects of a given agreement. Because the district court's application of the law was incorrect, and because we reject Defendants' arguments against aggregation, we conclude that the district court erred in not allowing Plaintiffs to aggregate the agreements to demonstrate their anticompetitive effects. c. The Allegations in the SAC Are Not Necessarily Premised on a Conspiracy to Limit Supply and Raise Prices. The district court concluded that, even if aggregation were proper, the complaint alleges the existence of a network of exchange agreements that allow Defendants to limit supply and raise the price of CARB gas. The district court based that conclusion on language of the complaint stating that each Defendant obtained market power "through the use of [the Defendant's] exchange agreements, coupled with its own refining capacity and that of its contracting partners." However, that language says nothing more than the exchange agreements provide access to refining capacity of Defendant's competitors through the exchange agreements themselves. Furthermore, that language, read in the light most favorable to Plaintiffs, Knievel, 393 F.3d at 1072, certainly does not plead a "network", a "precise dance of give-and-take", or any other nomenclature for the operation of a conspiracy to limit supply or raise prices. The district court concluded also that "Plaintiffs cannot avoid the fact that their Sherman Act claim is, at its core, a conspiracy claim." To come to that conclusion, the district court did not rely on the allegations made in the SAC. Instead, the 1013 court, in effect, probed the soundness of Gilley's economic theory, concluding that the alleged anticompetitive effects could not result without the intentional collusion precluded, as a factual allegation, by Aguilar. The district court illustrated its analysis with a hypothetical: Defendant A enters into separate exchange agreements with B, C, D, E, and F. If B overproduces CARB gasoline at some point in time, A may be able to take the excess amount and adjust its production accordingly. However, in the absence of a conspiracy, C, D, E, and F may also produce excess CARB gasoline which cannot be absorbed by A because A has already taken the overproduction from B. The district court may be correct in its understanding of how the economy or the oil business works, but that is a factual assessment, not left to the court, even a savvy judge, to decide on a Rule 12 motion. The hypothetical is not what has been pled in the SAC. The SAC alleges that anticompetitive effects have resulted from the exchange agreement, even in the absence of collusion, and under Rule 12(b)(6), allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Knievel, 393 F.3d at 1072. A review of the SAC shows that it alleged that the existence of the exchange agreements allows a given Defendant in a given geographic market control of enough refining capacity of CARB gas to keep CARB gas out of the spot market and away from unbranded marketers, with the overall effect of creating supracompetitive prices. Plaintiffs did not allege that Defendants entered into a conspiracy to limit supply or raise prices, and did not assert a conspiracy to enter into the exchange agreements. That the district court believes that the allegedly anticompetitive effects would not actually occur without a conspiracy does not justify dismissal of the SAC for failure to state a claim. Furthermore, the absence of a conspiracy to limit supply and raise prices does not eliminate a causal connection between the exchange agreements and anticompetitive effect. As discussed above, Plaintiffs must first identify an agreement that unreasonably restrains trade. Here, the SAC properly identifies a number of agreements satisfying the contract, combination, or conspiracy requirement of § 1. Next, Plaintiffs must plead facts that if taken as true would allow Plaintiffs to recover for an antitrust injury. Here, Plaintiffs' SAC, construed in the light most favorable to them, alleges that each Defendant's control of its refining capacity, coupled with that of its contracting partners, establishes requisite market power in the relevant geographic market sufficient to establish anticompetitive effects. We conclude that the SAC is a sufficient pleading to move beyond Rule 12(b)(6). 4. Plaintiffs Have Standing Against Tesoro. Although a plaintiff must directly purchase from a defendant to have standing to recover damages, Ill. Brick Co. v. Illinois, 431 U.S. 720, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977), an indirect purchaser may nevertheless have standing to seek injunctive relief. Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1235 (9th Cir.1998). Taking Plaintiffs' allegations as true, and construing them in the light most favorable to Plaintiffs, at least an indirect purchaser scenario exists in the SAC. In addition to Plaintiffs' allegations that they are "direct purchaser[s] from [D]efendants," the allegation that Tesoro acquired the Avon refinery from UDS, and that "Tesoro entered into the same sales and/or exchange agreements that UDS had formerly 1014 entered into with other refiners ... in connection with the ownership and operation of the Avon refinery" provides sufficient pleading to conclude that Plaintiffs have standing to include Tesoro in the SAC. 5. We Remand the State Law Claim. The district court dismissed Plaintiffs' claim under CAL. BUS. & PROF. CODE § 17200 as follows: Plaintiffs' state unfair competition claim rests on the same facts as their Sherman Act claim. Because the Sherman Act claim is being dismissed at an early stage of litigation, the Court finds that the factors underlying the assertion of supplemental jurisdiction . . . weigh against retention of jurisdiction over the remaining state law claim. Because we reverse the dismissal of the Sherman Act claims, we also reverse the district court's dismissal of the state law claim. III CONCLUSION We agree with the California Supreme Court that the Aguilar trial court only adjudicated a per se claim of horizontal price fixing. Therefore, Plaintiffs' rule of reason claim alleging that the bilateral exchange agreements have anticompetitive effects is not precluded. In addition, Ninth Circuit and Supreme Court precedent allow for aggregation of the individual exchange agreements to demonstrate market power and anticompetitive effect in a given market. Though the district court may think the prospects of Gilley actually proving the allegations contained in the SAC to be highly improbable and may be correct in that assessmentthat is not a valid basis for Rule 12 dismissal. REVERSED and REMANDED. CALLAHAN, Circuit Judge, dissenting: I write separately because I think that the majority reads the California Supreme Court's opinion in Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 107 Cal. Rptr. 2d 841, 24 P.3d 493 (2001), too narrowly and fails to appreciate the pleading standard set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). When Gilley's Second Amended Complaint (sometimes referred to as "SAC") is viewed in light of these cases, it is too broad and amorphous and fails to limit his claims to those that are not precluded by Aguilar. Furthermore, because Gilley has been on notice since 2002 that his complaint must be limited to those claims not precluded by Aguilar, has had several opportunities to submit a properly circumscribed amended complaint, and has failed to do so, I would affirm the district court's dismissal of the Second Amended Complaint. I Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." 15 U.S.C. § 1. The Supreme Court has clearly established that the section is limited to prohibiting unreasonable restraints of trade. See Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S. Ct. 1276, 164 L. Ed. 2d 1 (2006). Whether a plaintiff pursues a per se claim or a rule of reason claim under § 1, the first requirement is to allege a "contract, combination in the form of trust or otherwise, or conspiracy." I agree with the majority that the core of the plaintiff's claims in Aguilar was a per se claim based on an alleged unlawful conspiracy among petroleum companies. I also agree that the California Supreme Court in Aguilar recognized that plaintiffs 1015 "attempted to introduce an alternative theory, which was also legally sound [ ], that the assertedly unlawful conspiracy consisted of the various exchange agreements entered into by the various petroleum companies, and was unlawful because of its effects." Aguilar, 107 Cal. Rptr. 2d 841, 24 P.3d at 521, n. 35. The California Supreme Court agreed with the Court of Appeal that this attempt came too late and rejected it for that reason. Id. The California Supreme Court's opinion in Aguilar, however, is broader than the footnote referenced by the majority. The Aguilar opinion goes on to state: Just as the superior court's order granting the petroleum companies summary judgment was not erroneous as to Aguilar's primary cause of action for an unlawful conspiracy under section 1 of the Cartwright Act to restrict the output of CARB gasoline and to raise its price, neither was it erroneous as to her derivative cause of action, which was for an unlawful conspiracy under the unfair competition law for the same purpose. . . . The petroleum companies carried their burden of persuasion to show that there was no triable issue of material fact and that they were entitled to judgment as a matter of law as to Aguilar's unfair competition law cause of action. They did so by doing so as to her Cartwright Act cause of action. Again, they carried their burden of production to make a prima facie showing of the absence of any conspiracy, but she did not carry her shifted burden of production to make a prima facie showing of the presence of an unlawful one. It is true, as Aguilar argues, that her unfair competition law cause of action is not based on allegations asserting a conspiracy unlawful under the Cartwright Act. But it is indeed based on allegations asserting a conspiracy, specifically, one unlawful at least under the unfair competition law itself. As stated, the petroleum companies showed that there was no triable issue of the material fact of conspiracy. Aguilar claims that conspiracy is not an element of an unfair competition law cause of action in the abstract as a matter of law. Correctly so. (See Bus. & Prof.Code, § 17200). But she simply cannot deny that conspiracy is indeed a component of the unfair competition law cause of action in this case as a matter of fact. Id. at 521 (emphasis in original). This portion of Aguilar holds that the plaintiffs had failed to demonstrate the existence of a conspiracy that was per se illegal or otherwise illegal under the Sherman Act. With this understanding, if Gilley were not asserting that the defendants entered into a conspiracy in violation of the Sherman Act, I could agree with the majority that "a claim that Defendants have entered into exchange agreements, without a conspiracy to control supply or to set prices," would state a claim that is not precluded by Aguilar. However, even assuming that in the abstract the Second Amended Complaint can be interpreted as alleging such a limited claim, it clearly alleges much more than that and it is far too late in the litigation process to presume that this is anything but intentional. II The preclusive effect of Aguilar is woven through the numerous court decisions in Gilley's federal action. Gilley filed this class action in 1998, and its proceedings were stayed pending the outcome of Aguilar. After the California Supreme Court issued its opinion in Aguilar, the defendants filed a motion for summary judgment. Gilley opposed the motion and also offered to file an amended complaint. The district court granted the motion for summary 1016 judgment. The district court held that pursuant to the doctrine of issue preclusion, Gilley was barred from relitigating the conspiracy alleged in Aguilar. The court denied Gilley's request to amend the complaint to allege continuing violations of antitrust laws subsequent to the time period involved in Aguilar, reasoning: The exchange agreements were already judged by the California Supreme Court not to be evidence of a conspiracy. The court finds that the proposed amended complaint merely alleges the ongoing use of these supply agreements and not any new conduct. Issue preclusion therefore bars Gilley from relitigating whether use of the ongoing agreements constitute an illegal conspiracy under the Sherman Act. The district court, however, agreed with Gilley that "his rule-of-reason claim has not been litigated to the extent that he is alleging that the individual bilateral exchange agreements violate the anti-trust laws due to their anti-competitive effect." Accordingly, it granted Gilley leave to file an amended complaint "only to the extent that it alleges that each of the bilateral agreements, entered into independently between various defendant gasoline companies, have unreasonable anti-competitive effects and therefore violate the Sherman Act." Gilley amended his complaint. Defendants responded by filing a motion to dismiss the First Amended Complaint ("FAC"). The district court granted the motion, explaining: After careful scrutiny of the FAC, the court has been unable to discern any allegation that any of the parties in any of the bilateral agreements entered these agreements with an unlawful intent or purpose to restrain competition. In the few instances that Plaintiff does allege an improper purpose, he does so by alleging joint action among all, or substantially all of the defendants. As discussed below, Plaintiff's pleading of such joint purpose or action regarding the various defendants is improper and will not be considered by the court. Therefore, Plaintiff has failed to properly allege "concerted action" regarding any individual bilateral exchange agreement. The district court dismissed the case with prejudice, commenting that because "Plaintiff was already granted leave to amend his complaint previously, and at this late date was unable to set forth a valid anti-trust claim, it appears that Plaintiff cannot allege sufficient facts constituting a valid § 1 claim." Gilley appealed, and we reversed and remanded to allow Gilley an opportunity to file a further amended complaint. We held that the district court had abused its discretion by denying Gilley an opportunity to amend his complaint. When Gilley filed a Second Amended Complaint, defendants again moved to dismiss, and the district court granted the motion. It explained: Plaintiffs do not allege that each exchange agreement has a discrete effect on competition which can be viewed together with the separate effects of the other exchange agreements. Instead, Plaintiffs allege the existence of a network of exchange agreements that allow Defendants to coordinate their production and output, thereby limiting the amount of CARB gasoline on the rack or spot market and allowing Defendants to raise prices to branded dealers. Even if a single defendant and all of the defendants who contracted with that defendant cumulatively had sufficient market power to substantially impair competition, Plaintiffs would need to make the further showing that all of these defendants worked together through the use 1017 of the exchange agreements and strategic shutdowns or decreased production to stabilize the spot market and avoid the depression of gasoline prices. . . . Plaintiffs cannot avoid the fact that their Sherman Act claim is, at its core, a conspiracy claim. Plaintiffs' theory of recovery rests upon the existence of a web of exchange agreements that allegedly allows all of the Defendants to engage in a precise dance of give-and-take with the goal of maintaining the delicate balance of CARB production. Coordinated action is essential to Plaintiffs' claim. After four attempts to plead around a conspiracy claim, Plaintiffs still fail to allege that the bilateral exchange agreements, viewed independently, constitute an unreasonable restraint on trade. Plaintiffs' inability to establish a causal connection between the individual exchange agreements, and anti-competitive harm is fatal to Plaintiffs' Sherman Act claim. A critical aspect of the district court's perspective is its determination that the SAC does not allege "that each exchange agreement has a discrete effect on competition which can be viewed together with the separate effects of other exchange agreements." Rather, the district court sees the SAC as alleging "a network of exchange agreements" that "allow Defendants to coordinate their production and output." In essence, the district court reads the SAC as not alleging that the bilateral agreements "violate the anti-trust laws due to their anti competitive effect," but rather that the agreements facilitate coordinated action by the defendants that unlawfully restrains trade. This distinction is critical. If the bilateral agreements in themselves have an illegal effect on competition (when aggregated), then the bilateral agreements constitute the "contract, combination or conspiracy" required for a claim under § 1 of the Sherman Act. If, however, the bilateral agreements only facilitate coordinated activity, then to maintain a claim under § 1 of the Sherman Act, Gilley must show some meeting of the minds, some "contract, combination or conspiracy," between those defendants whom Gilley alleges coordinated their actions. Although a plaintiff might well be able to do so in the abstract, here, Gilley is precluded by Aguilar from asserting that the defendants so conspired. III The Second Amended Complaint implicitly, if not explicitly, asserts a conspiracy. The charging paragraphs of the SAC describe the defendants' parallel actions and imply the existence of a conspiracy. The SAC asserts: California's CARB gas supply is generally manufactured primarily by defendants, California branded refiners, who are engaged in the business of refining, distributing and selling almost 100% of the CARB gas in the state of California during the class period. California remains largely isolated from external sources of supply. All California refiners, now also major retail marketers, control supply and pricing from production to distribution, in part, through supply agreements that require dealers to purchase gasoline exclusively at each branded refiner's present DTW price, a price that is always greater than the rack price and cost of distribution. California refiners' weekly refinery production decisions are influenced by, among other things, spot price impact, refiner margins, bilateral exchange partners' market needs, ability to draw inventory from bilateral exchange partners, and overall market supply. With the impending introduction of CARB gasoline in 1996, each of the 1018 defendants or their predecessors in interest, entered into new sales and/or exchange agreements with other defendants, many of which provided for the provision of CARB gas "as mutually agreed" (AMA) with no minimum or maximum. The determination that these paragraphs assert a conspiracy is reinforced by the next paragraph of the SAC which reads: The sales and exchange agreements known to plaintiffs that are subject of this action are listed on the attached Exhibit.... On information and belief, plaintiffs allege that defendants have entered into other sales and exchange agreements, presently unknown to plaintiffs, with similar intent and effect. Certainly the tenor of this paragraph is that the "similar intent and effect" violates antitrust laws. Moreover, in light of the preceding paragraphs and the failure to assert any other specific violation of the Sherman Act, the alleged violation must be one of conspiracy or collusion. This allegation of conspiracy is carried forward in the SAC's allegations against particular defendants, starting with Chevron.[1] It lists three exchange agreements that Chevron entered into with Exxon, Shell, and Tosco Refining Co., and alleges, on information and belief, that Chevron has entered similar agreements "for the delivery of CARB in Northern California." The SAC then alleges: Chevron's intent and purpose in entering into these exchange agreements was to limit refining capacity for CARB gas and/or to keep CARB gas out of the spot market and away from unbranded marketers. Through the use of these exchange agreements, coupled with its own refining capacity and that of its contracting partners, Chevron has obtained sufficient market power to limit the supply of CARB gas to unbranded marketers and to raise the price at which it sells CARB gas in Northern California to supracompetitive levels. These agreements have had the effect of raising CARB gas prices in Northern California above competitive levels, without any countervailing procompetitive benefit. (Emphasis added). These paragraphs reveal, as the majority notes, how Gilley proposes to meet the market power requirement for a claim under § 1 of the Sherman Act, but they leave the reader uninformed as to how the individual exchange agreements allegedly violated the Sherman Act "without a conspiracy to control supply or to set prices." In his brief, Gilley responds by pointing to the paragraphs concerning the relationship between Chevron and Tosco. These paragraphs set forth various reasons for why the defendants purportedly entered into particular agreements,[2] suggest an industry-wide 1019 conspiracy,[3] and assert that the individual agreements facilitated a combination or conspiracy.[4] Again, the paragraphs seem to allege a conspiracy. They certainly do not clearly allege that the exchange agreements themselves constitute a restraint of trade or suggest why the defendants' actions were "collusive, rather than independent, action." See Aguilar, 107 Cal. Rptr. 2d 841, 24 P.3d at 519. In sum, the SAC, fairly read, is not limited to alleging that the bilateral exchange agreements are themselves restraints of trade. Instead, its broad allegations encompass conspiracy claims that are precluded by Aguilar. Indeed, the majority so concludes when it states "[t]he SAC may include allegations which are precluded by Aguilar, but not of all of what the SAC alleges is precluded." IV It is this breadth of the SAC that concerns me as it is inconsistent with the spirit of Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Although Twombly involved an alleged conspiracy based on parallel conduct and this case is ostensibly not a conspiracy case, nonetheless the Supreme Court's concerns reverberate in this case. The Supreme Court reiterated that Federal Rule of Civil Procedure 8(a)(2) requires "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).[5] It commented that a plaintiff's obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" and that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965 (internal citations omitted). The Supreme Court reaffirmed its earlier decisions holding that "something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people with the right to do so representing an in terrorem increment of the settlement value," and that "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, 1020 this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 1966 (internal quotation marks and citations omitted). The Court concluded that allegations of parallel conduct in themselves do not provide a sufficient basis to sustain a conspiracy claim.[6] Similarly, in this case the district court read the complaint as not stating a viable cause of action. It determined that the SAC did not allege that "each exchange agreement has a discrete effect on competition which can be viewed together with the separate effects of other exchange agreements," but rather as alleging "the existence of a network of exchange agreements that allow Defendants to coordinate their production and output." I agree with the district court. I read the SAC as not asserting that the bilateral agreements, in themselves, restrain trade, but that they facilitate or make it easier for the defendants to coordinate their actions to restrain trade.[7] The majority seems to admit that the SAC includes allegations of conspiracy, but contends that the SAC must be allowed because it can also be read to allege only that each exchange agreement has a discrete effect on competition. This is the type of "in terrorem increment of the settlement value" that the Supreme Court mentioned in Twombly. Id. at 1966. Moreover, when viewed in the light of the preclusive effect of Aguilar, the SAC "does not raise a claim of entitlement to relief." Id. Furthermore, there can be little doubt that the broad scope of the SAC was intentional. Gilley has known since 2002 that following Aguilar, he was precluded from alleging a conspiracy. Nonetheless, he has thrice been given the opportunity to amend his complaint to limit it to a claim based solely on the alleged anti-competitive effect of the individual exchange agreements absent a conspiracy, and has thrice proffered amended complaints that continue to assert, albeit ever more subtly, the existence of a conspiracy. I do not necessarily quarrel with the majority that it might be possible for Gilley to allege an antitrust claim limited to issues that are not precluded by Aguilar, but he has declined to do so. Accordingly, the district court properly struck the SAC. Furthermore, 1021 the district court's denial of leave to amend does not appear to me to have been an abuse of discretion.[8] V Although much of what the majority has to say about aggregation may be correct, I do not think that aggregation cures the defects in the SAC. Initially, I note that in an oligopoly, aggregation cannot be as broad as alleged in the SAC. More importantly, aggregation, which addresses the second prong of a § 1 claim, cannot overcome the SAC's failure to adequately identify the agreements that allegedly violate the Sherman Act. In Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1302 (9th Cir.1982), we addressed the question of aggregation on a claim for an unreasonable restraint of trade under § 1 of the Sherman Act. We held: the issue is whether a district court, in assessing the antitrust liability of a defendant, may look to the overall effects of a defendant's conduct in the relevant market, or is limited to looking at the market implications of the one contract between the antitrust plaintiff and defendant. At least in the factual context of the instant litigation, we think the district court correctly assessed Sportservice's aggregate pattern of conduct in the relevant market. I agree with the majority that pursuant to Twin City, Gilley may aggregate the contracts entered into by each defendant in determining that defendant's marketpower. The allegations in the SAC, however, are not so limited. Rather, they appear to allow the aggregation of all the bilateral agreements by all of the defendants. I know of no authority or reason that would allow such an aggregation, as it would include the entire market. Accordingly, I think that Gilley is limited to aggregating, for example, Chevron's contracts with Exxon, Shell and Tosco, in asserting that Chevron has sufficient market power to effect the price of CARB gasoline, and may not include in the calculation of Chevron's alleged market share any bilateral agreements entered into by Exxon, Shell or Tosco with any party other than Chevron. Whatever the proper scope of aggregation, and accepting that the aggregation of each defendant's bilateral agreements gave each defendant sufficient market power to affect the price of gasoline, the SAC still fails to meet the first requirement for a § 1 claim an allegation of a meeting of the defendants' minds. See Twombly, 127 S.Ct. at 1965. Twin City does not help Gilley on this issue. There, Sportservice had a practice of entering into exclusive concessionaire contracts, which were in themselves agreements to restrain trade. The only question was whether Sportservice had sufficient market power. Here, because the SAC does not clearly allege that the individual exchange agreements 1022 inherently restrain trade, the aggregation of Chevron's individual agreements might show market power, but it would not meet the requirement that Gilley assert an agreement to restrain trade. The majority's over-reliance on aggregation may be seen in its conclusion that the SAC alleges "that the existence of the exchange agreements allows a given Defendant in a given geographic market control of enough refining capacity of CARB gas to keep CARB gas out of the spot market and away from unbranded marketers, with the overall effect of creating supracompetitive prices." This conclusion allows effect to take the place of intent in precisely the way that the Supreme Court criticized in Twombly, 127 S.Ct. at 1971. "Spot market" is defined in the SAC as "a market for short-term bulk gasoline purchases," and "unbranded marketers" refer to "jobbers and dealers who sell unbranded product not associated with the name brand of a branded refiner such as the defendants herein." These definitions indicate that "spot markets" exist only when a refiner produces more gasoline than can be sold by its "branded dealers." It follows that because "spot markets" produce a lower return to the refiner of gasoline than the refiner obtains through branded dealers, spot markets are a result of inefficiencies on the part of refiners. Accordingly, even without any collusion, a refiner is strongly motivated to avoid having to sell gasoline in the spot markets. Thus, a narrow focus on effect as a result of aggregation would convert self-interest parallel action, similar to that found to be legal in Twombly, into an antitrust violation, even when the plaintiff is precluded from showing any agreement between the competing businesses. VI. Conclusion We recently reiterated in Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir.2008), that "[t]o state a claim under Section 1 of the Sherman Act, 15 U.S.C. § 1, claimants must plead not just ultimate facts (such as a conspiracy), but evidentiary facts which, if true, will prove: (1) a contract, combination or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intended to harm or restrain trade or commerce . . . (3) which actually injures competition." Gilley, in order to state a § 1 claim, must plead "a contract . . . by which the persons or entities intended to harm or restrain trade." Despite its length and detail, the SAC does not clearly assert which individual agreement or agreements constitute in themselves a "contract . . . by which the persons or entities intended to harm or restrain trade." Rather, the SAC is fairly read as alleging the existence of a network of exchange agreements that arguably allowed the defendants to unlawfully coordinate their production and output. But given the preclusive effect of Aguilar, Gilley cannot show such coordination. The SAC is not saved by the argument that it could be read to encompass a claim that the individual agreements in themselves constitute a restraint of trade because the SAC does not provide the defendants fair notice of such a claim and the grounds upon which it rests. See Twombly, 127 S.Ct. at 1964. Moreover, aggregation does not save the SAC because it does not show that the defendants' adjustments of CARB production were part of any agreement or conspiracy, rather than independent efforts to maximize profits. See Twombly, 127 S.Ct. at 1971. Finally, I note that, as written, the SAC might allow Gilley to seek discovery on, and to assert, allegations of conspiracy that Gilley concedes he is precluded by Aguilar from asserting as a cause of action. For these reasons, I would affirm the district court's dismissal of the Second *1023 Amended Complaint without leave to amend. NOTES [1] The determination of whether an agreement unreasonably restrains trade can be based upon per se condemnation or under a rule of reason analysis. See Texaco Inc. v. Dagher, 547 U.S. 1, 5-7, 126 S. Ct. 1276, 164 L. Ed. 2d 1 (2006) (noting that a per se claim and a rule of reason claim are distinct). Courts will condemn as per se illegal only those agreements that are "so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality." Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 692, 98 S. Ct. 1355, 55 L. Ed. 2d 637 (1978). For example, "[p]rice-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements," are condemned as per se illegal. Dagher, 547 U.S. at 5, 126 S. Ct. 1276. [2] For a rule of reason claim, "the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint's history, nature, and effect." State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997). [3] Neither party disputes that the exchange agreements affect interstate commerce. [4] We note that the decision in Aguilar concerned a summary judgment, not a dismissal for failure to state a claim. [1] The allegations against the other defendants are similar to the allegations against Chevron. [2] For example, the SAC sets forth a 1994 individual exchange agreement between Chevron and Tosco and alleges: Chevron's intent and purpose in entering into this agreement with Tosco was to place its surplus CARB gas with other branded refiners to maximize returns. Chevron intended to and did rearrange its CARB gas supply to avoid a market imbalance caused by CARB gas flowing to independent marketers. If Chevron and Tosco agreed to restrain the production of gas, the individual exchange agreement might well be a contract to restrain trade pursuant to § 1 of the Sherman Act. The paragraph, however, does not say that the parties agreed. Instead, it only addresses Chevron's intent and purpose. This purpose and intent would presumably motivate Chevron to act independently or interdependently without any agreement as to purpose or intent with Tosco. [3] For example, the SAC alleges that "[t]hrough the use of these exchange agreements, coupled with its own refining capacity and that of its contracting partners, Chevron has obtained sufficient market power to limit the supply of CARB gas to unbranded marketers and to raise the price at which it sells CARB gas." This implies a conspiracy and does not allege that there was a meeting of the minds of the parties to any of the individual exchange agreements to raise the price of gasoline. [4] For example, the SAC alleges that "Tosco's intent and purpose in entering into this agreement with Chevron was [to] join the `club' of major branded refiners and to give Chevron the opportunity to place its surplus CARB gas with other branded refiners to maximize returns." This is confusing, as it indicates that Tosco's intent was to give Chevron "the opportunity" to maximize its return. This seems to suggest that the individual exchange agreement facilitated, but did not in itself provide for, the maximization of Chevron's return. [5] The Court went on to disapprove the language in Conley that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968 (quoting Conley, 355 U.S. at 45-46, 78 S. Ct. 99). The Court held that: [t]he phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Twombly, 127 S.Ct. at 1969. [6] The Court noted: We think that nothing contained in the complaint invests either the action or inaction alleged with a plausible suggestion of conspiracy. As to the ILECs' supposed agreement to disobey the 1996 Act and thwart the CLECs' attempts to compete, we agree with the District Court that nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each ILEC intent on keeping its regional dominance. The 1996 Act did more than just subject the ILECs to competition; it obliged them to subsidize their competitors with their own equipment at wholesale rates. The economic incentive to resist was powerful, but resisting competition is routine market conduct, and even if the ILECs flouted the 1996 Act in all the ways the plaintiffs allege, . . . there is no reason to infer that the companies had agreed among themselves to do what was only natural anyway; so natural, in fact, that if alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading a § 1 violation against almost any group of competing businesses would be a sure thing. 127 S.Ct. at 1971. [7] The district court explained: Even if a single defendant and all of the defendants who contracted with that defendant cumulatively had sufficient market power to substantially impair competition, Plaintiffs would need to make the further showing that all of these defendants worked together through the use of the exchange agreements and strategic shutdowns or decreased production to stabilize the spot market and avoid the depression of gasoline prices. . . . [8] In Griggs v. Pace Amn. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999), we held that the "district court determines the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility." Generally, "this determination should be performed with all inferences in favor of granting the motion." Id. Nonetheless, "we have noted that a district court does not abuse its discretion in denying a motion to amend a complaint . . . when the movant presented no new facts but only new theories and provided no satisfactory explanation for his failure to fully develop his contentions originally." Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004) (quoting Vincent v. Trend W. Technical Corp., 828 F.2d 563, 570-71 (9th Cir. 1987)) (internal quotation marks omitted). Here, assuming that Gilley could, in the abstract, amend his complaint to state a claim that is not precluded by Aguilar, his repeated failure to do just that suggests that it would be futile to offer him another chance to do so.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3072390/	COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS B .C., § No. 08-14-00150-CV Appellant, § Appeal from the v. § 65th District Court TEXAS DEPARTMENT OF FAMILY § AND PROTECTIVE SERVICES, of El Paso County, Texas § Appellee. (TC# 2012DCM07071) § JUDGMENT The Court has considered this cause on the record and concludes there was no error in the judgment. We therefore affirm the judgment of the court below. It appearing to this Court that Appellant is indigent for purposes of appeal, this Court makes no other order with respect thereto. This decision shall be certified below for observance. IT IS SO ORDERED THIS 8TH DAY OF OCTOBER, 2014. ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Rodriguez, JJ. Rivera, J., not participating	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2266577/	165 Cal.App.4th 571 (2008) CALIFORNIANS FOR DISABILITY RIGHTS, Plaintiff and Appellant, v. MERVYN'S LLC, Defendant and Respondent. No. A106199. Court of Appeals of California, First District, Division Four. July 29, 2008. 576 Rosen, Bien & Asaro, Andrea G. Asaro, Holly M. Baldwin; Zelle, Hofmann, Voelbel, Mason & Gette, Daniel S. Mason; Disability Rights Advocates, Sidney Wolinsky, Monica Goracke; The Sturdevant Law Firm, James C. Sturdevant, Monique Olivier; Rosen Bien & Galvan and Sanford J. Rosen for Plaintiff and Appellant. Robinson, Calcagnie & Robinson and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant. Chavez & Gertler and Nance F. Becker for California Foundation for Independent Living Centers and American Association of People with Disabilities as Amici Curiae on behalf of Plaintiff and Appellant. Edmund G. Brown, Jr., Attorney General, Janet Gaard, Acting Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Angela Sierra and Timothy M. Muscat, Deputy Attorneys General, for Attorney General of California as Amici Curiae on behalf of Plaintiff and Appellant. 577 Morrison & Foerster, David F. McDowell, Samantha P. Goodman, Linda E. Shostak and Gloria Y. Lee for Defendent and Respondent. Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and David N. Makous for ReadyLink HealthCare, Inc., as Amicus Curiae on behalf of Defendant and Respondent. OPINION SEPULVEDA, J. An organization representing disabled individuals sued an operator of retail department stores for maintaining narrow pathways between merchandise display racks that block shoppers with wheelchairs and other mobility aids from reaching the merchandise. In a bench trial, the court found that the retailer denied access to disabled individuals but concluded that widening the merchandise pathways to allow access was not legally mandated because wider pathways would cause a significant loss of selling space and profit. The court also found that the retailer provided an adequate alternative method for making its merchandise available to disabled individuals by designing new and remodeled stores to be physically accessible. The court entered judgment for the retailer. We reverse the judgment. A retailer must remove architectural barriers to access where such removal is "readily achievable" and, if not readily achievable because of great difficulty or expense, must adopt alternative methods for making its merchandise available to disabled individuals by the provision of customer assistance or other means. (42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv), (v).) We find sufficient evidence to support the trial court's finding that the removal of barriers to access is not readily achievable in this instance, and thus not legally mandated. However, we conclude that a retailer does not meet its obligation to make its merchandise available to disabled individuals denied access to the retailer's existing stores by constructing new and geographically distant stores that are accessible. Accordingly, we remand the case for consideration of appropriate alternative means for making merchandise available to disabled individuals who are denied physical access. I. PROCEDURAL BACKGROUND Appellant Californians for Disability Rights (CDR) is a nonprofit corporation organized to protect the interests of persons with disabilities. On May 21, 2002, CDR filed a lawsuit against respondent Mervyn's LLC (Mervyn's), a corporation that operates 125 retail department stores throughout the State of 578 California.[1] CDR alleged that Mervyn's denied store access to persons with mobility disabilities by failing to provide adequate pathway space between merchandise displays for wheelchairs and other mobility aids. CDR pleaded a single cause of action for injunctive relief under California's unfair competition law, which defines unfair competition to include any unlawful business act or practice. (Bus. & Prof. Code, § 17200 et seq. (the UCL).) CDR alleged that Mervyn's practice of denying access to disabled individuals was unlawful because it violated California's Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and California's Disabled Persons Act (Civ. Code, § 54 et seq.). The case proceeded to an 18-day bench trial that began in August 2003. The trial court denied relief to CDR and entered judgment in favor of Mervyn's on February 2, 2004. The trial court found that 15 to 20 percent of Mervyn's merchandise was inaccessible to persons using mobility aids, but concluded that the removal of access barriers was not readily achievable, and thus not legally mandated, because full access would necessitate a significant loss of selling space and profit. The court also concluded that Mervyn's provided an alternative method for making its merchandise available to disabled individuals by designing its new and remodeled stores to be physically accessible. CDR appealed the judgment. While this case was pending on appeal, the voters of California amended the statute under which the case had been prosecuted. The voters' enactment, popularly known as Proposition 64, was passed in the California General Election on November 2, 2004, and went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) At the time this case was tried, the UCL authorized any person acting for the general public to sue for relief from unfair competition. (Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 228 [46 Cal.Rptr.3d 57, 138 P.3d 207] (Mervyn's).) "Standing to bring such an action did not depend on a showing of injury or damage." (Ibid.) Proposition 64 amended the UCL to limit private enforcement to those who have suffered injury in fact and have lost money or property as a result of such unfair competition. (39 Cal.4th at p. 228.) Proposition 64 did not state whether this new limitation applied to pending cases. (39 Cal.4th at p. 229.) On December 6, 2004, Mervyn's moved to dismiss this appeal upon the claim that Proposition 64's change in standing requirements applied to pending cases. We denied the motion because new legislative enactments are presumed to operate prospectively, rather than retroactively, to avoid unfair impairment of existing rights and obligations. In July 2006, the California Supreme Court reversed our ruling upon concluding that application of Proposition 64's standing requirements to pending cases would not constitute 579 a retroactive application of the law because the initiative measure did not change any existing rights or obligations. (Mervyn's, supra, 39 Cal.4th at pp. 232-234.) While the measure "withdraws the standing of persons who have not been harmed to represent those who have," it did not impair any rights because lack of standing is a jurisdictional challenge that can be raised at any time in a legal proceeding. (Id. at pp. 232-233.) The high court reversed our denial of Mervyn's motion to dismiss the appeal and remanded the case to us "for further proceedings consistent" with its opinion. (Id. at p. 234.) On remand to this court, CDR asked leave to move for substitution of plaintiff on appealit did not contend that it had standing to appeal in its own right as a party aggrieved by the judgment under Code of Civil Procedure section 902. We denied CDR's request and granted Mervyn's motion to dismiss the appeal for lack of standing by CDR. CDR petitioned for review in the Supreme Court. The Supreme Court granted review and transferred the case to us with directions to vacate our decision and to reconsider the cause in light of United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300 [23 Cal.Rptr.3d 387] (United Investors) and Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 [46 Cal.Rptr.3d 66, 138 P.3d 214] (Branick). United Investors held that a plaintiff has standing to appeal dismissal of a UCL complaint following demurrer even if it has no authority to maintain its suit in superior court, because plaintiff "is sufficiently aggrieved by the dismissal of its complaint that it has standing to appeal under Code of Civil Procedure section 902." (United Investors, supra, 125 Cal.App.4th at p. 1305.) Branick held that Proposition 64 does not forbid amendment of complaints in the trial court to substitute new plaintiffs for those who have lost standing under the new measure. (Branick, supra, 39 Cal.4th at pp. 241-242.) The "ordinary rules governing the amendment of complaints" apply. (Id. at p. 239.) Upon reconsideration, we denied Mervyn's motion to dismiss the appeal in a ruling we issued on April 17, 2007. We concluded that the two cases referenced by the high court, "when read in conjunction, lead to the following conclusion: CDR is a party aggrieved by entry of judgment against it and thus has standing to appeal the judgment even if CDR has no authority to maintain its suit in superior court (United Investors, supra, 125 Cal.App.4th at pp. 1304-1305); and, if CDR succeeds in its effort to reverse the judgment on appeal, it may seek leave in the superior court to amend its complaint to substitute a plaintiff who meets the Proposition 64 standing requirement. (Branick, supra, 39 Cal.4th at pp. 240-244.)" Mervyn's petitioned for review in the Supreme Court, and the petition was denied on July 18, 2007. 580 The parties completed briefing on the merits of the appeal in January 2008, and the matter was argued and submitted for decision. We now turn to the trial court's factual findings following the bench trial, and then proceed to discuss CDR's claims raised on appeal. II. THE TRIAL COURT'S FACTUAL FINDINGS At the time of trial, Target Corporation operated a total of 1,476 stores nationwide, in three separate divisions: Target Stores, Mervyn's, and Marshall Field's.[2] Mervyn's has 266 retail department stores nationwide, 125 of which are located in California. Mervyn's California stores range in size from 52,726 to 108,235 square feet. "Mervyn's stores are designed to be selfservice: Customers are expected to maneuver independently through the store to the display units to examine and [to] select merchandise from display units, remove the merchandise[,] and then bring it to a sales counter to purchase." Mervyn's stores generally have a single wide, hard-surface aisle that runs from the stores' entrances to the various departments. The stores have seven departments: women's clothing, men's clothing, children's clothing, lingerie, accessories/jewelry, home, and shoes. Each department consists of one or more carpeted "pads" in which the merchandise is placed on display units that include racks, shelves, and other structures to display merchandise. All display units are moveable; they are not permanently affixed to a structure. Every Mervyn's store uses hundreds of these moveable display units, which fill the store's selling space. The display units are arranged to create pathways within the merchandise selling pads. Persons using mobility aids, like wheelchairs, generally need a minimum of 32 inches of clearance to traverse a pathway. The pathways between merchandise display units at Mervyn's do not all provide 32 inches of clearance. Mervyn's does not impose, as a requirement, the maintenance of any minimum space in pathways created by moveable display units at any of its stores. Mervyn's does have corporate "guidelines" for the arrangement of display units, but these guidelines themselves call for only 18 inches of clearance between "horizontal" merchandise pathways, which are those running parallel to the store's back wall. Mervyn's guidelines do advise 32 inches of clearance for "vertical" merchandise pathways, which are those 581 running parallel to the main aisle from the entrance to the back wall of a department. Mervyn's guidelines also advise 36 inches of clearance at the back wall of a department. But the guidelines are not requirements, and are not universally implemented. Between 15 to 20 percent of the vertical pathways at Mervyn's stores provide less than 32 inches of clearance.[3] Persons with mobility disabilities testified at trial that they were often unable to enter more than a few feet into departments. Even when able to partially enter departments at Mervyn's, witnesses testified that narrowing pathways, dead ends, and protruding merchandise have caused them at times to become stuck or stranded within merchandise pads. Witnesses testified to racks in narrow aisles becoming caught or lodged in their mobility devices, sometimes causing racks to tip over and fall on top of them, or at other times, causing their mobility device to jolt forward or stop abruptly. Several witnesses testified that protruding arms of tightly spaced merchandise racks have physically injured them. Mervyn's has no policy prohibiting the placement of moveable display units that obstruct people with disabilities from using pathways across merchandise pads. Nor has Mervyn's designated any specific individual with corporate responsibility for assuring access to merchandise for people with mobility disabilities. Mervyn's asserted at trial that it provides customer service to the extent it fails to provide actual physical access to merchandise for customers with disabilities. Mervyn's trains all of its employees on how to assist disabled customers. But Mervyn's does not designate any employees specifically to provide customer service to customers with disabilities in its stores. Mervyn's sales clerks are charged with assisting customers in locating merchandise, but the clerks' primary responsibility is processing purchases at the sales counter. Several disabled persons who testified at trial reported instances where they received assistance from Mervyn's employees when they sought help but the witnesses testified that they generally have difficulty getting the attention of sales clerks at Mervyn's stores, and are rarely able to get adequate customer assistance. Several witnesses also testified that, because they are seated in their mobility aids and because the pathways are narrow and clogged, they often cannot see the merchandise and therefore 582 have difficulty telling an employee what items to bring them. Mervyn's vice president of stores admitted that having to ask a salesperson to bring items to a customer is not an adequate substitute for the customer being able to reach or look at the items himself or herself, unless the customer knows exactly what items he or she wants. Plaintiff presented an expert witness, Jonathan Adler, who offered proposals for rearranging the display units on Mervyn's sales floors in ways he believed would result in improved access.[4] Adler is a consultant who advises government and private entities on compliance with disability laws. He testified that his consulting services include "helping business owners survey their existing facilities and providing recommendations for how to correct access barriers." Adler testified that Mervyn's could improve access by utilizing wasted floorspace in some departments and by repositioning display units. Mervyn's countered with the testimony of its director of store design, John Calderon, who said that Adler's proposals would reduce selling space and were contrary to accepted retailing techniques for displaying merchandise. Mervyn's also presented the expert witness testimony of Tyzoon Tyebjee, Ph.D., a marketing professor. Tyebjee conducted a field test of six Mervyn's stores that were respaced with a 32-inch clearance for all vertical pathways between merchandise display units. Respacing the test stores required removal of about 4 percent of display racks, on average. Tyebjee concluded that respacing stores with 32-inch vertical pathway clearance had "an adverse impact on sales at Mervyn's." Clay Creasey, Mervyn's chief financial officer, quantified the lost profit for the six test stores over the course of the nine-month test at approximately $1 million. Creasey calculated that if the test spacing criteria were expanded to all California stores, the result would be approximately $70 million in lost sales and $30 million in lost profit annually. III. DISCUSSION (1) CDR brings this case under California's UCL, which defines unfair competition to include any unlawful business act or practice. (Bus. & Prof. Code, § 17200 (section 17200).) "By proscribing `any unlawful' business 583 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].) CDR claims Mervyn's has unlawfully failed to provide disabled customers with full and equal access to its retail department stores, in violation of state law under California's Unruh Civil Rights Act (the Act) (Civ. Code, § 51 et seq.) and the Disabled Persons Act (the DPA) (Civ. Code, § 54 et seq.), which incorporate protection standards of the federal Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.). To determine if Mervyn's business practice is unlawful, we must first review an array of disability civil rights laws. We then turn to a consideration of CDR's claims on appeal. A. Overview of disability civil rights law 1. Federal law: The ADA "Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that `historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.'" (PGA TOUR, Inc. v. Martin (2001) 532 U.S. 661, 674-675 [149 L.Ed.2d 904, 121 S.Ct. 1879].) "Congress noted that the many forms such discrimination takes include `outright intentional exclusion' as well as the `failure to make modifications to existing facilities and practices.' [Citation.] After thoroughly investigating the problem, Congress concluded that there was a `compelling need' for a `clear and comprehensive national mandate' to eliminate discrimination against disabled individuals, and to integrate them `into the economic and social mainstream of American life.'" (Id. at p. 675.) (2) "In the ADA, Congress provided that broad mandate.... To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." (PGA TOUR, Inc. v. Martin, supra, 532 U.S. at p. 675, fns. & citation omitted.) We are concerned here with title III of the ADA that states a "general rule" of nondiscrimination in public accommodations: "No individual shall be discriminated against on the basis of disability in the full and 584 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." (42 U.S.C. § 12182(a).) Supplementing this general rule are specific prohibitions. (42 U.S.C. § 12182(b)(2); see Spector v. Norwegian Cruise Line Ltd. (2005) 545 U.S. 119, 128-129 [162 L.Ed.2d 97, 125 S.Ct. 2169] [explaining structure of ADA title III].) Among its specific prohibitions, "Title III of the ADA prohibits discrimination on the basis of disability ... both with respect to the accessibility of their physical facilities and with respect to their policies and practices." (Moeller v. Taco Bell Corp. (N.D.Cal. 2004) 220 F.R.D. 604, 606.) (3) Congress adopted two distinct standards for regulating building accessibility: one to apply to facilities existing before January 26, 1993, and the other to apply to facilities newly constructed or altered on or after January 26, 1993. (42 U.S.C. §§ 12182(b)(2)(A)(iv), 12183(a).) A congressional committee remarked that the distinction between existing and new facilities, "reflects the balance between the need to provide access for persons with disabilities and the desire to impose limited cost on businesses. Because retrofitting existing structures to make them fully accessible is costly, a far lower standard of accessibility has been adopted for existing structures." (H.R.Rep. No. 101-485 (III), 2d Sess., p. 60 (1990).) Under the ADA, "existing facilities" must remove architectural barriers "where such removal is readily achievable," meaning "easily accomplishable and able to be carried out without much difficulty or expense." (42 U.S.C. §§ 12182(b)(2)(A)(iv), 12181(9).) If removal of architectural barriers from an existing facility is not readily achievable, the facility must make its goods and services available to disabled individuals through "alternative methods if such methods are readily achievable." (42 U.S.C. § 12182(b)(2)(A)(v).) In contrast, new and altered facilities must be "readily accessible ... and usable," and must comply with extensive and detailed regulations, amounting to a federal building code, known as the ADA Accessibility Guidelines. (42 U.S.C. § 12183(a); 28 C.F.R. § 36, appen. A (2007).) (4) As previously noted, the ADA prohibits discrimination on the basis of disability in places of public accommodation with respect to the accessibility of their physical facilities and with respect to their policies and practices. (Moeller v. Taco Bell Corp., supra, 220 F.R.D. at p. 606.) In the ADA's specific prohibitions section, discrimination is defined to include "a failure to make reasonable modifications in policies, practices, or procedures, when 585 such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations." (42 U.S.C. § 12182(b)(2)(A)(ii).) (5) The ADA permits reliance on state laws that provide greater protection. (42 U.S.C. § 12201(b).) In describing the ADA's relationship with other laws, the ADA states: "Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter...." (Ibid.) 2. State law: The Act and the DPA (6) The Act and the DPA entitle disabled individuals to full and equal access to public accommodations. (Civ. Code, §§ 51, subd. (b), 54.1, subd. (a)(1).) The Act provides broad civil rights protection: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) The DPA protects the civil rights of disabled individuals, and states: "Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to ... places of public accommodation, amusement, or resort, and other places to which the general public is invited...." (Civ. Code, § 54.1, subd. (a)(1).) As the federal government does with the ADA, California mandates specific requirements for building accessibility by statute. (Gov. Code, § 4450 et seq.; Health & Saf. Code, §§ 19956, 19959.) "All buildings constructed or altered after July 1, 1970, must comply with standards governing the physical accessibility of public accommodations. [Citation.] From December 31, 1981 until the present, the standards have been set forth in Title 24 of the California regulatory code [Cal. Code Regs., tit. 24]." (Moeller v. Taco Bell Corp., supra, 220 F.R.D. at p. 607, fns. omitted; see People ex rel. Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 134 [197 Cal.Rptr. 484] [explaining evolution of state building standards].) A violation of a California 586 Code of Regulations, title 24 (title 24) building standard that denies access to a disabled individual has been found to constitute a violation of both the Act and the DPA. (Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 521 [74 Cal.Rptr.2d 684] [DPA]; Moeller v. Taco Bell Corp., supra, at p. 607 [the Act and the DPA]; cf. Wilson v. PFS, LLC (S.D.Cal. 2007) 493 F.Supp.2d 1122, 1125-1126 [questioning the extent to which the Act requires intentional discrimination].) A violation of the ADA also constitutes a violation of both the Act and the DPA. (Civ. Code, §§51, subd. (f), 54, subd. (c).) "After the ADA was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions. [Citations.] Thus, a plaintiff whose rights are violated under the ADA may now seek damages under the California statutes ... ," and is not limited to injunctive relief as plaintiffs are under federal law. (Pickern v. Best Western Timber Cove Lodge Marina (E.D.Cal. 2002) 194 F.Supp.2d 1128, 1131.) The expansion of California law to include ADA violations had other effects. For example, title 24 does not require facilities that predate its enactment to comply with its regulations unless and until the facility is altered. (Pickern, at p. 1131, fn. 4.) In contrast, "[t]he ADA requires existing facilities to remove barriers to access so long as removal is readily achievable, regardless of whether the facility has been altered." (Ibid.) By amending the Civil Code to provide that a violation of the ADA is also a violation of the Act and the DPA, the Legislature authorized the filing of civil actions under state law to enforce the federal requirement that architectural barriers be removed where it is readily achievable to do so, and that alternative means of access be provided where physical access is not readily achievable. B. Appellant CDR's claims on appeal 1. We do not reach CDR's claim that state law provides access rights broader than ADA standards The parties are agreed that a violation of the federal ADA or state building standards in title 24 constitutes a violation of the DPA. The parties disagree on whether a violation of the ADA or a structural access standard under title 24 are the only acts that can constitute a violation of the DPA where architectural barriers are at issue. Here, the trial court found title 24 inapplicable, because it is silent on the matter of moveable merchandise display units, and found no ADA violation upon concluding that removal of the access barrier created by merchandise display units was not readily achievable. 587 The parties do not dispute the trial court's finding that title 24 is inapplicable.[5] The dispute lies with the court's findings that the DPA's "`full and equal access'" standard is "coextensive" with ADA standards. CDR argues that the state DPA mandates full and equal access without qualification, and thus requires the removal of architectural barriers from existing facilities regardless of whether removal is readily achievable within the meaning of the ADA. In response, Mervyn's says the DPA does not compel the removal of architectural barriers except as required by the ADA or specific building code requirements under title 24. CDR's challenge raises an interesting issue about the scope of state disability laws, and has attracted the attention of the California Attorney General and several disability rights organizations, who have filed amicus curiae briefs in support of CDR's position.[6] While the issue has attracted attention on appeal, it was never adequately presented in the trial court. CDR's trial argument for DPA protection broader than ADA standards was undeveloped. CDR vaguely insisted that the DPA's guarantee of full and equal access imposed "affirmative obligations," but CDR never clearly distinguished the state obligation from the federal ADA obligation to remove access barriers. Notably, CDR never addressed perhaps the most pertinent authority on the subject at the time of trial: Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881 [134 Cal.Rptr. 844] (Marsh).[7]Marsh, which predated the ADA but postdated state building standards, held that the DPA does not impose an affirmative duty to eliminate access barriers except as required by specific building standards. (Marsh, at pp. 886-888.) Marsh found that specific legislation mandating building standards governed alleged architectural barriers, not the DPA's general guarantee of "full and equal access." (Marsh, at pp. 886-888.) This district Court of Appeal has noted, in addressing a different aspect of the DPA, that Marsh "may establish a rule that a structural impediment to access does not violate [the DPA] unless the impediment also violates a structural access standard." (Hankins v. El Torito Restaurants, Inc., supra, 63 Cal.App.4th at p. 522; see Cal. Dept. of Justice, Legal Rights of Persons with Disabilities (Nov. 2003) p. 13 [the DPA alone does not require an establishment to make 588 structural modifications].) The Fifth District Court of Appeal recently found that Marsh does establish such a rule, and followed it. (Coronado v. Cobblestone Village Community Rentals, L.P., supra, 163 Cal.App.4th at p. 844.) CDR never addressed Marsh (or the principles it espoused) in the trial court, and continues to overlook Marsh on appeal. "Points not raised in the trial court will not be considered on appeal." (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [61 Cal.Rptr.2d 341].) In any event, resolution of the DPA's scope is unnecessary here. As discussed in detail below, we conclude that CDR proved a violation of ADA accessibility standards, and thus a DPA violation. We need not, and thus do not, determine whether Mervyn's violated state statutes independent of the ADA violation. 2. Mervyn's denial of physical access to merchandise must be evaluated under ADA standards applicable to architectural barriers, not discriminatory policies The starting point of our ADA analysis is the trial court's factual finding, uncontested by Mervyn's on appeal, that between 15 and 20 percent of the vertical pathways between merchandise display units in Mervyn's department stores are inaccessible to disabled individuals using mobility aids. The stores at issue on appeal were constructed before 1993, and thus are "existing facilities" within the meaning of the ADA. A preliminary legal issue is whether the denial of access to merchandise is an architectural barrier (42 U.S.C. § 12182(b)(2)(A)(iv)), as Mervyn's contends, or a discriminatory policy (42 U.S.C. § 12182(b)(2)(A)(ii)), as CDR contends. The distinction is important because the two types of discrimination are evaluated differently under the ADA. The trial court evaluated the case under both types of discrimination. We conclude that the case presents architectural barrier discrimination. The ADA defines discrimination to include, among other things (1) "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations" (42 U.S.C. § 12182(b)(2)(A)(ii)); and (2) "a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable" (42 U.S.C. § 12182(b)(2)(A)(iv)). 589 We acknowledge an initial hesitancy to regard moveable displays as an "architectural" barrier, as the term suggests permanent structures. However, courts presented with similar claims of narrow pathways through merchandise displays have used an architectural barrier analysis. (Colorado Cross-Disability Coal. v. Too (Delaware) (D.Colo. 2004) 344 F.Supp.2d 707, 710-712 (Too); Shimozono v. The May Dept. Stores Co. (C.D.Cal. 2002) 2002 WL 34373490 at pp. 2, 6; Lieber v. Macy's West, Inc., supra, 80 F.Supp.2d at p. 1079.)[8] The United States District Court for the District of Colorado articulated an extensive and persuasive explanation for why the arrangement of moveable displays in a retail clothing store is best evaluated as an architectural barrier. (Too, supra, at pp. 710-712.) The court first noted that the term "architectural" commonly refers to a building's structural elements but found that legislative history compels a broader understanding of the term. (Ibid.) As the court discerned, Congress used the term to mean "physical barriers" and expressly mentioned moveable display racks as a type of physical barrier governed by 42 United States Code section 12182(b)(2)(A)(iv). (Too, at pp. 710-711, citing H.R.Rep. No. 101-485 (II), 2d Sess., p. 110 (1990).) In discussing the reach of the ADA section governing "architectural barriers" in existing facilities, a Congressional committee said: "This section may require the removal of physical barriers, including those created by the arrangement o[r] location of such temporary or moveable structures as furniture, equipment, and display racks. For example, a restaurant may need to rearrange tables and chairs, or a department store may need to adjust its layout of display racks and shelves, in order to permit access to individuals who use wheelchairs, where these actions can be carried out without much difficulty or expense." (H.R.Rep. No. 101-485 (II), 2d Sess., p. 110 (1990).) Regulations issued under the ADA reflect the same, broad meaning of architectural barriers. The regulations provide that "[a] public accommodation shall remove architectural barriers in existing facilities ... where such removal is readily achievable," and offer as an example "[r]earranging tables, chairs, vending machines, display racks, and other furniture." (28 C.F.R. § 36.304(a), (b)(4) (2007).) United States Department of Justice (DOJ) publications are in accord. One publication states that retailers must provide a 590 36-inch minimum width route "between displays and shelves if readily achievable," which is the standard applicable to architectural barriers in existing facilities. (DOJ & U.S. Small Business Admin., Americans with Disabilities Act: ADA Guide for Small Businesses (1999) p. 10.) Another DOJ publication reiterates the regulatory requirement that display racks be rearranged to provide access, if readily achievable. (DOJ, Americans with Disabilities Act, ADA Title III Technical Assistance Manual (ADA Manual), § 4.4200, pp. 31-33 (1992).) That publication also broadly defines "architectural barriers" as "physical elements of a facility that impede access by people with disabilities. These barriers include more than obvious impediments such as steps and curbs that prevent access by people who use wheelchairs." (Id., § 4.4100, at p. 30.) The DOJ states: "Impediments caused by the location of temporary or movable structures, such as furniture, equipment, and display racks, are also considered architectural barriers." (Id., § 4.4100, at p. 31, italics added.) (7) We thus conclude that a physical arrangement of merchandise display racks that denies access to the disabled in stores constructed before 1993 should be evaluated as an architectural barrier under the ADA. (42 U.S.C. § 12182(b)(2)(A)(iv).) We see no basis for treating Mervyn's physical arrangement of its merchandise as a "policy" subject to different evaluative standards. (42 U.S.C. § 12182(b)(2)(A)(ii).) The discriminatory policy provision of the ADA has been applied to far different circumstances from those presented here, such as a golf tournament rule precluding use of golf carts that excluded a golfer with a circulatory disorder from competition (PGA TOUR, Inc. v. Martin, supra, 532 U.S. at pp. 668, 682); a restaurant policy of denying use of an employee restroom to a customer with a leg prosthesis and crutches who could not reach the public restroom up a flight of stairs (Hankins v. El Torito Restaurants, Inc., supra, 63 Cal.App.4th at pp. 515, 524); and a brewery's no animal policy that excluded a guide dog assisted blind man from a public tour (Johnson v. Gambrinus Company/Spoetzl Brewery (5th Cir. 1997) 116 F.3d 1052, 1055-1058). The alleged "policy" CDR challenges is Mervyn's "policy or practice of maintaining narrow pathways that prevent or impede access to the merchandise at its stores." This is plainly a claim that Mervyn's is creating physical barriers that directly bar access to all disabled individuals, and is not a claim of an intangible policy that can be modified to accommodate particular individuals. A plaintiff cannot be permitted to recharacterize architectural access barriers as a policy of maintaining access barriers without destroying the statutory framework that distinguishes between barriers and policies. 591 Where a plaintiff complains that specific physical features at a facility deny access, the complaint is best assessed under principles governing architectural barriers rather than policies. (See MacClymonds v. IMI Investments, Inc. (S.D.Tex. Apr. 5, 2007, No. H-05-2595) 2007 WL 1306803, p. 3 [refusing use of policy paradigm where complaint alleged narrow walkway and other physical accessibility problems].) Accordingly, we conclude that Mervyn's physical arrangement of moveable display racks is best evaluated as an architectural barrier. 3. Architectural barriers must be removed if removal is readily achievable Discrimination under the ADA includes "a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable." (42 U.S.C. § 12182(b)(2)(A)(iv).) Moreover, "where an entity can demonstrate that the removal of a barrier ... is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods" is discrimination, "if such methods are readily achievable." (42 U.S.C. § 12182(b)(2)(A)(v).) (8) "The term `readily achievable' means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include[¶] (A) the nature and cost of the action needed under this chapter; [¶] (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; [¶] (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and [¶] (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity." (42 U.S.C. § 12181(9).) (9) ADA regulations provide additional guidance. The regulations list "[r]earranging ... display racks, and other furniture" among 21 examples of specific "steps to remove barriers." (28 C.F.R. § 36.304(b)(4) (2007).) Public accommodations are urged "to take measures to comply with the barrier removal requirements" in the order of certain priorities. (28 C.F.R. § 36.304(c) (2007).) The first priority is access to the facility from the street, and the next priority is "access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, [and] rearranging tables...." (28 C.F.R. § 36.304(c)(1), (2) (2007).) 592 However, the regulations further provide that "[t]he rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space." (28 C.F.R. § 36.304(f) (2007).) At least one court has held that the "`significant loss of selling space'" standard is "only meaningful to the extent that it affects operations." (Lieber v. Macy's West, Inc., supra, 80 F.Supp.2d at p. 1078.) "The ADA statute makes clear that the readily achievable barrier removal obligation must consider the `overall financial resources,' `effect on expenses and resources,' and the `effect on operations' of the facilities involved in the action." (Ibid.) In calculating the financial resources of a facility, the DOJ states that the resources of both the local facility and parent entity must be considered. (ADA Manual, supra, § 4.4200, p. 32.) In practice, this has meant consideration of the financial resources of both the immediate corporate entity owner and its parent corporation. (See Guzman v. Denny's Inc. (S.D. Ohio 1999) 40 F.Supp.2d 930, 932, 936 [inaccessible restroom at a single Denny's restaurant; court considered resources of Denny's and its parent corporation].) (10) The defendant bears the ultimate burden of proving that removal of an architectural barrier is not readily achievable, as an affirmative defense. (Colorado Cross Disability v. Hermanson Family (10th Cir. 2001) 264 F.3d 999, 1002-1003 (Hermanson.)) Every federal court that has considered the matter has put "the initial burden on the plaintiff to introduce evidence tending to show that the proposed method of removal of an existing architectural barrier is readily achievable." (MacClymonds v. IMI Investments, Inc., supra, 2007 WL 1306803 at p. 5 [collecting cases].) If the plaintiff meets its burden of production, then the defendant must counter with evidence of its own and "carries the ultimate burden of persuasion on its defense that removal is not readily achievable ...." (Ibid.) There is "[s]ome variance among courts ... concerning how much evidence and what type of evidence is required for the plaintiff to meet his burden." (Id. at p. 6 [collecting cases].) Some courts have set the threshold low. (E.g., Massachusetts v. ETrade Access, Inc. (D.Mass. 2006) 464 F.Supp.2d 52, 61.) The Massachusetts court observed: "Practically speaking, there may often be an information imbalance between a plaintiff and a defendant, with the defendant possessing the additional experience and knowledge gained from owning and operating the facility containing the architectural ... barrier. Nevertheless, a plaintiff should at a minimum provide a general removal plan and discuss its feasibility, bearing in mind both structural concerns and estimated costs." (Ibid.) Other courts have set the threshold high. (E.g., Hermanson, supra, 264 F.3d at p. 1009 [requiring "precise cost estimates" and "a specific design" for a proposed wheel chair ramp].) 593 4. CDR produced prima facie evidence that the removal of architectural barriers was readily achievable CDR presented an expert witness who testified at length about proposals to remove the architectural barriers created by Mervyn's arrangement of its merchandise display units. The trial court found that "[p]laintiff has suggested various ways of removing barriers created by narrow pathways. These include rearranging fixtures on the floor, rearranging departments to use extra space from other departments, using more efficient fixtures, using space on the wide main aisle, using MAPS [Merchandise Adjacency Plans for laying out merchandise] that are designed for particular stores and that include minimum pathway widths, measuring pathway widths on a systematic basis, and enforcing Mervyn's own spacing guidelines." Nevertheless, the trial court deemed this evidence insufficient to meet CDR's initial burden of producing evidence that removal of barriers was readily achievable. The trial court, in reliance upon the strict standard of Hermanson, supra, 264 F.3d at page 1009, faulted CDR's proposals as "entirely conceptual," "unconnected to any cost estimates," and made "without regard to merchandising or retail needs" by a disability access expert unfamiliar with Mervyn's merchandise presentation plans. The court noted, for example, that plaintiff's proposals for rotating tables away from the main aisle and removing rack extensions would reduce merchandise visibility, contrary to a "basic retailing technique." CDR says that the court set the threshold for its prima facie case too high. We agree. (11) As the United States District Court for the District of Massachusetts noted: "Practically speaking, there may often be an information imbalance between a plaintiff and a defendant, with the defendant possessing the additional experience and knowledge gained from owning and operating the facility containing the architectural ... barrier." (Massachusetts v. ETrade Access, Inc., supra, 464 F.Supp.2d at p. 61.) Such is the case here. In determining whether a plaintiff has introduced prima facie evidence tending to show that removal of an existing architectural barrier is readily achievable, a plaintiff should not be expected to address industry and operational concerns best known by the retailer. Plaintiff made a specific proposal to remove the architectural barrier caused by narrow merchandise pathways by, among other things, rotating merchandise tables, contracting display racks, and removing display rack extensions. Plaintiff should not be required to provide a plan so specific that it fully accommodates industry techniques for highlighting merchandise and Mervyn's specific presentation practices. This case is unlike Hermanson, supra, 264 F.3d at page 1001, which was concerned with renovating a historical building, not rearranging display racks. In Hermanson, the plaintiff presented a conceptual "sketch" for a wheelchair ramp into a historical building, with "estimated probable costs" based on 594 similar projects. (Id. at p. 1007.) The court, remarking that it was a "close case," found the evidence insufficient because the plaintiff failed to present any evidence the city would approve modification to the historical building, failed to provide precise costs estimates, and "[p]erhaps most importantly," failed to present a specific design. (Id. at p. 1009.) Notably, there was no "information imbalance" (Massachusetts v. ETrade Access, Inc., supra, 464 F.Supp.2d at p. 61) between the plaintiff and defendant in Hermanson. A plaintiff may obtain specific plans and precise cost estimates for a structural renovation like installation of a wheelchair ramp without owning and operating the facility. But the plaintiff here could not estimate the cost of rearranging display racks without operational knowledge such as sales per square foot and the applicable profit margin. The "readily achievable analysis must be done on a case by case basis." (H.R.Rep. No. 101-485 (III), 2d Sess., p. 61 (1990).) In this case, we conclude that plaintiff produced sufficient evidence to satisfy its burden to show that its suggested method of barrier removal was readily achievable. 5. Mervyn's produced substantial evidence that removal of architectural barriers would result in a significant loss of sales, and thus removal is not readily achievable "[A] failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable" is discrimination under the ADA. (42 U.S.C. § 12182(b)(2)(A)(iv).) "The term `readily achievable' means easily accomplishable and able to be carried out without much difficulty or expense." (42 U.S.C. § 12181(9).) "The rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space." (28 C.F.R. § 36.304(f) (2007).) The trial court found that CDR's proposals to remove access barriers by fully implementing Mervyn's spacing guidelines or otherwise reconfiguring merchandise displays would necessitate a loss of selling space. The court found the loss of selling space significant upon crediting Mervyn's evidence that six stores lost $1 million in profit in nine months when the stores adopted 32-inch vertical pathways through merchandise displays. The court also accepted Mervyn's evidence that Mervyn's would suffer annual lost sales of $70 million, and up to $30 million in lost profits, if the same spacing guidelines were implemented in all California stores. The court concluded that the removal of access barriers with "[s]uch a drastic result" of lost sales and profit that would imperil Mervyn's operations "is not, and cannot be deemed, readily achievable." 595 CDR argues that the six-store study was fundamentally flawed, and the extrapolation of the study results to all Mervyn's stores was wrongly admitted into evidence. Even if the study and extrapolation were properly relied upon, argues CDR, the court erred in failing to consider Mervyn's total financial resources when assessing whether the removal of access barriers is readily achievable. More generally, CDR argues that the evidence is insufficient to support the trial court's finding that respacing Mervyn's merchandise pathways to allow greater access is not readily achievable because respacing would result in a significant loss of selling space. We review the trial court's factual findings under the deferential substantial evidence standard. "`Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that... the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.'" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 [68 Cal.Rptr.2d 758, 946 P.2d 427].) Substantial evidence supports the trial court's findings. As noted earlier, Mervyn's presented the testimony of marketing professor Tyebjee, who conducted a field test of six Mervyn's stores that were respaced with a 32-inch clearance for all vertical pathways between merchandise display units. Tyebjee did not determine the amount of selling space lost by respacing the test stores, but Mervyn's chief financial officer, Clay Creasey, testified that respacing the test stores required removal of about 4 percent of display racks, on average, or roughly 45 to 50 racks per store. Creasey explained that the removal of display racks is the removal, or loss, of selling space. Tyebjee concluded that respacing stores with 32-inch vertical pathway clearance had "an adverse impact on sales at Mervyn's," but he did not quantify the impact. Creasey quantified the lost profit for the six test stores over the course of the nine-month test at approximately $1 million. Creasey calculated that if the test spacing criteria were expanded to all California stores, the result would be approximately $70 million in lost sales and $30 million in lost profit annually. CDR asserts that "Tyebjee's study was conceptually and methodologically flawed in multiple respects." CDR argues that the test stores were not a representative sample, and that the study failed to state how many racks were removed, failed to evaluate a range of respacing options, and failed to consider if improved displays could compensate for lost selling space. The argument is unavailing. There is substantial evidence that the test stores were 596 a representative sample. Creasey was asked on cross-examination: "Is it your testimony that the six test stores are representative of all Mervyn's 125 stores? Is that your testimony?" Creasey replied unequivocally: "That's correct, yes." While Creasey acknowledged that each store differs in its "competitive environment" and its mix of merchandise, Creasey was adamant that "there are vastly more similarities than there are differences" among the stores. Likewise, any failure of Tyebjee's study to state the number of display racks removed for the test stores was addressed by Creasey, who testified that "on average the stores lost approximately 4 percent of the racks that the store overall has, and that's roughly 45 to 50 racks per store." On appeal, we do not read a single witness's testimony in isolation but consider the record as a whole. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336 [95 Cal.Rptr.2d 16].) CDR's remaining complaints about Tyebjee's studythat the study did not evaluate other respacing options or the possible compensating effect of improved merchandise displaysdoes nothing to undermine the evidentiary force of the study on appeal in showing an adverse impact on sales from respacing. The study is substantial evidence that respacing resulted in lost sales. CDR's conflicting claim that lost sales can be minimized by respacing only a portion of the stores or improving merchandise displays was weighed, and rejected, at trial. On appeal, we must resolve all conflicting evidence in favor of the fact finder's judgment. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.) CDR's challenge to Creasey's testimony on lost profits is likewise unavailing. CDR argues that the trial court erred in relying on Creasey's testimony that Mervyn's lost profit of $1 million from respacing the test stores, and would lose $30 million annually if all California stores were respaced. CDR first argues that the testimony was admitted for a limited purpose (to explain why Mervyn's did not implement spacing guidelines) and not for the truth of whether Mervyn's suffered lost profits from respacing stores. CDR is wrong. While Creasey's testimony on lost profits was initially introduced and admitted for a limited purpose, the evidence was subsequently admitted without limitation. When Creasey was first questioned about lost sales, the court indicated that the witness could testify about management decisions taken in response to the Tyebjee study but could not extrapolate lost profits from the study. The court said that if Mervyn's wished to expand Creasey's testimony beyond the effect of the study on management decisions, "we'll have to have a discussion again." Such a discussion shortly ensued. Creasey 597 began to testify about the amount of lost sales and profits, and CDR objected on lack of foundation, speculation, and introduction of an undisclosed expert witness. The court asked the parties' attorneys if CDR had notice that Creasey would testify about the study, and Mervyn's said that Creasey had been deposed on the subject. Deposition testimony was read in which Creasey said that Mervyn's extrapolated lost sales from the Tyebjee study. The court overruled CDR's objection to Creasey's testimony, and admitted the evidence without stating any limitation. Creasey's testimony on lost sales was not admitted for a limited purpose. Nor did the trial court err in overruling CDR's objections. CDR argues on appeal that Creasey's testimony was conclusory and without foundation because he did not explain "how he arrived at his estimated $1 Million in lost profits for the test stores, nor how he got from that figure to his estimated annual, statewide loss of $70 Million in sales, nor how he got from that figure to the $30 Million in lost profits." (Underscoring omitted.) The record is to the contrary. The Tyebjee study reported lost sales by store department. Creasey testified that he totaled the department figures for a storewide average weekly figure of $10,771 in lost sales. Creasey said he then applied a profit margin to the sales figure to calculate lost profits of $1 million on the lost sales reported by Tyebjee for the test stores over a nine-month period. Creasey also explained that he estimated $70 million in lost sales if all California stores were respaced like the test stores. This explanation is well founded: $10,771 in weekly lost sales, multiplied by 52 weeks and 125 California stores, equals approximately $70 million. Creasey also testified that $70 million in lost sales equates to $30 million in lost profits for Mervyn's. As the record shows, Creasey did explain his calculations. While his explanation was not highly detailed, it was sufficient. We also reject CDR's contention that Creasey's calculations and extrapolations from the Tyebjee study were beyond Creasey's knowledge and capabilities. Creasey is the chief financial officer of a major corporation. He has both a bachelor's degree in statistics and a master's degree in business administration from Stanford University. Creasey initiated, planned, and participated in the study, and testified that he fully understood the study and its results. CDR insists that no legitimate extrapolation of lost sales was possible and that "Mervyn's was erroneously allowed to use Mr. Creasey to do what Prof. Tyebjee could not and did not doquantify lost sales, project lost profits and extrapolate from six test stores to 125 stores statewide." But Tyebjee never testified that such calculations were impossible. He simply said 598 that he did not receive profit margin information and was not asked to extrapolate his study to Mervyn's stores statewide. Far from saying that a statewide extrapolation was impossible, Tyebjee testified: "I think there's enough substance to the estimates I have in my results which could be used to make that projection by somebody who had knowledge about the differences and similarities with various Mervyn's stores." There is substantial evidence that Creasey, as Mervyn's chief financial officer, had the knowledge necessary to project lost sales statewide. Finally, CDR argues that $70 million in annual lost sales is insignificant when the overall financial resources of Mervyn's and its parent corporation at the time, Target, are considered. CDR's narrow focus on Target's assets ignores broader considerations relevant to assessing whether the removal of an access barrier is readily achievable. As noted earlier, "[t]he term `readily achievable' means easily accomplishable and able to be carried out without much difficulty or expense." (42 U.S.C. § 12181(9), italics added.) Congress understood the readily achievable standard to be a "modest requirement," that would not be burdensome to those providing public accommodations: "if barrier-removal cannot be accomplished readily, then it is not required." (H.R.Rep. No. 101-485 (II), 2d Sess., p. 109 (1990).) A number of factors are relevant to determining whether an action is readily achievable, of which the overall financial resources of the defendant is just one. (Ibid.) Other relevant factors include "the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility." (42 U.S.C. § 12181(9)(B).) Mervyn's presented substantial evidence that lost sales of $70 million annually would have a drastic negative impact upon its operations. In rendering its judgment, the trial court relied upon evidence that "Mervyn's sales trends have been declining over the years, and have put the company in a difficult financial position"; "Mervyn's is already underperforming in sales with competitors such as Kohl's"; and "a policy resulting in millions of dollars in annual lost profits would put Mervyn's out of business." The trial court reasonably concluded that an action cannot be considered readily achievable if it would drive a corporation out of business. 6. There is insufficient evidence that Mervyn's made its facilities available through alternative methods (12) A retailer's obligation to provide access to the disabled is not limited to the readily achievable removal of physical barriers. Where removal of physical barriers is not readily achievable, a retailer must adopt alternative methods for providing full and equal access to its goods and services. (42 U.S.C. § 12182(b)(2)(A)(v).) The ADA expressly provides: "[W]here an entity can demonstrate that the removal of a barrier ... is not readily 599 achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods" is actionable discrimination, "if such methods are readily achievable." (42 U.S.C. § 12182(b)(2)(A)(v).) On this subject, a congressional committee remarked that, if a retail "store could demonstrate that raising, lowering, or removing shelves would not be readily achievable, then the store must consider providing access through alternative methods. For example, a clerk could retrieve merchandise from inaccessible shelves, unless this alternative method is not readily achievable." (H.R.Rep. No. 101-485 (III), 2d Sess., p. 62 (1990).) It was also observed that a retail department store need not "separate each and every display fixture in order to provide wheelchair clearance maneuverability. It is sufficient if a customer who uses a wheelchair is able to determine, once in a department, that the store offers, for example, black leather jackets. Once that is determined, the customer can rely upon a salesperson to retrieve a black leather jacket in the customer's size." (H.R.Rep. No. 101-485 (II), 2d Sess., p. 110 (1990).) At trial, Mervyn's claimed that it provided adequate customer service to assist disabled individuals in gaining access to merchandise that could not be physically reached through the sometimes narrow merchandise pathways. The trial court rejected the claim. The court concluded that "Mervyn's customer service is not always effective to help disabled customers gain access to inaccessible merchandise. The evidence indicates that no one in particular is assigned to assist persons with disabilities and sales clerks are generally available to assist shoppers only when they are not checking out customers at the cash registers." Moreover, "[t]he testimony of witnesses who regularly shopped at Mervyn's establishes that they were sometimes unable to view, retrieve, or purchase merchandise they were interested in buying because after being unable to gain physical access to merchandise, shoppers encountered Mervyn's employees who were unavailable or unwilling to provide adequate assistance." The trial court nevertheless found that Mervyn's satisfied its obligation to provide access by alternative means. The court concluded that Mervyn's "proved that it is taking readily achievable steps to remove any barriers that may exist at its stores. Mervyn's designs its new stores to provide access within the merchandise pads, as evidenced by the new store in Folsom, which 600 has vertical pathways in all departments in excess of 36 inches. In remodeling older stores, Mervyn's explicitly considers access issues and improves access within the pads." In its briefing on appeal, Mervyn's abandons its previous claim that adequate access is provided by customer service (a claim the trial court rejected) and embraces the trial court's conclusion that access to Mervyn's new and remodeled stores excuses the lack of access to its existing stores. We cannot accept the trial court's conclusion. The average age of a Mervyn's store is 17.5 years. The trial court's statement of decision, issued in 2004, observes that only two new stores have been opened since 1996 or 1997the Folsom store and another in Las Vegas, Nevada. The trial court also noted that Mervyn's has remodeled some older stores, including a Bakersfield store that was designed with narrower display racks. However, Mervyn's does not require that any of its storesincluding the new and remodeled storesprovide sufficient clearance for those using wheelchairs or other mobility aids. Mervyn's has also failed to point to any evidence that these newer, assertedly more accessible stores are sufficiently near its existing stores to provide alternative access to disabled individuals. Mervyn's does not satisfy its obligation to make its merchandise accessible to a disabled shopper at its Cupertino store by constructing a new store 150 miles away in Folsom. As we noted earlier, Congress adopted two distinct standards for regulating building accessibility: one to apply to facilities existing before January 26, 1993, and the other to apply to facilities newly constructed or altered on or after January 26, 1993. (42 U.S.C. §§ 12182(b)(2)(A)(iv), 12183(a).) Under the ADA, "existing facilities" must remove architectural barriers "where such removal is readily achievable," meaning "easily accomplishable and able to be carried out without much difficulty or expense." (42 U.S.C. §§ 12182(b)(2)(A)(iv), 12181(9).) If removal of architectural barriers from an existing facility is not readily achievable, the facility must make its goods and services available to disabled individuals through "alternative methods if such methods are readily achievable." (42 U.S.C. § 12182(b)(2)(A)(v).) In contrast, new and altered facilities must be "readily accessible ... and usable," and must comply with extensive and detailed regulations. (42 U.S.C. § 12183(a); 28 C.F.R. § 36, appen. A (2007).) The parties are agreed that this appeal concerns stores constructed before 1993, which are "existing facilities" within the meaning of the ADA. Nothing in the ADA suggests that a corporate chain of department stores satisfies its obligation to make existing facilities accessible (to the extent readily achievable) by constructing new and geographically distant facilities that are accessible. 601 At oral argument, Mervyn's counsel conceded that the construction of new stores is not a reasonable alternative to removing access barriers at existing stores, at least for existing stores that are geographically remote from the new stores' locations. Counsel suggested that customer service provides some relief to disabled shoppers denied access to merchandise. But, as noted above, the trial court found Mervyn's customer service inadequate for this purposea finding uncontested in Mervyn's brief to this court. (13) We conclude that there is insufficient evidence to support the trial court's finding that Mervyn's made its merchandise available through alternative methods to disabled individuals who were denied physical access. Mervyn's failure to provide access by alternative methods constitutes a violation of the ADA, and thus a violation of both the Act and the DPA. (42 U.S.C. § 12182(b)(2)(A)(v); Civ. Code, §§ 51, subd. (f), 54, subd. (c).) Mervyn's violation of federal and state law is also a violation of the UCL, which defines unfair competition to include any unlawful business act or practice. (§ 17200.) Accordingly, we reverse the judgment in favor of Mervyn's and remand the case to the trial court for further proceedings. C. Proceedings on remand CDR says it is entitled to immediate entry of judgment in its favor on remand, followed by a determination of the appropriate scope of injunctive relief. Mervyn's argues that judgment cannot be entered for CDR because CDR lacks standing to maintain this action in the trial court. Mervyn's is correct. As discussed above, CDR lost standing as a plaintiff when the voters adopted Proposition 64, which amended the UCL to limit private party lawsuits to those who have lost money or property as a result of alleged unfair competition. (Mervyn's, supra, 39 Cal.4th at p. 227.) We therefore cannot remand the case with directions to enter judgment in CDR's favor. However, CDR is entitled to an opportunity to amend its complaint to substitute a new plaintiff with standing. (Branick, supra, 39 Cal.4th at pp. 239, 242-243.) We therefore remand the case to the trial court so that CDR may file a motion for leave to amend its complaint. "On remand, should plaintiff[] in fact file a motion to amend, the superior court should decide the motion by applying the established rules governing leave to amend . . . ." (Id. at p. 239, citing Code Civ. Proc., § 473.) If the court grants the motion, the court shall enter judgment in favor of the newly substituted plaintiff and determine the appropriate scope of injunctive relief. In fashioning injunctive relief, the court shall consider appropriate alternative means for making merchandise available to disabled individuals who are denied physical access to the merchandise. *602 IV. DISPOSITION The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Appellant CDR shall recover its costs on appeal upon timely application in the trial court. (Cal. Rules of Court, rule 8.278.) Ruvolo, P. J., and Reardon, J., concurred. NOTES [1] Mervyn's was sued as Mervyn's California, Inc.; however, counsel for Mervyn's advises us that the correct corporate name is Mervyn's LLC. [2] Target Corporation sold Mervyn's in September 2004. [3] CDR's expert witness claimed a higher percentage of narrow pathways, but the trial court rejected that testimony in favor of the testimony of Mervyn's employees. We accept the trial court's determination, as it is not our place to reweigh the evidence. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623 [34 Cal.Rptr.2d 26].) It should be noted that CDR's chief complaint is with the width of the vertical pathways. CDR asserts on appeal that full implementation of guidelines calling for 32-inch vertical pathways would allow access to most of Mervyn's merchandise because one could travel down a 32-inch vertical pathway, "turn, and go down the next" vertical pathway, and thus avoid the horizontal 18-inch pathways. Where one is to "turn" is unclear, presumably at the back wall where guidelines advise a 36-inch pathway. [4] Plaintiff also offered a marketing professor as an expert witness, Michael Levy, Ph.D. Levy was offered as an expert on business practices useful for easing congestion of retail merchandise, including certain distribution techniques and inventory protocols. The trial court struck Levy's testimony upon concluding that the professor's generalized testimony was irrelevant to assessing Mervyn's specific business operations. Finding no abuse of discretion, we affirm the trial court's exclusion of Levy's testimony. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900-901 [122 Cal.Rptr.2d 802].) [5] In similar litigation against a retailer for narrow merchandise pathways, a federal district court held that title 24's regulations on the width of aisles are inapplicable to pathways between moveable merchandise displays. (Lieber v. Macy's West, Inc. (N.D.Cal. 1999) 80 F.Supp.2d 1065, 1078-1079.) We express no opinion on the matter. [6] The Attorney General's support appears limited, however. The Attorney General maintains that the state guarantee of "full and equal" access is broader than the ADA's similar guarantee in cases involving a discriminatory policy. It is not clear that the Attorney General would take the same expansive view in cases involving architectural barriers, which is what we determine this case to concern. [7] Recent authority, cited by Mervyn's before oral argument on appeal, follows the Marsh analysis. (Coronado v. Cobblestone Village Community Rentals. L.P. (2008) 163 Cal.App.4th 831 [77 Cal.Rptr.3d 883].) [8] Unpublished cases from federal courts may be cited. (Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 787, fn. 6 [11 Cal.Rptr.3d 522].) We note, however, that one who cites a case available only in a computer-based source must attach a copy of the case to the brief. (Cal. Rules of Court, rule 8.1115(c).) Mervyn's counsel is reminded to comply with this rule in the future.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266202/	6 Cal.Rptr.3d 16 (2003) 112 Cal.App.4th 1124 Juan A. RIVERA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Tower Staffing Solutions et al., Respondents. No. B163686 Court of Appeal, Second District, Division Eight October 3, 2003 17 Berger & Michelena and Nestor A. Michelena, Los Angeles, for Petitioner. Richard Krimen, Robert W. Daneri and Louis Harris, San Francisco, for Respondents Tower Staffing Solutions and State Compensation Insurance Fund. No appearance for Respondent Workers' Compensation Appeals Board. BOLAND, J. Petitioner Juan Rivera sustained an industrial injury and entered into a settlement agreement with his employer, respondent Tower Staffing Solutions (Tower). The settlement included accrued and continuing periodic indemnity payments. Rivera also requested commutation of future indemnity payments into a lump sum, which was approved by the Workers' Compensation Appeals Board (WCAB). Tower was late in paying the amounts due and included a 10 percent increase under Labor Code section 4650, subdivision (d).[1] Rivera alleged the payments were late and underpaid, and sought multiple 10 percent increases for unreasonable delay under section 5814.[2] The workers' compensation administrative law judge (WCJ) found there was late payment and a greater amount owed under section 4650, and awarded two increases under section 5814. Tower appealed. The WCAB concluded in an en banc decision, that the timing 18 provisions of section 4650[3] limited the statute to periodic indemnity payments, and that the statute did not apply to periodic indemnity payments reduced to a lump sum by reason of commutation or settlement. The WCAB affirmed a single increase under section 5814 for the late payment of indemnity. Rivera petitions for writ of review. He contends the plain language of section 4650, subdivision (d) is that the statute is applicable to any payment of indemnity. Rivera further contends he is entitled to multiple increases under section 5814. Tower answers that the plain language of section 4650 supports the WCAB's interpretation, and the decision should be affirmed. We conclude that section 4650 is applicable to payments of periodic and accrued temporary and permanent disability indemnity, but not to payments of future permanent disability indemnity commuted into a lump sum. Accordingly, the decision of the WCAB is annulled and the matter is remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND Juan Rivera, a machine operator for Tower, caught his left hand in a machine at work on March 4, 1999, and suffered a severe crush amputation through the joints of the fingers and a torn forearm muscle. On December 12, 2000, Rivera and Tower entered into Stipulations with Request for Award (Stipulations), which was awarded by the WCJ. The Stipulations provided that all temporary disability indemnity was adequately compensated through April 30, 2000. It further provided that the injury caused 75 percent permanent disability, which totaled $72,295.09 in indemnity payable at $153.33 per week beginning May 1, 2000. In addition, Rivera would receive a life pension at the indemnity rate of $51.75 per week after the payment of permanent disability indemnity. [4] The Stipulations finally provided that $18,000 in attorney's fees would be commuted from the far end of the award, and no interest [5] or penalties[6]19 would be imposed if the award were paid within 25 days. At the same time, Rivera petitioned for commutation into a lump sum all future indemnity payments, including the life pension.[7] The WCJ ordered the commutation, subject to objection within 15 days. Tower did not object. On or about January 26, 2001, Tower paid the attorney's fees and $22.13 to Rivera. An accompanying letter indicated that the payment was based on the Stipulations. On or about February 14, 2001, Tower paid Rivera $98,209.20. An accompanying letter set forth a series of calculations and indicated that the amount represented all future indemnity payments from February 8, 2001, including the life pension, which was commuted into the lump sum. Also included in the amount was interest and $10,424.84, which was payment under section 4650. Rivera claimed the amounts paid were incorrect and unreasonably delayed, and he was entitled to multiple increases or penalties under sections 4650 and 5814. The parties proceeded to trial and submitted briefing. Tower provided its calculations and denied liability for multiple increases or penalties under Christian v. Workers' Comp. Appeals Bd. (1997) 15 Cal.4th 505, 63 Cal.Rptr.2d 336, 936 P.2d 115 (Christian) [erroneous decision not to pay benefit followed by 11 demands for payment not separate and distinct acts of unreasonable delay or refusal that involve different classes of benefits, claims for medical or travel expense, delay following penalty award, or other legally significant event such as an admission of liability] and California Highway Patrol v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1201, 108 Cal.Rptr.2d 118 (California Highway Patrol) [only one section 5814 increase for failure to include required interest with unreasonably delayed payment]. The WCJ found Tower had unreasonably delayed payment and underpaid the amount owed under section 4650, subdivision (d). The WCJ imposed two separate 10 percent increases under section 5814. In its opinion, the WCJ explained that Tower's counsel was personally served with the commutation order after it was 20 approved, and since there was no objection within 15 days, payment was due on January 2, 2001. However, the WCJ viewed the two late payments as a single unreasonable delay under Christian. The WCJ further found that Tower's calculation of the commuted value of permanent disability indemnity was correct. Because payment under section 4650 was short $541.07, a second increase under section 5814 was justified. Tower petitioned the WCAB for reconsideration. Tower conceded the late payment and a single increase under section 5814. However, Tower maintained that the calculation error under section 4650 was part of a single course of conduct under Christian and California Highway Patrol. The WCAB granted reconsideration and issued an en banc decision.[8] The WCAB noted the timing provisions of section 4650 and reasoned that, "By its own wording, section 4650 applies to periodic payments of temporary and permanent disability indemnity." The WCAB also cited cases that addressed section 4650, such as Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 108 Cal.Rptr.2d 1 (Gangwish).[9] The WCAB concluded that periodic indemnity payments changed or commuted into a lump sum were no longer periodic and, consequently, the timed payment and penalty provisions of section 4650 were not applicable.[10] The WCAB affirmed a single increase under section 5814 for the unreasonably delayed payment. Rivera petitions for writ of review. He contends section 4650, subdivision (d), applies to any indemnity payment as expressly stated by the statute. He also contends commuted future periodic permanent disability indemnity remains permanent disability indemnity when reduced to a lump sum under section 5101, subdivision (b).[11] Rivera further argues commutation 21 of indemnity is based on need under section 5100, and the purpose of section 4650 is to assure prompt payment of indemnity. Finally, he asserts that the WCAB's decision is inconsistent with Moulton v. Workers' Comp. Appeals Bd. (2000) 84 Cal.App.4th 837, 101 Cal.Rptr.2d 175 (Moulton). Moulton involved an award of accrued temporary disability indemnity, which was paid partially and late, and without payment under section 4650. The Court of Appeal determined that the amount of temporary disability indemnity awarded was due within 14 days under section 4650. (Moulton, supra, 84 Cal.App.4th at p. 845, 101 Cal.Rptr.2d 175.) The Court of Appeal imposed only one penalty under section 5814 for the temporary disability indemnity paid. Otherwise, the employer who made a partial payment would be penalized more than the employer who made no payment. (Id. at pp. 843-844, 101 Cal.Rptr.2d 175.) The Court of Appeal further concluded that the failure to pay under section 4650 was a separate and distinct unreasonable delay under section 5814 from the late and partial indemnity payment. (Id. at pp. 844-845, 101 Cal.Rptr.2d 175.) Tower responds that the plain language and numerous references to timing in section 4650 establish that the statute is limited to periodic indemnity payments. Thus, the WCAB's interpretation, which is entitled to great weight, should be affirmed since it is not clearly erroneous.[12] Tower also distinguishes Moulton as involving true accrued periodic indemnity payments, rather than future periodic indemnity payments that are commuted into a lump sum. DISCUSSION I. Standard of Review On appeal the reviewing court is bound by the factual findings and decision of the WCAB if they are supported by substantial evidence. (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233, 20 Cal.Rptr.2d 26.) The court may not reweigh evidence or decide disputed facts. (Ibid.) In contrast, interpretation of governing statutes is decided de novo by the appellate court, even though the WCAB's construction is entitled to great weight unless clearly erroneous. (Boehm & Associates v. Workers' Comp. Appeals Bd. (1999) 76 Cal.App.4th 513, 515-516, 90 Cal.Rptr.2d 486 (Boehm); Ralphs Grocery, supra, 38 Cal.App.4th at p. 828, 45 Cal.Rptr.2d 197.) When interpreting a statute, the Legislature's intent should be determined and given effect. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224 (Moyer).) The best indicator of legislative intent is the plain meaning of the statutory language when clear and unambiguous. (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388, 20 Cal.Rptr.2d 523, 853 P.2d 978 (DuBois); Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Boehm, supra, 76 Cal.App.4th at p. 516, 90 Cal.Rptr.2d 486.) Effect also should be given to the statute's every word and clause, leaving no part or provision useless, deprived 22 of meaning or contradictory. (DuBois, supra, 5 Cal.4th at p. 388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) The statute also should be interpreted consistently with its intended purpose, and harmonized within the statutory framework as a whole. (DuBois, supra, 5 Cal.4th at p. 388, 20 Cal.Rptr.2d 523, 853 P.2d 978.) Finally, workers' compensation is liberally construed with the purpose of extending benefits to industrially injured workers. (§ 3202; Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1065, 40 Cal.Rptr.2d 116, 892 P.2d 150.) In this case, there is little factual dispute and appellate review of statutory interpretation is de novo with appropriate deference given to the WCAB's construction and decision. (Boehm, supra, 76 Cal.App.4th at pp. 515-516, 90 Cal.Rptr.2d 486; Ralphs Grocery, supra, 38 Cal.App.4th at p. 828, 45 Cal.Rptr.2d 197.) II. The Meaning of Section 4650 We must decide whether section 4650 is limited to periodic indemnity payments as determined by the WCAB, or whether the statute is also applicable to lump sum accrued or commuted indemnity payments as asserted by Rivera. To determine the proper application of the statute, we must ascertain the Legislature's intent in enacting section 4650. Generally, the best indicator of legislative intent is the plain meaning of the statutory language. (DuBois, supra, 5 Cal.4th at pp. 387-388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Since this case involves permanent disability indemnity, we first examine the plain language of section 4650, subdivision (b), which specifically addresses permanent disability indemnity. As emphasized by the WCAB and Tower, the plain language of section 4650, subdivision (b) provides a timetable for payment of permanent disability indemnity, which generally is every 14 days following the last indemnity payment. However, the provisions of subdivision (b) are not limited to the timing of indemnity payments. The subdivision's additional words and clauses also must be examined so that no part of the subdivision (b) is meaningless or contradictory. (DuBois, supra, 5 Cal.4th at pp. 387-388, 20 Cal.Rptr.2d 523, 853 P.2d 978; Moyer, supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Subdivision (b) further requires the continuation of timely payments of permanent disability indemnity which the employer reasonably estimates is due, even in situations where the extent of permanent disability cannot be determined within 14 days of the last payment of temporary disability indemnity. This language may be reasonably interpreted as including accrued or lump sum permanent disability indemnity, which an employer reasonably estimates or learns is due much later than 14 days after the last payment of temporary disability indemnity. In this case, Tower stipulated more than 7 months after the last payment of temporary disability indemnity was due that permanent disability indemnity was owed beginning May 1, 2000.[13] To clarify whether the Legislature intended the language of section 4650, subdivision (b) to include accrued or lump sum permanent disability indemnity, we must also examine whether harmony and consistency within the statutory framework is promoted by this interpretation. (DuBois, supra, 5 Cal.4th at p. 388, 20 Cal.Rptr.2d 23 523, 853 P.2d 978.) Section 4650, subdivision (a) provides for payment of temporary disability indemnity that is due within 14 days after knowledge of injury and disability. In addition, subdivision (a) expressly provides that all indemnity then due must be paid. This includes accrued temporary disability indemnity, which generally is owed in a lump sum. Moulton exemplifies a case where all temporary disability indemnity that accrued was owed in a lump sum. The Court of Appeal determined that payment of accrued temporary disability indemnity awarded was due within 14 days under section 4650. (Moulton, supra, 84 Cal.App.4th at p. 845, 101 Cal.Rptr.2d 175.) The WCAB en banc held that section 4650 does not apply to lump sum periodic indemnity payments, without reconciling the decision with subdivision (a) and the conclusion in Moulton. While subdivision (b) does not expressly state that all indemnity due must be paid, we conclude that the language requiring timely payment of permanent disability indemnity that an employer reasonably estimates is due, was intended by the Legislature to have similar meaning and application as in subdivision (a). This interpretation promotes consistent application of section 4650. (DuBois, supra, 5 Cal.4th at p. 388, 20 Cal.Rptr.2d 523, 853 P.2d 978.) Therefore, subdivision (b) is not limited to periodic permanent disability indemnity payments and includes lump sum payments of accrued permanent disability indemnity. In addition, the provisions of subdivision (d) apply to untimely payments of accrued temporary and permanent disability indemnity. As Rivera points out, subdivision (d) expressly provides that it applies to any indemnity payment not made timely as required by section 4650. As set forth above, subdivision (a) includes accrued temporary disability indemnity, and subdivision (b) includes accrued permanent disability indemnity. On remand, if it is determined permanent disability indemnity did accrue and Tower was late in making payment, the payment would be subject to section 4650. A. Applying Section 4650 To Accrued Disability Indemnity Is Consistent With The Statute's Purpose Applying section 4650 to accrued temporary and permanent disability indemnity is consistent with the statute's purpose. The WCAB en banc interpreted section 4650 as limited to periodic indemnity payments. However, the purpose of section 4650 is broader. Section 4650 not only provides for scheduled indemnity payments, it is also a procedure for assuring financial support to injured workers during the recovery period following an industrial injury. (Gangwish, supra, 89 Cal.App.4th at pp. 1293-1295, 108 Cal.Rptr.2d 1.) Temporary disability indemnity is intended to replace lost wages, and permanent disability indemnity provides compensation for loss of earning capacity or physical impairment. (Western Growers, supra, 16 Cal.App.4th at p. 235, 20 Cal.Rptr.2d 26; Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473, 286 Cal.Rptr. 600.) Under section 4650, subdivision (a), the Legislature provided for indemnity or financial support while dependent injured workers are temporarily unable to work and without wages. The Legislature also provided for financial support to continue during the period of adjustment for loss of earning capacity or physical impairment. This financial support is in the form of permanent disability indemnity, which, under subdivision (b), follows payment of temporary disability indemnity. 24 Accrued disability indemnity is periodic disability indemnity that is owed but was not paid. Accrued disability indemnity is also the financial support in lieu of lost wages, earning capacity or physical impairment during the recovery period. Therefore, accrued disability indemnity is included in section 4650. Moreover, the needs addressed by section 4650 are even greater where periodic disability indemnity has accrued during the recovery period and has not been paid. B. Section 4650 Does Not Include Commuted Future Indemnity Payments The WCAB en banc decided, in part, that section 4650 does not apply to lump sums which are commuted future periodic indemnity payments. Tower distinguishes accrued periodic indemnity payments from future periodic indemnity payments accelerated by commutation into a lump sum. Rivera argues subdivision (d) applies to any indemnity payment. Rivera also argues periodic indemnity payments that are commuted to a lump sum are based on need as set forth in section 5100, and are intended by the Legislature to be paid promptly under section 4650. We agree with the WCAB and Tower that section 4650 does not apply to lump sums that are commuted future periodic indemnity payments. The needs addressed by the Legislature in sections 4650 and 5100 are different. As stated previously, section 4650 is intended to provide a continuous flow of temporary and permanent disability indemnity during the recovery period. In contrast, lump sum commuted future indemnity payments under section 5100 involve the ability to live without the continuous flow of periodic indemnity payments.[14] Finally, subdivision (d) is limited to indemnity payments that are required by section 4650, which are periodic and accrued indemnity payments. DISPOSITION Section 4650 applies to accrued as well as periodic indemnity payments. Section 4650, however, does not apply to future indemnity payments that are commuted into a lump sum. The decision of the WCAB is annulled and the matter is remanded for further proceedings consistent with this opinion. We concur: COOPER, P.J., and RUBIN, J. NOTES [1] Labor Code section 4650, subdivision (d), in relevant part states: "If any indemnity payment is not made timely as required by this section, the amount of the late payment shall be increased 10 percent and shall be paid, without application, to the employee...." All further reference to statute is to the Labor Code. [2] Section 5814 stated in part: "When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 percent. The question of delay and the reasonableness of the cause therefor shall be determined by the appeals board in accordance with the facts." Unreasonable delay or refusal occurs when there is no genuine doubt benefits are owed, from a medical or legal standpoint. (Kerley v. Workmen's Comp.App. Bd. (1971) 4 Cal.3d 223, 93 Cal.Rptr. 192, 481 P.2d 200; Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815, 153 Cal.Rptr. 590, 591 P.2d 1242.) [3] Section 4650, subdivision (a), states: "If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid, unless liability for the injury is earlier denied." Subdivision (b) states: "If the injury causes permanent disability, the first payment shall be made within 14 days after the date of the last payment of temporary disability indemnity. Where the extent of permanent disability cannot be determined at the date of last payment of temporary disability indemnity, the employer nevertheless shall commence the timely payment required by this subdivision and shall continue to make these payments until the employer's reasonable estimate of permanent disability indemnity due has been paid, and if the amount of permanent disability indemnity due has been determined until that amount has been paid." Subdivision (c) provides: "Payment of temporary or permanent disability indemnity subsequent to the first payment shall be made as due every two weeks on the day designated with the first payment." [4] Section 4659, subdivision (a), provides in part: "If the permanent disability is at least 70 percent but less than 100 percent, 1.5 percent of the average weekly earnings for each 1 percent of disability in excess of 60 percent is to be paid during the remainder of life, after payment for the maximum number of weeks specified in Section 4658 has been made." [5] Section 5800 states in part: "All awards of the appeals board either for the payment of compensation or for the payment of death benefits, shall carry interest at the same rate as judgments in civil actions on all due and unpaid payments from the date of the making and filing of said award. Such interest shall run from the date of making and filing of an award, as to amounts which by the terms of the award are payable forthwith. As to amounts which under the terms of the award subsequently become due in installments or otherwise, such interest shall run from the date when each such amount becomes due and payable." [6] Presumably, the parties were referring to the increased compensation provided by section 5814. [7] Section 5100 states: "At the time of making its award, or at any time thereafter, the appeals board, on its own motion either upon notice, or upon application of either party with due notice to the other, may commute the compensation payable under this division to a lump sum and order it to be paid forthwith or at some future time if any of the following conditions appear: (a) That such commutation is necessary for the protection of the person entitled thereto, or for the best interest of the applicant. In determining what is in the best interest of the applicant, the appeals board shall consider the general financial condition of the applicant, including but not limited to, the applicant's ability to live without periodic indemnity payments and to discharge debts incurred prior to the date of injury. (b) That commutation will avoid inequity and will not cause undue expense or hardship to the applicant. (c) That the employer has sold or otherwise disposed of the greater part of his assets or is about to do so. (d) That the employer is not a resident of this state." [8] See Rivera v. Tower Staffing Solutions (2002) 67 Cal.Comp.Cases 1473. [9] In Gangwish, the Court of Appeal held that section 4650 applied to subsequent payments of permanent disability indemnity, but not to the initial payment, when there is no temporary disability indemnity. The WCAB quoted from Gangwish at page 1293, 108 Cal.Rptr.2d 1: "... the purpose of enacting the changes to section 4650 was to promote prompt payment of benefits and certainty of timing." The WCAB also quoted from Gangwish at page 1294, 108 Cal.Rptr.2d 1: "[F]ormer section 4651 provided that payments of [temporary disability] or [permanent disability] were to be made not less frequently than twice each month, except by order of the WCAB. This chronology of benefits was essentially recodified in section 4650, subdivision (c).... [This] is further substantiation of the Legislature's purpose, since it provides for payment of continuing [temporary disability] or [permanent disability] at regular intervals." [10] The WCAB also determined that section 4650 did not apply to death benefit indemnity payments reduced to a lump sum by a compromise and release settlement agreement in the companion case of Crump v. Los Angeles Unified School District (2002) 67 Cal.Comp.Cases 1473. While this issue is not before this court, a compromise and release settlement may include payment for future indemnity or other benefits such as medical costs. [11] Section 5101, which only establishes how lump sums of commuted temporary and permanent disability indemnity are determined, states: "The amount of the lump sum shall be determined as follows: (a) If the injury causes temporary disability, the appeals board shall estimate the probable duration thereof and the probable amount of the temporary disability payments therefor, in accordance with Chapter 2 of Part 2 of this division, and shall fix the lump sum at the amount so determined. (b) If the injury causes permanent disability or death, the appeals board shall fix the total amount of the permanent disability payment or death benefit payable therefor in accordance with Chapter 2 of Part 2 of this division, and shall estimate the present value thereof, assuming interest at the rate of 3 percent per annum and disregarding the probability of the beneficiary's death in all cases except where the percentage of permanent disability is such as to entitle the beneficiary to a life pension, and then taking into consideration the probability of the beneficiary's death only in estimating the present value of such life pension." [12] See Ralphs Grocery Co. v. Workers' Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 828, 45 Cal.Rptr.2d 197 (Ralphs Grocery). [13] Tower's letters that accompanied payment did not specify when the permanent disability indemnity owed for the period May 1, 2000, to February 8, 2001, was paid. [14] See footnote 7, ante.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266203/	545 Pa. 445 (1996) 681 A.2d 1266 COMMONWEALTH of Pennsylvania, Appellee, v. Richard H. JENNER, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Craig A. WELSHANS, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Raymond KING, Appellant. Supreme Court of Pennsylvania. Argued January 26, 1995. Decided July 30, 1996. 447 Robert B. McGuinness, Towanda, for Richard H. Jenner. George E. Lepley, Jr., Williamsport, for Craig A. Welshans. Mark F. Morrison, Uniontown, for Raymond King. Robert G. Fleury, Troy, Stephen G. Downs, Towanda, Thomas A. Marino, Williamsport, Kenneth A. Osokow, Philadelphia, Bradley S. Hillman, Pittsburgh, and Ralph C. Warman, Uniontown and John A. Kopas, III, Fairchance, for the Commonwealth. 448 Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ. Nos. 71 M.D. Appeal Dkt., 49 W.D. Appeal Dkt. 1994. Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ. No. 72 M.D. Appeal Dkt. 1994. OPINION OF THE COURT CASTILLE, Justice. Each of the appellants in this matter was cited for a traffic violation for driving a motor vehicle on the public roads of Pennsylvania while their driver's licenses were suspended. Each of the appellants' licenses had been suspended at the time of the motor vehicle offense for a non-Driving Under the Influence of Alcohol or Controlled Substances related offense (hereinafter referred to as "non-DUI-related offense").[1] Each appellant also had been convicted and had his license suspended 449 for a DUI-related offense at the time he was stopped.[2] The issue herein is whether the DUI-related license suspension was in effect at the same time each appellant's non-DUI license suspension was in effect, so as to subject him to the sentencing enhancement provisions of 75 Pa.C.S. § 1543(b),[3] or, alternatively, whether the DUI-related suspension period became effective only after the expiration of the earlier non-DUI suspension period. For the reasons expressed herein, we affirm the Superior Court's affirmance of the trial courts' judgments of sentence applying the sentencing enhancement provisions of the Motor Vehicle Code to appellants' sentences. COMMONWEALTH v. JENNER The evidence related to the sentence at issue is that appellant Richard Jenner was stopped while operating a motor vehicle on October 7, 1991, for travelling 57 mph in a 40 mph speed zone. At the time he was stopped, Jenner was unable to produce a driver's license upon the state trooper's request. Jenner told the trooper that his license had been suspended as a result of a prior conviction for driving under the influence of alcohol or a controlled substance. The trooper subsequently obtained a certified copy of Jenner's driving record, which revealed that Jenner's license had been surrendered to the Department of Transportation on 450 June 25, 1982, and was currently suspended as a result of numerous DUI-related and non-DUI-related offenses. With respect to the DUI-related suspension about which Jenner had advised the trooper, Jenner had pleaded guilty to driving under the influence on November 16, 1989, and received notice of the DUI-related driver's license suspension on April 4, 1990. The trial court in that DUI-related suspension case imposed a two-year driver's license suspension which was to become effective March 1, 1994, at the conclusion of the suspension period for the prior non-DUI offenses, i.e. consecutive to the other earlier suspension periods imposed. Based upon this evidence, Jenner was convicted in a summary trial of driving while his license was under suspension or revoked for a DUI-related offense, fined $1,000.00 and sentenced to a mandatory ninety days imprisonment under 75 Pa.C.S. § 1543(b). Jenner appealed the summary judgment and was convicted in a trial de novo in the Bradford County Court of Common Pleas. Post verdict motions were denied and the same sentence was imposed. Jenner now appeals from the order and memorandum opinion of the Superior Court affirming the judgment of sentence. COMMONWEALTH v. WELSHANS Appellant Craig A. Welshans was involved in a two vehicle accident at the intersection of State Routes 44 and 973 on May 31, 1991, when his motorcycle rear-ended a United Parcel Service Truck. Welshans was taken to the hospital, where he refused a police request that he submit to a blood alcohol test. A medical blood alcohol test taken shortly after the accident by the hospital to render treatment, however, revealed that Welshans' blood alcohol content was .16%. A certified copy of Welshans' driving record revealed that Welshans' driver's license had been suspended by the Department of Transportation beginning July 21, 1980. At the time of this accident, his license had been suspended for driving while his license was suspended as a result of a non-DUI offense. His driving record also showed that subsequent to his suspension for driving while his license was suspended for 451 a non-DUI offense, he was also subject to another suspension as a result of a DUI-related conviction. The DUI-related suspension was to take effect on December 21, 1992, after the periods of suspension for earlier non-DUI-related offenses had expired, i.e. consecutive to the non-DUI-related license suspension periods. Based on this evidence, the trial court found that Welshans was driving while his license was suspended for a DUI-related offense even though the actual suspension was not scheduled to begin being served until 1992. Nonetheless, Welshans was convicted in the Lycoming County Court of Common Pleas of driving under the influence of alcohol or controlled substance and driving while his license had been suspended for a DUI-related offense. The trial court sentenced Welshans to 60 days to 23 months imprisonment and a fine of $800.00 for the new DUI-related conviction, and 180 days imprisonment and a $1,000.00 fine on the conviction for driving while his license was suspended for a prior DUI-related offense under 75 Pa.C.S. § 1543(b). Welshans now appeals from the order of the Superior Court affirming the judgment of sentence.[4] COMMONWEALTH v. KING Appellant Raymond King was stopped on September 6, 1991, for travelling 78 mph in a 55 mph speed zone. A blood alcohol test was performed shortly thereafter and King's blood alcohol content was determined to be .213%. A certified copy of his driving record revealed that King tendered his license to the Department of Transportation on March 31, 1982. The record further revealed that at the time he was stopped for speeding in this matter, King's license had been suspended for two years as a habitual offender due to a prior conviction of driving while his license was under suspension for a non-DUI-related offense. King's record also revealed that his license had been suspended for fifteen days effective July 30, 1993, for reckless driving, for five years effective August 14, 1993, as a 452 habitual offender for driving while his license was suspended and for twenty days effective August 14, 1989, for leaving the scene of an accident. King's record also reflected that he had been convicted of a prior DUI-related offense for which a two year license suspension was scheduled to become effective on September 3, 1998, following the completion of the earlier periods of suspension previously imposed for the non-DUI offenses. As of the date of the underlying incident, King would not become eligible to reapply for a driver's license until October 3, 2004. Based on this evidence, on December 7, 1992, King pleaded guilty to driving under the influence of alcohol or controlled substance,[5] exceeding the maximum speed limit[6] and driving while his license was under suspension for a prior DUI-related conviction.[7] The Fayette County Court of Common Pleas sentenced King to 30 days to six months imprisonment, a one year license suspension and a $500.00 fine for driving under the influence, and to 90 days imprisonment and a $1,000.00 fine for driving while his license was under suspension for a prior DUI-related offense under 75 Pa.C.S. § 1543(b). The Superior Court affirmed the trial court's judgment of sentence and King now appeals to this Court. DISCUSSION Section 1543(b) of the Motor Vehicle Code, as previously stated in footnote 3, provides: Any person who drives a motor vehicle on any highway or traffic-way of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of 453 $1,000.00 and to undergo imprisonment for a period of not less than 90 days. 75 Pa.C.S. § 1543(b) (emphasis added). Jenner, Welshans and King all argue that they should not have been sentenced under the enhanced sentencing provisions of § 1543(b) of the Motor Vehicle Code because their DUI-related license suspensions were not in effect at the time they were stopped and, therefore, they argue that they can only be sentenced under § 1543(a) (pertaining to driving while license is suspended or revoked for a non-DUI-related offense), which does not provide for mandatory incarceration or fines.[8] Appellants' argument, however, ignores several other pertinent sections of the Motor Vehicle Code which, when read in pari materia, clearly demonstrate that a second or subsequent suspension becomes effective immediately and serves to extend the period of suspension rather than to become effective consecutive to the previous suspension's expiration. Sections 1544(b)-(d) of the Motor Vehicle Code provide in pertinent part: (b) Additional suspension. When any person's record shows an additional suspension of the operating privilege assessed during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation for the appropriate period and the person shall be so notified in writing. (c) Revocation during suspension. When any person's record shows an additional conviction calling for revocation of the operating privilege during a period of suspension, the department shall add the appropriate revocation onto the period of suspension and the person shall be so notified in writing. (d) Revocation during revocation. When any person's record shows a conviction calling for revocation of the 454 operating privilege during a period of revocation, the department shall extend the existing period of revocation for the appropriate period and the person shall be so notified in writing. 75 Pa.C.S. § 1544(b)-(d) (emphasis added). As each of the sections indicates, the subsequent suspensions or revocations serve only to extend or add to the suspension and/or revocation then in effect. The suspensions or revocations are not tolled until preceding earlier suspensions expire, since such an interpretation would allow a suspended or revoked driver to avoid the enhanced penalties at issue. To phrase this in another way, two or more suspensions or revocations are not to be imposed consecutively or seriatim to each suspension, but subsequent suspensions or revocations simply extend the length of the time the license is to be suspended or revoked. This finding is further supported by the provision of the Motor Vehicle Code dealing with the surrender of licenses and the commencement of the period of revocation or suspension. Section 1541(a) of the Motor Vehicle Code provides: The period of revocation or suspension of the operating privilege shall commence as provided for in section 1540 (relating to surrender of license). No credit toward the revocation or suspension shall be earned until the driver's license is surrendered to the department, the court or the district attorney, as the case may be. A non resident licensed driver or an unlicensed driver shall submit an acknowledgment of suspension or revocation to the department in lieu of a driver's license. The department may, upon the request of the person whose license is suspended, delay the commencement of the period of suspension for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license has been suspended. 75 Pa.C.S. § 1541(a). Section 1540(a) of the Motor Vehicle Code, (governing the surrender of licenses), provides in pertinent part: (a) Conviction of offense. Upon conviction by a court of competent jurisdiction for any offense which calls for mandatory 455 suspension in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver's license then held by the defendant and shall forward the driver's license together with a record of the conviction to the department. The suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.[9] 75 Pa.C.S. § 1540(a) (emphasis added). In the present cases, appellants had previously surrendered their licenses to the department as required under § 1540(a), which does not require that the license be surrendered subsequent to notification in order for the suspension to be effective 456 prior to the effective date. Therefore, the DUI-related revocation or suspension became effective immediately upon receipt of the record of the conviction by the department under § 1532(b)(3), which provides that operating privileges are to be suspended by the Department upon receipt of a certified copy of the driver's conviction for driving under the influence of alcohol.[10] Because appellants' licenses were suspended as the result of convictions in accordance with § 1543(b), their periods of 457 suspension became effective immediately upon receipt of the certified conviction by the department under § 1540(a) and the "effective date" is only relevant for purposes of determining when appellants will be eligible to have their driving privileges reinstated or to reapply for revoked licenses. Commonwealth v. MacSherry, 371 Pa.Super. 164, 171, 537 A.2d 871, 875 (1988) (failure to surrender driver's license does not forestall suspension for penalty purposes; section 1541(a) simply prescribes the method of computation by which to determine the termination of the suspension period). Clearly the legislature intended to apply the penalties for driving while under a license suspension to drivers who, as a result of their noncompliance with the statute, were not yet eligible to receive credit toward that period of suspension. Id.[11] Appellants' second claim is that it is a violation of the equal protection clause to apply the enhanced penalty provisions 458 of § 1543(b) to drivers whose DUI-related suspensions will not begin to run until some point in the future. Legislation enacted by the General Assembly carries a strong presumption of constitutionality, and the party challenging the constitutionality of any statute bears the heavy burden of demonstrating that the statute is clearly, palpably and plainly unconstitutional. Commonwealth v. Burnsworth, 543 Pa. 18, 24, 669 A.2d 883, 886 (1995). Under an equal protection analysis, a classification which does not impermissibly interfere with a fundamental right or disadvantageously affect a suspect class will be upheld as long as it passes a rational relationship test. Id. at 30, 669 A.2d at 889. This Court has often stated that driving is a privilege, not a fundamental right. Commonwealth v. Zimmick, 539 Pa. 548, 559, 653 A.2d 1217, 1222-23 (1995); Commonwealth v. Yarger, 538 Pa. 329, 335, 648 A.2d 529, 531 (1994); Commonwealth v. Funk, 323 Pa. 390, 394, 186 A. 65, 67-68 (1936). Moreover, § 1543(b) does not burden a suspect class. Therefore, in order to prevail on an equal protection claim, the person claiming the violation must establish that the asserted classification and disparate treatment of certain drivers does not bear a rational relationship to a legitimate state interest. Commonwealth v. Hicks, 502 Pa. 344, 348, 466 A.2d 613, 615 (1983), appeal dismissed, 465 U.S. 1015, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). Because police powers are extremely broad, especially in relation to the safety of those who use the Commonwealth's highways, this Court has held that legislation enacted for the purpose of protecting those who travel the roads of this Commonwealth from intoxicated drivers does not violate equal protection as long as the legislation does not impinge upon a suspect class or upon a fundamental right. Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-21, 61 L.Ed.2d 321 (1979); Commonwealth v. Mikulan, 504 Pa. 244, 261, 470 A.2d 1339, 1347 (1983). The legislature's decision to punish persons with mandatory prison sentences who continue to drive prior to the expiration of DUI-related license suspensions 459 is rationally related to the state interest of protecting those who use the state's highways by keeping intoxicated drivers off of those highways. Mackey, supra; Mikulan, supra. Therefore, the application of § 1543(b) from the date of the DUI conviction resulting in a suspension until the date on which driving privileges are restored withstands equal protection scrutiny. Finally, appellants argue that the application of the mandatory sentencing provisions of § 1543(b) prior to the effective date on the DUI-related suspension notification fails to give drivers with outstanding non-DUI-related suspensions proper notice that they are subject to the enhanced penalties of the statute prior to the effective date of the DUI-suspension. However, as discussed above, a careful reading of the Motor Vehicle Code makes it clear that appellants were under DUI-related suspensions from the time the Department of Transportation received notice of their DUI convictions. Therefore, although the period of revocation or suspension does not begin to run for computation purposes until the effective date, appellants were subject to the penalty provisions applicable for driving while their licenses were suspended as a result of a DUI-related conviction. To hold otherwise would create the absurd result of allowing drivers whose licenses have been suspended as a result of a DUI conviction to avoid the enhanced consequences of continuing to drive until some point in the future simply because they have flagrantly disregarded the Motor Vehicle Code in the past. In construing statutes, we assume that the legislature did not intend an absurd result. 1 Pa.C.S. § 1922(1). CONCLUSION The purpose of § 1543(b) is to prevent drivers who have been convicted of driving under the influence from operating motor vehicles on the public roads of the Commonwealth by enhancing the penalties for recidivist violators. If we were to accept the argument advanced by appellants, we would be permitting appellants to avoid the mandatory sentencing provisions imposed on drunk drivers for disregarding a suspension 460 of driving privileges simply because appellants have a history of violating the Motor Vehicle Code which has resulted in long term license suspensions which have not expired at the time of their DUI violations or their subsequent violations of the Motor Vehicle Code. For the foregoing reasons, we hold that once a driver is notified that his license is suspended as a result of a conviction for driving under the influence under 75 Pa.C.S. § 3731, he is subject to the enhanced sentencing provisions of § 1543(b) for the duration of any prior periods of suspension or revocation until the completion of the DUI-related suspension. The effective dates provided by the Department of Transportation in such cases are simply for the purpose of determining when the DUI-related suspension is completed. The judgments of sentence are affirmed. ZAPPALA and CAPPY, JJ., concur in the result. NIGRO and NEWMAN, JJ., join only in Commonwealth v. Welshans, 72 Middle District Appeal Docket 1994. MONTEMURO, Senior Justice, did not participate in the decision of the cases in 71 Middle District Appeal Docket 1994 and 49 Western District Appeal Docket 1994. NOTES [1] § 3731. Driving under the influence of alcohol or controlled substance (a) offense defined. A person shall not drive, operate or be in actual physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving; (2) while under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving; (3) while under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; (4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; or (5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person's breath, blood or urine, which sample is: (i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle; or (ii) if the circumstances of the incident prevent collecting the sample within three hours, obtained within a reasonable additional time after the person drove, operated or was in actual physical control of the vehicle. [2] Jenner's license was suspended under a five-year habitual offender revocation as a result of a conviction for driving while his license was suspended or revoked. Welshans' license was suspended for two years as the result of a conviction for driving while his license was suspended or revoked. King's license was suspended under a two year habitual offender revocation as a result of a conviction for driving while his license was suspended or revoked. [3] Any person who drives a motor vehicle on any highway or traffic-way of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000.00 and to undergo imprisonment for a period of not less than 90 days. 75 Pa.C.S. § 1543(b) (emphasis added). [4] Appellant Welshans also challenged his sentence under 75 Pa.C.S. § 6503, providing for enhanced penalties for a second or subsequent DUI conviction. However, allocatur was not granted on this issue. [5] 75 Pa.C.S. § 3731(a). [6] 75 Pa.C.S. § 3362(a)(2). [7] 75 Pa.C.S. § 1543(b). [8] Offense defined. Except as provided in subsection (b), any person who drives a motor vehicle on any highway or traffic-way of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege had been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200. 75 Pa.C.S. § 1543(a). [9] § 1532. Revocation or suspension of operating privilege. (a) Revocation. The department shall revoke the operating privilege of any driver for one year upon receiving a certified record of the driver's conviction of or an adjudication of delinquency based on any of the following offenses: (1) Any felony in the commission of which a court determines that a vehicle was essentially involved. (2) Any violation of section 3732 (relating to homicide by vehicle while driving under the influence). (3) Any violation of the following provisions: Section 3732 (relating to homicide by vehicle). Section 3742 (relating to accidents involving death or personal injury). Section 7102(b) (relating to removal or falsification of identification number). Section 7103(b) (relating to dealing in vehicles with removed or falsified numbers). Section 7111 (relating to dealing in titles and plates for stolen vehicles). Section 7121 (relating to false application for certificate of title or registration). Section 7122 (relating to altered, forged or counterfeit documents and plates). (b). Suspension. (1) The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of the driver's conviction of or an adjudication of delinquency based on any offense under the following provisions: Section 3367 (relating to racing on highways). Section 3733 (relating to fleeing or attempting to elude police officer). Section 3734 (relating to driving without lights to avoid identification or arrest). Section 3736 (relating to reckless driving). Section 3743 (relating to accidents involving damage to attended vehicle or property). (2) The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of the driver's conviction of a subsequent offense under the following provisions: Section 1501(a) (relating to drivers required to be licensed). Section 1543 (relating to driving while operation privilege is suspended or revoked). (3) The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver's conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) or an adjudication of delinquency based on section 3731. The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of a consent decree granted under 42 Pa.C.S. Ch. 63 (relating to juvenile matters) based on section 3731. (4) This subsection does not effect any additional period of revocation of the operating privileges of a driver who receives an additional period of revocation for a second or subsequent violation of section 1543. [10] Appellants argue that their DUI-related suspensions do not become effective until the "effective date" set by the Department. That position would arguably be correct if appellants' licenses had been suspended under Section 1540(b), which provides: (b) Suspension, revocation or disqualification of operating privilege. Upon the suspension or revocation of the operating privilege or the disqualification of the commercial operating privilege of any person by the department, the department shall forthwith notify the person in writing at the address of record to surrender his driver's license to the department for the term of the suspension, revocation or disqualification. The suspension, revocation or disqualification shall be effective upon a date determined by the department or the date of the surrender of the license to the department if that date is subsequent to the department's notice to surrender the license, whichever occurs first. . . . 75 Pa.C.S. § 1540(b) (emphasis added). However, because appellants' licenses were suspended as the result of DUI convictions, their licenses were revoked under Section 1540(a), which does not provide that the suspensions are effective on the "effective date" set by the Department, but provides for immediate suspension on turning over the license (or earlier if the court decrees). [11] A recent amendment to § 1543(b) confirms that the legislature intended that section to apply during all periods of suspension accrued prior to a DUI-related suspension. The following subsection was added to 1543(b) effective September 1, 1995: (2) This section shall apply to any person against whom one of these suspensions has been imposed whether the person is currently serving this suspension or whether the effective date of suspension has been deferred under any of the provisions of section 1544 (relating to additional period of suspension or revocation). This provision shall also apply until the person has had the operating privilege restored. This subsection shall also apply to any revocation imposed pursuant to section 1542 (relating to revocation of habitual offender's license) if any of the enumerated offenses was for a violation of section 3731. Prior to a vote in the House, one of the authors of the amendment stated that the amendment, "codifies some existing language or some existing court decisions in the first section." Mr. Masland, March 22, 1994, Legislative Journal of the House at 608. Thus, the amendment was merely a clarification of the state of the law as it existed at the time of appellants' violations.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266018/	236 P.3d 73 (2010) 2010 OK 23 In the Matter of the REINSTATEMENT OF Gerald Francis MEEK, to Membership in the Oklahoma Bar Association and the Roll of Attorneys. SCBD No. 5534. Supreme Court of Oklahoma. March 9, 2010. ORDER ¶ 1 Petitioner, Gerald Francis Meek (Meek), was admitted to the Oklahoma Bar Association (OBA) on April 20, 2001. He currently lives and practices in North Carolina. Meek is admitted to the practice of law in North Carolina[1]. He has continuously practiced law in North Carolina since March 1998. ¶ 2 Meek was administratively suspended from the OBA in 2004 for failing to pay dues and noncompliance with Mandatory Continuing Legal Education. His name was stricken from the Roll of Attorneys on September 15, 2004. On June 19, 2009, Meek petitioned this Court for reinstatement to the OBA pursuant to Rule 11.1, of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (2001). A hearing was held before the Professional Responsibility Tribunal (Tribunal) on September 3, 2009. The Tribunal, along with the OBA, jointly recommend Meek's reinstatement. ¶ 3 Upon careful consideration of Meek's petition, this Court finds that the record demonstrates by clear and convincing evidence, the following: 1) Meek has satisfied the procedural requirements for reinstatement. He has complied with the notice requirements of Rules 11.1(a) and 11.3(b), RGDP; and no objections to his reinstatement were received. *74 2) Meek has not filed any applications for reinstatement prior to this proceeding. 3) Meek possesses the good moral character entitling him to be readmitted to the OBA. 4) Meek has not engaged in the unauthorized practice of law in the State of Oklahoma during his suspension. 5) Meek has remained abreast of the current legal developments and possesses the competency and learning in the law required for reinstatement to the OBA. 6) Meek has established his good moral character which would entitle him to be reinstated to the OBA. 7) The OBA has incurred costs in the amount of $821.22 for the investigation and processing of the application in this case. ¶ 4 IT IS THEREFORE ORDERED, that Gerald F. Meek be reinstated to membership in the OBA and his name be reinstated to the Roll of Attorneys licensed to practice law in the State of Oklahoma. ¶ 5 IT IS FURTHER ORDERED that such reinstatement is conditioned upon Meek's payment to the OBA for the costs of this proceeding in the amount of $821.22. The $275.00 bar dues that Meek paid in anticipation of being reinstated in 2009 shall be applied to his 2010 dues now due. These amounts are ORDERED to be paid within ninety days from the date this Order is filed with the Clerk of this Court. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 8th day of March, 2010. ALL JUSTICES CONCUR. NOTES [1] He was previously admitted to practice in South Carolina, Georgia, Texas, and Arkansas but was administratively suspended for nonpayment of dues.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266226/	452 Pa. Superior Ct. 194 (1996) 681 A.2d 775 Kenneth M. MILLER, Appellant, v. Jennifer L. STEINBACH, Appellee. Superior Court of Pennsylvania. Argued May 1, 1996. Filed July 17, 1996. 196 Leonard A. Grence, Butler, for appellant. J. Stevenson Suess, Butler, for appellee. Before POPOVICH, EAKIN and HESTER, JJ. POPOVICH, Judge: This case involves an appeal from the September 27, 1995 order of the Court of Common Pleas of Butler County denying appellant's request to reconsider an order entered in the Court of Common Pleas of Centre County, whereby he was ordered to pay the full cost of his psychological evaluation and half the cost of his daughter's psychological evaluation needed for a determination regarding partial custody. We find that the order in question is interlocutory, and, accordingly, we quash this appeal. The record reflects the occurrence of the following events: Appellant filed a complaint seeking partial custody and visitation rights to his minor child. In the complaint, he alleged that he was the natural father of the minor child born out of wed-lock to Jennifer L. Steinbach. The child and Ms. Steinbach reside with her present husband, Dean Steinbach. To resolve appellant's claims regarding custody, the Court of Common Pleas of Centre County held a hearing on July 6, 1994. Prior to the hearing, Ms. Steinbach filed a petition for psychological evaluations. Pursuant to Pa.R.C.P. 1915.8, the court approved this petition and ordered appellant to pay for the full cost of his psychological evaluation and half the cost of his daughter's psychological evaluation.[1] The court then awarded appellant visitation rights for his daughter, and indicated 197 that it would not make a determination regarding partial custody until the psychological evaluations were received and a full hearing was held. On September 27, 1995, appellant filed in the Court of Common Pleas of Butler County a petition for special relief/reconsideration of the Court of Common Pleas of Centre County's order requiring him to pay for the psychological evaluations. After speaking on the telephone with the Judge from Centre County, the Judge from Butler County denied appellant's petition. This appeal followed and appellant was granted the right to proceed in forma pauperis. Intertwined with appellant's request that we review the court's order requiring him to pay for the psychological evaluations is the appealability of the order in question. We must consider appellee's contention that the lower court's order is interlocutory and not immediately appealable. "It is clear that an appeal will lie only from a final order unless an appeal is otherwise permitted by statute or rule of court." Schwartz v. Schwartz, 411 Pa.Super. 282, 601 A.2d 349, 351 (1992) (citations omitted). "An order is generally not a final order unless it serves to put the litigant out-of-court either by ending the litigation or disposing of the case entirely." Grove North America v. Arrow Lift, 421 Pa.Super. 12, 617 A.2d 369, 372 (1992) (citations omitted). The order in this case requiring appellant to pay for the psychological evaluations does not end the litigation or dispose of the entire case. The partial custody action remains unfinished because the lower court has not made a determination regarding custody, that is, appellant has neither been granted nor denied partial custody of his minor child. Rather, the order in question merely directed appellant to submit to and pay for psychological evaluations pursuant to Pa.R.C.P. 1915.8(a) and (e). Under Rule 1915.8, a court may order the child or a party to submit to an evaluation by an appropriate expert and the court may assess the cost of the examination to any or all of 198 the parties. The Comment to Rule 1915.8 indicates the following: In order to make a proper determination in a child custody case, the court often requires information which can only be supplied by an expert evaluation of the parties and the subject child. The rule also provides a range of sanctions which the court may impose for failure to comply with an order directing evaluations, and provides that a petition for contempt for failure to comply with an order entered upon this rule is to be treated in an expedited fashion. Here, appellant's appeal is premature. At this point, he has not disobeyed the lower court's order directing him to pay for the psychological evaluations, he has not been sanctioned in any manner by the lower court, and, more importantly, he has not been denied partial custody of his daughter. The lower court's order does not effectively put him out of court. See Grove North America, supra. Accordingly, the order is interlocutory and not a final order. Under Pennsylvania law, an appeal may be taken from an interlocutory order as of right (Pa.R.A.P.311), by permission (Pa.R.A.P. 313, 1301 et seq.), or from a collateral order (Pa. R.A.P.313). After a careful examination of Pa.R.A.P. 311, we conclude that appellant's appeal of the interlocutory order may not be taken as of right.[2] We further conclude that appellant's appeal may not be taken by permission. "[A]n interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules of Appellate Procedure." Patton v. Hanover Insurance Co., 417 Pa.Super. 351, 612 A.2d 517, 518 (1992). See Pa.R.A.P. 312; Pa.R.A.P. 1301 et seq. Here, appellant has failed to invoke the procedure outlined in Chapter 13. Consequently, the order is not appealable by permission under the provisions of Chapter 13. 199 We further find that appellant's appeal does not meet the requirements for the collateral order doctrine. See Pa. R.A.P. 313. Under Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), an order which is separable from and collateral to a cause of action may become appealable under certain circumstances. Under Cohen, an order is considered "final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost." Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701, 704 (1991) (citation omitted). Under this test, we find that the order issued by the lower court was not appealable. While appellant's right is extremely important and deserves consideration, we do not find that the order was separable and collateral to the main cause of action. Appellant filed a petition for partial custody of his child. The court ordered that he undergo and pay for psychological evaluations before the court would resolve the custody issue. In effect, the issue concerning the psychological evaluations is intertwined with the issue of whether appellant should be granted partial custody of his minor child. In addition, we find that the question presented in appellant's appeal is not such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Appellant's argument that he was denied due process by the lower court's order that he pay for the psychological evaluations can be presented on appeal once the lower court has issued a final order on the matter. Under these circumstances, we hold that the lower court's interlocutory order is not reviewable until there has been a final disposition of the action. See Schwartz, supra Appeal quashed. NOTES [1] Jennifer L. Steinbach, the child's mother and the appellee in this matter, was ordered to pay the full cost of her psychological evaluation, the full cost of her husband's psychological evaluation and half the cost of her daughter's psychological evaluation. [2] Rule 311 lists the interlocutory orders to which a right of appeal attaches. The right to appeal from an order directing a party to pay for psychological evaluations in the context of a custody action is not among those orders listed in Rule 311. Accordingly, appellant may not appeal as of right from the order at issue.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266110/	461 F.Supp. 894 (1978) Kyriaki Cleo KYRIAZI, Plaintiff, v. WESTERN ELECTRIC COMPANY et al., Defendants. Civ. A. No. 475-73. United States District Court, D. New Jersey. October 30, 1978. 895 896 897 898 Vladeck, Elias, Vladeck & Lewis by Judith P. Vladeck, Margaret M. Young, New York City, for plaintiff. Pitney, Hardin & Kipp by Edward P. Lynch, S. Joseph Fortunato, Barry A. Guryan, Claire B. Dubin, Morristown, N. J., for defendants. OPINION STERN, District Judge. I. INTRODUCTION AND SUMMARY OF COURT'S FINDINGS This is a class action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The named plaintiff, Kyriaki Cleo Kyriazi ("Kyriazi"), charges defendant Western Electric Co. ("Western") with across-the-board sex-based discrimination with respect to virtually every condition of employment at its Kearny plant. Kyriazi also alleges that she herself was the victim of sex discrimination at Western in a number of respects. The issue of liability having been severed from that of damages, the case was tried on the liability issue alone commencing July 7, 1977 and concluding on December 1, 1977. The Court, having heard the testimony at trial and having reviewed the voluminous exhibits submitted by the parties, finds that Western systematically denied women the employment opportunities it afforded men in the areas of hiring, promotion, and participation in training programs; that it slotted women initially into the lower-paying "women's jobs" and laid them off in disproportionate numbers in times of economic stress. This was proved through statistical evidence, never rebutted by the defendant, and through other evidence of purposeful discrimination. In addition, the Court finds that Kyriazi is an adequate representative of the class, and that, as such, she may appropriately challenge Western's employment practices. Finally, the Court, having considered Kyriazi's individual case, finds that she was underrated, underpaid, and denied promotional opportunities by Western because of her sex; that she was harassed by her male co-workers; and that she was terminated on account of her sex and in retaliation for having lodged a complaint of sex discrimination. II. PRELIMINARY ISSUES A. Jurisdiction The Court has jurisdiction over this action under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1343(1). Timely charges of discrimination were lodged with the New Jersey Department on Civil Rights and with the EEOC, which found reasonable cause to believe there was discrimination against Kyriazi and all women employed at Western's Kearny plant. (P-161). Pendent jurisdiction exists over the tort claims against the individual defendants.[1] 899 B. Parties Plaintiff Kyriazi was hired by Western in 1965 as a professional in the Information Systems (computer) field at Western's New York Headquarters. In February 1966 she was transferred into the Industrial Engineering organization at Western's Kearny plant. She was promoted to the position of Industrial Engineer in May 1967 and transferred in February 1969 into the Information Systems organization at Kearny. She was terminated by Western on November 19, 1971. Kyriazi claims that (1) Western denied her promotions and gave her lower ratings and a lower salary than she deserved on account of her sex, in violation of 42 U.S.C. § 2000e-2(a); (2) that she was terminated by Western on account of her sex, in violation of 42 U.S.C. § 2000e-2(a); (3) that she was terminated by Western in retaliation for having filed formal charges against it, in violation of 42 U.S.C. § 2000e-3(a); (4) that Western and the five individual defendants conspired to deprive her of federally-protected rights, in violation of 42 U.S.C. § 1985(3); and (5) that the five individual defendants are liable under state law for having tortiously interfered with her employment at Western. Defendant Western, an "employer" within the meaning of 42 U.S.C. § 2000e(b), is engaged in the manufacture of telephone equipment. Western's Kearny Works Organization consists of a main facility, the Kearny plant, and a satellite location, the Clark Shops. The main facility manufactures exchange area and video pair cable, key equipment, PBX's switchboards, amplifiers for underseas cable, and transmission apparatus for the Bell System (Exhibit P-77; Introduction). The Clark Shops manufacture submarine cable repeaters for the United States Government (Exhibit P-77) and for the telephone company (Malina, 43: 5335-6) (Hobbie, Tr. 197). The five named individual defendants are Fred Wilser, Kyriazi's supervisor during her tenure at the Information Systems department in Kearny; Ralph Boyd, who supervised a department of the Information Systems professionals during the period in which Kyriazi was physically located there; and Kyriazi's male co-workers in Information Systems: James Snyder, Robert Armstrong and Shen T. Liu. C. Scope of Class and Class Claims By order dated July 16, 1975, the Court certified the class to encompass: all females who are now or at any time since June 9, 1971, have been employed by defendant Western Electric Company, or who sought employment with said Company during the pendency of this suit, at the Kearny works organization. On behalf of this class, Kyriazi contends that women have been discriminated against in the areas of (1) Hiring, (2) Promotion, (3) Transfer, (4) Layoff, (5) Discharge, (6) Maternity Leave, (7) Tuition refund benefits, (8) Participation in the Bell Systems Savings Plan, (9) Participation in training programs, and (10) Opportunities for testing. D. Kyriazi's EEOC Charge and its Effect on Class Membership As a prerequisite to suit under Title VII, timely charges must be filed with both the state agency and with the EEOC. 42 U.S.C. § 2000e-5(e). Where a named plaintiff in a class action has complied with these requirements, he or she may represent a class composed of all those who could have filed charges of discrimination as of the date on which the named plaintiff filed her charge. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Kyriazi filed two charges of discrimination with the EEOC; an unsworn charge dated January 7, 1972 (P-161) and a sworn charge dated September 11, 1972 (D-79B).[2]900 Western argues that the Court should credit only the latter charge, thus limiting class membership to all women who could have filed charges as of November 15, 1971, that is, 300 days before September 11, 1972.[3] The Court, in accordance with its earlier order certifying the class, credits Kyriazi's first charge with the EEOC filed January 7, 1972, thereby allowing her to represent a class of women who had viable claims of discrimination within 210 days of that date, or June 9, 1971. For it is by now well-settled law that unsworn, unserved charges are effective on the date filed. See, e. g., Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). In balancing the possible prejudice to each side, we find that selection of the earlier date affects only the measure of defendant's damages not its liability while selection of the latter date would preclude relief to women who were deliberately denied their federally-guaranteed right to equal employment opportunities. Accordingly, the Court adheres to its order certifying the class and holds that the class consists of all women who had viable claims of discrimination as of June 9, 1971. Western argues further that the class claims should be limited to those asserted by Kyriazi in her EEOC charge. (Def's Pr. Finding No. 25). It is clear, however, that a Title VII named plaintiff may raise not only his or her own claims, but also those "growing out of such allegations during the pendency of the case before the Commission." King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga. 1968). See also, e. g., EEOC v. General Electric, 532 F.2d 359, 368-9 (4th Cir. 1976); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). E. Actionable Period We next address the question of the time period for which Western may be held liable. Western argues that it may be held liable only for those acts of discrimination which occurred within the 210 days before Kyriazi filed her charge with the EEOC, and that claims arising prior to that date are time-barred. Plaintiff argues that while class membership is governed by this date, class members may secure remedies for acts of discrimination occurring back to July 2, 1965 (the effective date of Title VII) or the date of their hire, whichever is later, because Western has engaged in a "continuing violation" of Title VII. The "continuing violation" theory permits a Title VII plaintiff to challenge an employment practice even if all the acts of 901 discrimination alleged did not occur within the EEOC filing period. This is so because where an employer has regularly and systematically discriminated against a class it will often be impossible to isolate specific acts of discrimination occurring within the filing period. See generally, Barbara Lindemann Schlei and Paul Grossman, Employment Discrimination Law, 884-908 (1976). This theory serves a number of different purposes; for example, it permits a plaintiff to challenge a practice without the necessity of alleging that he or she is presently affected by it, see e. g., Bartmess v. Drewrys USA Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971) (female employee challenging system which forced women to retire earlier than men did not have to await her own retirement to file EEOC charge); Wetzel v. Liberty Mutual, supra (system of segregating females into certain jobs may be challenged at any time). It also permits a Title VII plaintiff to seek redress for acts of discrimination occurring prior to the EEOC filing period, for, as the Court of Appeals for the Tenth Circuit has noted, the short EEOC filing period "looms inconsequential" in the face of a practice which regularly discriminates against a class. Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975). See also, Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y.1973), appeal dismissed, 496 F.2d 1094 (2nd Cir. 1974) (charge timely even though no applications made within 180 day filing period). Defendant argues that the Supreme Court's recent decision in Evans v. United Airlines, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) abrogates the "continuing violation" theory. We disagree. In Evans, the plaintiff had been forced to resign in 1968 from her position as a stewardess because of her employer's then prevailing no-marriage policy. That policy had been eliminated when the plaintiff resumed her employment in 1972. More than a year later she challenged her lessened seniority which, she contended, was the direct result of the discriminatory policy which prevailed in 1968. The Court held that since she did not make a timely charge in 1968, she could not now challenge the practice because at present she suffered no more than the present effects of past discrimination. It is clear to this Court that Evans does not overrule the "continuing violation" theory of Title VII. For, as the Supreme Court was careful to point out in Evans, the only employment practice which presently existed was the seniority system, which, while it had an adverse impact on the plaintiff to the extent that it perpetrated the effects of past discrimination, was itself non-discriminatory. Thus, no present continuing violation existed: Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. Id., at 558, 97 S.Ct. at 1889 (Emphasis in original). Here, by contrast, we deal with an employment practice which did constitute a violation of Title VII as of the time the EEOC charges were filed.[4] Accordingly, because plaintiff has alleged and proved a "continuing violation" of Title VII as of the time the EEOC charges were filed, any woman who had a claim against Western as of June 9, 1971 may secure relief for acts of discrimination 902 which occurred from July 2, 1965, the effective date of Title VII, to the present. Kyriazi's claims against Western and the five individual defendants under 42 U.S.C. § 1985(3) will be governed by New Jersey's six year statute of limitations applicable to actions for breach of contract and injury to property, N.J.S.A. 2A:14-1, see, Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir., 1978), as will Kyriazi's tort claims against the five individual defendants. III. SUMMARY OF PLAINTIFF'S PRIMA FACIE CASE It is by now axiomatic that a Title VII plaintiff has the initial burden of offering evidence adequate to create an inference that the employer has engaged in a pattern and practice of discrimination directed at the class. In a "disparate treatment" case, the plaintiff must show if only through circumstantial evidence a discriminatory motive or intent on the part of the employer; in a "disparate impact" case, the plaintiff must show that facially neutral practices, while "fair in form" are "discriminatory in operation."[5] Once this initial burden is discharged, the burden then shifts to the employer to provide a non-discriminatory explanation for its practices. See, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See generally, Schlei & Grossman, supra, at 1147-96; George Cooper, Harriet Rabb & Howard Rubin, Fair Employment Litigation, 64-130 (1975). The Supreme Court has recently made clear that a prima facie case may be made on statistics alone, albeit that the reliability of those statistics depends on all the surrounding facts and circumstances. See, Teamsters, supra, at 339-340. Here we are satisfied that plaintiff has met her burden based on statistics alone. She has shown through statistical evidence, discussed more fully hereafter, (1) that women are disproportionately clustered into the lowest graded jobs at Western; (2) that women are hired initially in disproportionate numbers into the lowest grades; (3) that women are promoted in fewer numbers and with less frequency than men; (4) that women are completely foreclosed from participating in job programs which would help them ascend from the low ranks; and (5) that women were laid off in far greater numbers than men. This is not, however, merely a "statistical" case. In addition to an overwhelming amount of highly relevant statistical evidence, itself sufficient to sustain her burden, plaintiff has brought these statistics to life with direct evidence that supervisors on every level at Western intentionally discriminated against women on a plant-wide basis. This evidence includes the use of discriminatory advertising for hire and personnel requisition forms which permitted Western's supervisors to designate their sex preference for a position. Such evidence of discriminatory purpose removes any question that the statistical disparities proved by the plaintiff arose merely as a matter of chance. We turn first to plaintiff's statistical case. IV. DISTRIBUTION OF MEN AND WOMEN WITHIN WESTERN'S WORKFORCE AT KEARNY Women have comprised between 33 and 39% of Western's workforce during the relevant period. Nevertheless, as plaintiff's statistical proofs reveal, females are virtually excluded from the highest level positions 903 while they swell the ranks of the lowest clerical and operative grades. Thus, for example, plaintiff's proofs demonstrate that as of January 1, 1975: 1. There were 735 employees within the EEO category denominated "Officers and Managers", which encompasses supervisory positions at Western.[6] Only 1.9% of this group was female. Even within that small percentage, no women held a position above that of section chief, the lowest level of supervision. (Hobbie, 2: 230; Exhibits P-77; P-11; D-204, Tab 1974). 2. There were 545 employees within the "Professional" category, which includes such diverse occupations as Engineer and Information Systems Staff member. 93.2% of this group was male. The female professionals who made up the remaining 6.8% included secretaries and nurses. (Exhibits P-77; P-11; D-204, Tab 1975). 3. There were 426 employees within the "Technical" category, which includes the positions of Engineering Associate, Information Associate and lab technician. 97.7% of this group was male. (Exhibits P-77, D-204; Hobbie, 2:234). 4. There were 1946 employees within the Office and Clerical category, 66% of whom were women. There were 6283 employees in the Operative category "30" series, 46.6% of whom were women, and there were 456 employees in the Operative-Laboratory Technician "600" series, 94.7% of whom were female. Within those percentages we find women clustered primarily in the lowest grades of each category of employees: (Plaintiff's Proposed Findings of Fact, 11 a, b, c). a) The Clerical category is divided into the "200" and the "500" series. The "200" series is graded from grade 202 to grade 212; grades within the "500" series run from grade 503 to grade 512. The distribution of men and women was as follows: 200 SERIES 500 SERIES Grade % Female Grade % Female 202 81 503 100 203 92.7 504 100 204 95.4 505 100 205 83.1 506 94 206 82.3 507 86 207 75.8 508 57 208 59.6 509 50 209 34.7 510 40 210 39.1 511 25 211 21.9 512 10 212 8.9 (Exhibits P-77; P-20) (Exhibit P-28) b) The "operative" category encompasses jobs which deal directly with the manufacturing process, such as assembler and drill press operator. This category is divided into the "30" series, running from grade 32 to grade 39, and the "600" series (covering laboratory technicians in the Clark Shops) which runs from grade 611 to grade 691. The distribution of men and women within these grades was as follows: 30 Series % FEMALES GRADE NO. IN GRADE IN GRADE 32 1,974 90.0 33 1,108 62.0 34 1,303 28.0 35 891 8.0 36 700 1.3 37 305 1.6 (Exhibits P-22; P-77) (January 1, 1975) 600 Series % FEMALES GRADE NO. IN GRADE IN GRADE 611 18 89 621 56 100 631 113 46 641 85 68 651 55 58 661 73 13 671 40 08 681 5 00 691 11 00 (Exhibit P-23) (January 1, 1975) c) In addition, plaintiff's proofs suggest that so-called "female jobs" are graded more strictly than so-called "male jobs": 904 ------------------------------------------------------------------------------------------------ "MALE JOBS" \| "FEMALE JOBS" \| Draftsman (Grade 203) (47 males and 2 \| Clerk Typist (Grade 203) (133 females females hired between 1967 and 1976.) \| and no males) (P-74) \| (P-74) \| Job Prerequisites: \| Job Prerequisites: \| No prior experience \| Requires 2 months or 4 months prior - ¾ of 4 month mechanical training \| experience and typing skills. course. \| (D-175(a), (b)) (D-175(a), (b)) \| \| \| Other grade 203 level jobs into which \| only females are hired (teletype operators, \| calculating machine operator) require \| prior experience. \| (D-175(a), (b)) \| - - - - - - - \| - - - - - - - \| Staff Chauffeur (Grade 508) (filled \| Telephone Overseer (Grade 508) (filled only by males between 1967 and 1976) \| exclusively by females) (D-204) (Exh. D-177). \| (D-204) (Exh. D-177). \| Job Responsibility: \| Job Responsibility: \| No responsibility for work of others. \| Supervisory in nature; trains and supervises Must "[o]perate limousines, passenger \| operators; maintains directory cars and station wagons to provide \| and information files. transportation for company executives \| . . . and keep limousines \| Assistant Telephone Overseer (Grade clean." \| 507) (exclusively female) must: \| "oversee and coordinate all operating \| activities of the Works Telephone \| Exchange . . . assign work \| schedules, instruct telephone personnel, \| recommend revisions and improvements \| for optimum service and \| savings, handle incidents of urgent \| or critical natures such as crank \| calls or bomb threats requiring extensive \| reasoning to ascertain between \| valid or invalid emergencies, \| etc. Reports must be maintained \| and/or compiled on a wide variety of \| topics including special studies and \| summaries relating to telephone service \| operational activities with associated \| comparisons and analyses." ------------------------------------------------------------------------------------------------ 5. The skewed distribution of women into the lowest grades and occupations at Western is given visual dimension in the following graphs: 905 906 V. HIRING PRACTICES AT WESTERN It is Western's policy to promote from within. Thus, the bulk of Western's hiring is done at the lowest levels, while higher-graded positions are filled almost exclusively from Western's own workforce. (Vines, 11: 1100-11; Hobbie, 2: 340-1, 44: 5368). Nevertheless, Western argues that plaintiff has failed to delineate the relevant labor pool, both for purposes of hiring and promotion. It is clear, however, given Western's promote-from-within policy, that the relevant labor pool for purposes of promotion is Western's own workforce. See, Cooper, Rabb & Rubin, supra, at 84-5: [There] are situations in which the employer's own conduct can be said to have defined the labor pool. For example, in choosing persons for higher level jobs many employers follow a practice of promoting from within, and the pool of persons in entry level jobs is the pool for promotion . . . [W]here there are substantial percentages [of minorities] in the entry level pool and many fewer at upper levels, there is a statistical disparity. Moreover, since the entry level positions at Western require virtually no qualifications, and since it is plaintiff's claim that women are initially hired into lower grades than men, it is clear that the relevant labor pool for purposes of hiring are the employees whom Western actually hired. Cf., Wetzel v. Liberty Mutual, supra, (comparing sex composition of "claims adjusters" and "claims representatives" which have similar requirements.) We turn now to plaintiff's statistics on Western's hiring practices. Grade 32 and 33 jobs have no requirements of skill, education or experience.[7] (Exhibit P-15). Nevertheless, during the period from 1967-1976, of a total of 1,664 men and 2,103 women hired for grade 32 or 33 positions, 97.5% of the women were hired at grade 32 while only 47% of the men were hired at grade 32. (Exhibit P-14). In operative jobs requiring no prior experience, virtually all the women were hired into grade 32, while in many of the job categories, grade 33 hires were exclusively men: HIRING FOR JOBS WITH OPERATIVES AT BOTH GRADES 32 AND 33 WHERE NO EXPERIENCE IS NECESSARY, 1967-1976 JOB GRADE MEN HIRED % WOMEN HIRED % Selector 32 17 94.5 2 100 33 1 5.5 0 0 --------------------------------------------------------------- Bench Hand 32 174 93.5 490 100 33 12 6.5 0 0 --------------------------------------------------------------- Cleaner 33 331 0 0 --------------------------------------------------------------- 907 HIRING FOR JOBS WITH OPERATIVES AT BOTH GRADES 32 AND 33 WHERE NO EXPERIENCE IS NECESSARY, 1967-1976 JOB GRADE MEN HIRED % WOMEN HIRED % Inspector 32 7 17.0 24 58.5 33 35 83.0 17 41.5 ------------------------------------------------------------- Process Checker 32 8 73.0 41 100 33 3 27.0 0 0 ------------------------------------------------------------- Floor Hand 32 11 65.0 0 0 33 6 35.0 0 0 ------------------------------------------------------------- Assembler 32 197 90.0 487 99.4 33 21 10.0 3 .6 ------------------------------------------------------------- Tester 32 7 64.0 9 90.0 33 4 36 1 10.0 ------------------------------------------------------------- Totals 32 422 50.5% 1,053 98% 33 413 49.5% 21 2% (Exhibit P-15, covering 1967-1976 period.) Grade 32, the lowest grade for operatives, and grades 202 and 203, the lowest grades for clericals, are the three lowest grades at Western. (Exhibit P-12). 84.9% of all women hired by Western between January 1967 and April 1976 were placed in one of these three grades. (Exhibit P-45). More specifically, of the 3,755 women hired by Western during this time period: 55.7% were hired at Grade 32 27.0% were hired at Grades 202 or 203 6.7% were hired at Grade A01 (Newark Shop Trainee) 2.1% were hired at Grade 503 (Exhibit P-45). In sharp contrast, only 27.5% of the men hired by Western during the same time period were hired into the three lowest grades, 17.3% were hired at Grade 32 10.2% were hired at Grades 202 or 203 (Exhibit P-45). This sex-segregation of jobs is dramatically summed up by the following statistic: For the period 1967-1976, there were 141 jobs at Western into which only males were hired and 47 jobs into which only females were hired. (Exhibits P-16, P-46). Finally although Western rarely fills its higher-graded positions through hire, when it does so, it awards them almost exclusively to men: Group No. of Males No. of Females Hired Hired Clerical 54 8 (grade 208/508 or above) 908 Group No. of Males No. of Females Hired Hired Clark Shops 55 0 Laboratory Technician (above grade 631) Engineering Associates 167 4 Occupational Engineers 12 1 Senior Engineers 3 0 Information Systems 72 15 Staff Members ANSE-II category 15 2 (Exhibit P-74, covering period from 1967-1976). VI. PROMOTION PRACTICES AT WESTERN As noted earlier, employees hired into the lowest entry jobs can advance by promotion or upgrade to the highest level jobs at Western; that is Western's policy. Thus, an employee hired as a grade 32 operative can progress not only to the highest operative grade, but also to a position in management, or in the professional, technical or craft levels. Indeed, the Court was struck by the fact that many of Western's employees who testified at trial had themselves been promoted from shop or clerical grades to professional or management levels. (Bridges, 16: 1635-9; Kubicki, 15: 1530-33; Marca, 27: 3317-18; Day, 46: 5617; Murath, 16: 1715). We begin with a labor pool which, as we have already held, is composed of Western's own workforce. During the relevant period between 33 and 39% of this pool was female. However, as plaintiff's statistics demonstrate, that portion of the workforce remained primarily in the lowest positions within each job category and department, while promotional opportunities at each step of the ladder, from the lowest rungs to the steps within supervision itself, were afforded almost exclusively to the favored 61 to 67% of the workforce population. Thus, for example, within the Officials and Managers category, which encompasses Western's supervisory personnel, no woman has ever been promoted above the lowest level, that of section chief. Indeed, no woman has ever held a position above that level, whether by promotion or otherwise. Men have held such positions in large numbers: between 96 and 220 in the position of department chief, the second lowest position; between 36 and 85 in the three highest supervisory positions of assistant manager, director and general manager. (Exhibits D-204, 1967-76). To the extent that women have been promoted to the position of section chief, this has been done in small numbers. Thus, during the 1967-76 period, the number of male as compared to female section chiefs was as follows: No. Male No. Female % Section Chiefs Section Section Who Were Year Chiefs Chiefs Female 1967 642 9 1.38 1968 639 8 1.23 1969 655 8 1.20 1970 612 10 1.60 1971 599 10 1.64 1972 544 10 1.77 1973 530 13 2.39 1974 501 13 2.80 1975 485 14 2.80 1976 325 9 2.49 (Exhibit P-29). (See also Hobbie, 6: 374-5). Moreover, the evidence demonstrates that even when women were permitted to hold the position of section chief, they were given responsibility over stereotypically "female work" and almost exclusively over female populations. (See, e. g., Yesko, 43: 5312; Smith, 43: 5296-7). It is not surprising that women have been virtually excluded from supervisory positions. It is the incumbents of such positions who do the selection, and they are instructed to look for candidates who "did a good job" who could "handle people and handle new situations" and who "did not require a lot of instruction." (Vines, 14: 1396). The use of such vague criteria by supervisors who, as we shall discuss infra, almost invariably expressed a personal preference for men in completing their personnel requisition forms, again breathes life into plaintiff's 909 statistics and demonstrates the discriminatory manner in which these criteria were applied. Similarly, within the Operative, Service Worker and Graded Craft categories, as was shown above, women are clustered within the lowest grades. Despite the large number of women within the promotion pool, an examination of actual promotions during the 1973-6 period reveals that few women were promoted to grades 34 or above and that no women were promoted to grade 37 or above: PROMOTION AND AVAILABILITY OPERATIVES, SERVICE WORKERS AND GRADED CRAFTS #Males #Females %Promotions % Females Promoted Promoted to Grade going in Feeder Date to Grade to Grade to Females Grade 1/1-12/31/73 (12/4/72) Promoted to Grade 33 107 120 53 91.2 34 159 33 17 55.7 35 128 9 7 22.0 36 78 1 1 7.5 37 61 1 2 1.3 38 17 0 0 2.1 39 4 0 0 0.8 1/1-12/31/74 (1/6/74) Promoted to Grade 33 49 116 70.3 91.9 34 76 49 39.2 55.2 35 68 9 11.6 23.5 36 59 0 0 6.6 37 61 0 0 1.3 38 15 0 0 1.8 39 3 0 0 0.8 1/1/75 -12/31/75 (12/2/74) Promoted to Grade 33 16 13 44.8 90 34 65 4 5.7 57.8 35 61 0 0 26.4 36 26 1 3.7 8.0 37 6 0 0 1.4 38 3 0 0 1.6 39 1 0 0 0 910 #Males #Females %Promotions % Females Promoted Promoted to Grade going in Feeder Date to Grade to Grade to Females Grade 1/1/76 -12/31/76 (12/1/75) Promoted to Grade 33 63 80 55.9 68.9 34 91 57 38.5 53.3 35 45 1 2.1 24.4 36 38 3 7.3 7.7 37 32 1 3.0 0.5 38 7 0 0 1.2 39 1 0 0 0 (Exhibits D-191, 204, 238) This disparity is not explained by seniority, by job qualifications or by occupation. Plaintiff's exhibits 217-222 show that for the years 1974, 1975 and 1976, females in each grade had substantially greater seniority than males in each grade. The job specifications for the higher-graded positions reveal that the only skills, knowledge or experience required are attainable through experience in Western's lower graded jobs. Moreover, even within the so-called "women's occupations", positions within the higher grades are filled primarily by men. (Exhibits D-204; P-77; P-83). Thus, women do not even progress within the occupations into which they have been segregated. The same pattern exists within the Clerical category. As of January 30, 1975, in both the "200" and "500" series, women at each grade had between two and ten years greater seniority than men. (Exhibits P-27, P-28). "200" Series Grade Years Greater Seniority of Females 204 1.85 205 5.06 206 5.90 207 7.07 208 2.83 209 9.21 210 3.97 211 7.08 212 10.08 (P-27, P-28). "500" Series Grade Years Greater Seniority of Females 503 2.69 504 6.36 505 5.99 506 4.32 507 9.60 508 6.03 509 10.03 510 8.19 511 6.50 512 8.01 (P-28(b)) The same is true within the remaining job categories at Western. For example, between 1972 and 1975, within the Technical 911 category, 5 males were promoted to the position of Information Associate; no women were promoted to this position. During this same period, 14 males and only 1 female were promoted to the position of Engineering Associate. (Exhibit P-74). During these same years, within the Professional category there were 27 promotions within the ANSE (Administrative Non-Supervisor Employee) position. Only 14.8% of these promotions went to women. It was not until 1977 that a female was promoted to an ANSE-3 job (Exhibit D-204) and, to date, no woman has held an ANSE-4 job, whether by hire, promotion or transfer. (Exhibits D-204; P-74). Moreover, those women within the ANSE category have been clustered into ANSE-1 positions from which no promotion is possible, in jobs such as Pioneer Representative, Dietician. (Exhibits D-204; P-91(a)). Similarly, during this same period, 5 males and no females were promoted to Senior Information Systems Staff member; 22 males and 7 females were promoted to Information Systems Staff member. (Exhibit P-74).[8] VII. PARTICIPATION IN TRAINING PROGRAMS AT WESTERN Training programs have a great impact at Western. Having heard the testimony of nearly two score of Western's former and present supervisors, and having studied their employment histories, the Court was struck by the fact that nearly all of them rose from what are generally considered "blue collar" jobs to important supervisory positions in fields unrelated to those into which they were first hired. Western has operated two programs to train individuals for jobs in supervision: the Shop Staff Training Program and a program which hires staff trainees. The Shop Staff Training Program trains individuals with shop backgrounds for positions as section chiefs. (Vines, 13: 1372; 15: 1492; Exhibit D-211). During the years 1964, 1965, 1966, 1970, 1973 and 1975, only 4 females participated in this program as compared to 64 males. (Exhibit P-30). It was not until 1970 that a female participated in this program at all. Although the pool from which these trainees are drawn is the operative classifications, females within this pool were largely ignored even after 1970: Percentage of Women Year Within Operative Percentage of Classifications Women Trainees 1970 42% 5% 1973 46% 8% 1974 47% 16% (Exhibits P-30; P-76, Tab 6; P-77, Tab 5; D-204, Tab 1970). The second program which trains individuals to become section chiefs draws from new employees hired into the classification denominated ANSE-I Staff Trainee. (Vines, 14: 1400; 15: 1492; Exhibits P-91(a); P-18). During the period from 1967 through 1976, no female was ever hired into this classification while 58 males were hired. (Vines, 14: 1400; Exhibit P-74). Western has failed to explain this disparity. Western also operates a training program for technical-professional employees at its Corporate Education Center in Princeton. (Kubicki, 15: 1566). Female professionals who were selected to participate in this program were encouraged to take courses in such non-technical areas as "Creative Thinking", which could not lead to any substantial career advancement. (Exhibit D-211). Western has also operated two programs designed to train individuals in skilled crafts: the Apprenticeship Training Program and the Plant Trades Training Program. In order to be eligible for entry into these programs, a candidate had to have a working knowledge of a particular craft. Western has produced evidence that 912 the pool from which it draws participants in these programs consists of vocational school graduates, who are almost exclusively males. (Schmaydey, 42: 5166; Vines, 14: 1497; Killman, 42: 5173). Accordingly, with respect to these two programs, the Court finds that the failure to select women was not the result of discrimination. VIII. LAYOFFS The Kearny workforce has been declining over the past ten years. In 1968, there were 14,502 employees; in 1970, there were 13,000 employees; in 1976, there were 8,000 employees and by May, 1977, Western's workforce was reduced to 7,133 employees. (Exhibit D-204). Of the approximately 5,284 employees whom Western laid off between 1970 and 1976, 63% were women while only 37% were male. (Vines, 13: 1349-50, 1553; Exhibit P-17). An examination of the procedures governing layoffs sheds light on this disparity. The collective bargaining agreement in effect prior to August, 1974 ("the 1971 Agreement") provided, in essence, that individuals would be laid off by occupation and grade, in inverse order of seniority. Thus, under this system, the line supervisor would declare a surplus, and the surplus would then be pegged to an occupation, grade level and department chief's organization. (Vines, 15: 1518; Grider, 54: 5542-3). The individual with the least seniority within that occupation, grade level and department chief's organization was the one laid off. However, management retained complete discretion not to lay an individual off. (Vines, 14: 1424-5). If management chose to retain a surplus employee, they had the option to either transfer him laterally if there was a vacancy within his grade level, or, if that proved unsuccessful, to "bump" him down. (Grider, 45: 5513-5). The "bumping" process worked essentially as follows. An employee may bump down only within his own occupation, but, even then, he may not bump an employee with greater seniority. Thus, for example, if a surplus were declared at the level of grade 34 benchman, the individual within that grade with the least seniority would either be laid off, or if management so chose, he would "bump" a grade 33 benchman with less seniority. While seniority was a factor in the "bumping down" process, there was no such thing as "bumping up". (Vines, 15: 1515). Thus, if a surplus were declared at grade 32, a grade 32 worker with twenty years seniority could be laid off even if there were a grade 33 worker within that occupation with only two years seniority. Effective August 1974, Western entered into a new collective bargaining agreement with Local 1470, covering operatives, service workers, "200" clericals and crafts.[9] Under that agreement, employees in the lowest grades (32, 202 and entry levels 33 or 203) were to be laid off regardless of where the surplus lay and before employees in the next highest grade could be laid off. Thus, that agreement, in effect, provided for the opposite of L-I-F-O[10] in that a class of 913 employees had to be cleared out, regardless of seniority, before employees in the next highest grade could be laid off. (Grider, 45: 5516). Only then would a surplus be declared, and the process of "bumping" would begin. At the time that agreement was negotiated, 90% of all grade 32 workers were female; 80% in the grade 202-203 category were female. (Exhibits P-77; D-204). Plaintiff's statistics demonstrate that, under both collective bargaining agreements, women were laid off in disproportionate numbers, seniority notwithstanding, and that they were "bumped" by men. For example, Exhibit D-204 demonstrates that within five different grade 32 occupations, the numbers of women relative to the number of men changed drastically between 1970 and 1977. While in 1970 there were 90 female (and no male) grade 32 adjusters, by 1977, there were 51 females and 33 males within this grade and occupation. Similarly, in 1970 there were 648 female grade 32 benchhands; in 1977, there were only 275 females within this grade and occupation, while within this same period the number of men had increased from 66 to 214: 1/10/70 1/15/71 1/10/72 12/4/72 1/6/74 12/2/74 12/1/75 1/3/77 OCCUPATION 32 32 32 32 32 32 32 32 TITLE M F M F M F M F M F M F M F M F ------------------------------------------------------------------------------------------- Adjuster 90 54 4 80 3 103 2 101 2 101 131 55 33 51 Assembler 72 654 36 466 50 441 60 468 61 496 56 446 145 264 146 251 Benchhand 66 648 30 404 42 515 37 578 40 648 50 567 210 344 214 275 Coil Winder 47 42 41 34 44 39 8 24 17 21 Wireman 2 638 2 317 1 366 1 397 1 368 3 382 32 244 12 196 (Comparison of Seniority of Men and Women) 1974 1976 ------------------------------- ------------------------------- Av. F Av. M Av. F Av. M Total Ser. Ser. Total Ser. Ser. EES %F Date Date EES %F Date Date GRADE 32 Adjuster 102 98 67-2 68-7 74 70 59-12 56-11 Assembler 492 88 62-5 68-7 393 63 55-8 57-7 Coil Winder 37 100 67-9 - 38 55 60-11 58-12 Benchhand 611 93 63-4 65-4 493 56 56-2 57-5 Wireman 365 99 68-6 64-4 222 92 61-6 61-6 (Exhibits P-218, P-220, P-222). IX. WAGES By overwhelming statistical evidence, plaintiff has established that women at Western earn less than men. This result is not surprising; indeed any other would be, given Western's policies which slot women initially into lower grades, exclude them totally from certain kinds of work, overlook them for advanced training and promotion, and lay them off in times of business adversity. All that being so, however, the Court finds that at this time it is virtually impossible to fix a monetary value on either what all the women employees in the class have lost, or what any one of them exclusive of the plaintiff herself may have lost as a result of Western's discriminatory employment practices. The Court, at least at this stage, is simply not prepared to accept or adopt the regression analysis of plaintiff's expert, Dr. John Ullman. The Court found Dr. Ullman's testimony unhelpful in determining 914 this issue, in large part because his criteria and their valuations were quite arbitrary and subjective, and, frankly, in larger part because his testimony was simply not comprehensible to the Court. There will have to be a second stage in this case, at which time we will determine the amount of damages the class, or any member of it, has sustained. It is sufficient for now to find that wages have been lost by women as a result of sex discrimination by Western and to reserve for later the determination of just how much. X. OTHER EVIDENCE OF DISCRIMINATION AT WESTERN Were this merely a case based on statistics, we would already be satisfied that the plaintiff has discharged her burden; indeed, under Teamsters, supra, a statistical showing such as this would compel that result. However, we have before us the rare case in which the plaintiff, in addition to the circumstantial evidence of her statistical case, has produced direct evidence of discriminatory intent. Plaintiff here has done more than provide the Court with cold statistics; she has exposed the very attitudes which produced those statistics in the first place; attitudes held by individuals in key positions at Western, which regard certain jobs as suitable for men only, and others inevitably the lowest paying as suitable for women only. We turn first to the "Requisition for Personnel" forms. The history of the "Requisition for Personnel" forms their alteration by employees of the defendant and their eventual discovery by the plaintiff was the subject of an earlier opinion by this Court: Plaintiff's counsel, on March 31, 1976, while conducting discovery on the Western premises, came upon certain documents Requisitions for Personnel the existence of which had theretofore been unknown to plaintiff. These Requisitions were forms sent by a company supervisor to the Western Personnel Office when a supervisor had a position to fill within his department. Only three such Requisition forms were found, each stapled to Placement Lists which had but recently been made available to plaintiff through discovery. Because there were hundreds of Placement Lists, all showing staple markings, plaintiff's suspicions were aroused. She wanted to know the whereabouts of the remainder of the Requisition Forms. The answer to this question seemed critical because the Requisition forms contained blanks where a supervisor, by making an X mark in the appropriate space, could indicate whether he preferred a male to fill the slot, or a female, or whether he had no sex preference. At a conference scheduled before the United States Magistrate later that week, plaintiff's counsel, Ms. Vladeck, expressed concern about what she considered to be tampering with the evidence, that is, the detachment of the requisition forms from the placement lists. Mr. Lynch, counsel for Western, and Ms. Vladeck attempted to work the matter out inter sese, and on April 8th, Western Electric turned over to plaintiff some two thousand requisition forms. Upon examination of these forms, Ms. Vladeck's suspicions were further excited. It appeared that the forms had been altered to obscure the fact that supervisors using the forms had indicated sex preferences, and to obscure the particular sex preference which the supervisor had indicated. Unlike the three forms discovered on March 31st, many of the forms had X marks, in different colored inks, in all three sex preference blanks M, F, and M or F. The following day, plaintiff brought an emergent application before the Court charging that the forms had been deliberately and recently altered by Western Electric. Although counsel for Western denied that the forms had been recently altered, the Court deemed it appropriate to give plaintiff an opportunity to have an expert examine the documents in order to substantiate the claim of recent alteration, and to protect the forms and 915 from possible further alteration. Accordingly, the Court ordered these documents removed from Western's possession, granted temporary custody of the forms to plaintiff, and authorized her to engage in discovery to support her charges that the Requisition Forms had been improperly withheld and altered. Plaintiff proceeded with her investigation and presented an Order to Show Cause why Western Electric should not be punished for contempt. She maintained that she could prove that the Requisition Forms had been altered between the time they had been requested and the time they had been turned over. A return date was set for June 17th. Two days before the return date, counsel for Western Electric requested an opportunity to appear before the Court. He conceded that the Requisition Forms had been recently altered. Furthermore, he conceded that Western Electric employees may have committed perjury in deposition testimony concerning the forms. Kyriazi v. Western Electric, 74 F.R.D. 468, 469-70, n.2 (1977). At trial it developed that Western's employees not only "may have committed perjury in deposition testimony concerning the forms", as conceded by Western's counsel, but that they actually did. Not only did they give such false testimony under oath, but, as they finally admitted at trial, they altered the Requisition for Personnel forms to conceal the fact that Western's supervisors had been expressing a sex preference for men in the hire and promotion of employees.[11]916 917 Requisition for Personnel forms which had boxes to indicate sex preferences were employed by Western. From the early 1960's until the day after Kyriazi discovered them in Western's files. A Requisition for Personnel form was a form filled out initially by a Western supervisor, typically a section chief, when a job vacancy occurred in his organization. The form described the job opening, and, in a separate printed box, enabled the supervisor to check "M", "F", or "M or F", depending on whether he wanted the vacancy filled by a male or a female. The Requisition forms were endorsed by three levels of supervisory personnel. Thus, after the section chief filled in the necessary information including the sex preference the form was forwarded to the department chief for endorsement and then to yet a third level of supervision, generally the assistant manager, for his endorsement.[12] It is apparent, therefore, and the Court so finds, that employees at every level of operating management knew that these forms were routinely used throughout the company.[13] 918 Not surprisingly, the Requisition for Personnel forms did little to enhance the position of women at Western. That males were preferred for the highest graded jobs at Western, and women for the lowest, is dramatically illustrated by the following table compiled from P-114 ("1974 Requisitions Containing Sex Preferences"): Position No. of Males No. of Females Requested Requested Grade 32 openings 9 87 Grade 33 openings 52 8 Grade 34 openings 76 9 Grade 35 openings 60 1 Grade 36 openings 41 0 Grade 37 openings 23 1 Craftsmen 11 1 (for female waste and water treatment operator) 500 Series Clerical All 0 Clerical, grades 209 All 0 and above Section and Department 9 0 Chief 919 Western does not deny that the Requisition for Personnel forms were used throughout the company for many years. Rather, it claims that new forms were printed up in 1972 and that the old forms were still used in 1976 solely because supervisors were instructed to exhaust the old forms before using the new forms. Even so, it does admit that even after 1972, between 1974 and 1976, 27% of the forms did in fact designate a sex preference. (Vines, 12: 1224). Nevertheless, while admitting the continued use of the sex designation boxes after 1972, Western still claims that this "spirit of economy" was the only reason for the continued use of these forms from 1972 until April 6, 1976, one day after the plaintiff found out about them as a result of Court-ordered discovery. For obvious reasons the Court rejects this defense. In a further attempt to downplay the significance of the sex designation forms, and their use even three years after this lawsuit was commenced, Western claims that the sex preferences were filled in by the secretaries of the section chiefs rather than by the section chiefs themselves. (Tr. 2094, 2098). However, even the author of that theory, Mr. Norman J. Hobbie, who was the Assistant Manager for Western, and for a time the corporate official in charge of Equal Employment Opportunity at Western, conceded that this theory made little sense: Q. Why did you want them there? A. I wanted to hear from them because of my mind I recognized the use of old forms was certainly not something that was good so far as this particular case; that I knew it would be used against us in some way. Q. Why? A. Because it showed that the company showed preference for a particular sex. Q. Or at least somebody in the company? A. That somebody in the company Q. Showed that your line supervisors actually did care whether they were getting males or females? A. That could be an assumption. My own feeling is that they ignored that area of the form. * * * * * * Q. Who filled out the form? A. I must have filled one or two out in the time that I was at Kearny. And I can only evidently say I don't recall ever seeing a box that said, "Male", "Female," or anything. I just never looked at it. * * * * * * Q. So the forms to the extent they had been filled out by line supervisors did indicate that those line supervisors did have a preference, didn't it? A. They or their secretaries, you know. Q. They had to sign them. A. I see, your point, that, yes, you sign a piece of paper. Q. Then it had to go up to the Department Chief for his countersignature; isn't that right? A. I think it goes through three levels. I'm not sure. Q. They all have to sign it? A. Yes. Q. Is that why you were concerned that it might be used against the company? A. I was concerned because I felt it was something that was damaging. (Tr. 2093-2095). While it is true that several other employees of Western testified that during the years 1972 through 1976 they, in personnel, had disregarded the expressed sex preferences of the Western supervisors in processing the forms and filling the openings, in 920 light of their admitted perjury and attempts to conceal and alter this evidence, the Court rejects such testimony as unworthy of belief and finds that the supervisors themselves knew of the continued use of the Requisition forms. We catalogue other examples drawn from the abundant evidence of the discriminatory attitudes which prevailed at Western: ads for stenographers, typists, and keypunch operators describing women as "the other half of the team" (Exhibit P-53); the male only help-wanted newspaper ads used by Western until at least mid-1970 for all jobs except clericals (Anderson, 6: 425; Exhibits P-52, P-53); employment test results placed on different colored cards for men and women (blue for women, white for men); "word-of-mouth" hiring which, as plaintiff's statistics demonstrate, worked to the substantial disadvantage of women.[14] This direct evidence of discriminatory intent and purpose sheds light upon and validates the inference which flows inevitably from plaintiff's statistics. XI. WESTERN'S DEFENSES TO PLAINTIFF'S PRIMA FACIE CASE As noted earlier, a Title VII plaintiff may discharge her initial burden by creating, on statistics alone if need be, an inference that the employer has systematically discriminated against the class in its employment practices. Here, the impressive statistical showing made by the plaintiff, bolstered with evidence showing the discriminatory intent of Western's supervisors, clearly discharges her burden with respect to Western's practices in the areas of hiring, promotion, participation in job training programs, layoffs and, as a result of the foregoing practices, wages as well. The burden now shifts to Western to furnish an explanation for those statistical imbalances. We turn now to Western's defenses. A. Western's Defense to Discriminatory Hiring of Women into Grade 32 Western does not dispute plaintiff's statistical showing (see V, supra) that women are hired disproportionately into grade 32, while men are hired into grade 33. Rather, it claims that it did women a favor by hiring them into this lower grade. (Def's Pr. Findings 570-575). It attempts to support this by arguing that since grade 32 Piece Workers the category into which more women are hired than any other earn more than grade 33 Day Workers who are primarily men women in grade 32 earn more than men hired at grade 33. The basis of this contention is defendant's Exhibit 183-d admitted over the strenuous objection of the plaintiff and notwithstanding the Court's own expressed doubts as to the exhibit's reliability based on Western's destruction of the underlying data.[15] D-183-d purports to demonstrate that grade 32 Piece Workers earn more than grade 33 Day Workers by setting forth the average weekly earnings for grades 32 and 921 33 Piece Workers on the one hand, and for grades 32 through 36 Day Workers on the other. Western had available the actual earning rate of these workers for the last fiscal week in 1971, 1974, 1975 and 1976. To these actual earning rates, it added a shift differential and, in the case of Piece Workers, the piece work percentage. The rate was multiplied by 40, representing the 40 hour work week. Thus, defendant claims that grade 32 Piece Workers earn $25 to $36 more per week than grade 33 Day Workers. Having heard the testimony of the exhibit's author, Mr. Ammermann, the Court remains dissatisfied with that testimony and thus rejects D-183-d as unreliable. Moreover, to accept defendant's contention would be to find that the disproportionate grouping of women in grade 32 and men in grade 33 represents a favoring of the women over the men. In the context of the evidence of this case, such a suggestion is, to say the least, implausible. Nor did Western offer any evidence suggesting that women were offered the grade 33 positions, or that they turned such positions down in favor of the more "desirable" grade 32 jobs. In any event, it is clear to the Court, and the Court so finds, that in terms of promotion and layoffs, these women were severely disadvantaged by having been placed in the lower grades. Accordingly, the Court rejects this defense and finds that Western discriminated against women by hiring them into grade 32. B. Lack of Interest Western seeking to rebut plaintiff's statistical evidence regarding promotions, claims that women were not promoted because they were simply not interested in promotion. The record demonstrates, however, that when an employee was considered for promotion it was his supervisor who initially determined whether the individual was interested in promotion. (Hayeck, 42: 5206; Matthews, 43: 5252; Rotheramel, 43: 5273). If the supervisor represented that the individual was not interested, that individual was not interviewed and, indeed, never learned that he was a candidate for promotion. (Vines, 12: 1232). Further, the evidence demonstrates that women were never afforded the opportunity to express their alleged lack of interest, because they were rarely even considered for promotion: Employee Placement Recommendation Forms 1970-July 1976 Period No. of Males No. of Females % Recommended % Recommended 1970-1974 88 89 11 11 1975 95 74 31 20 Jan.-July 1976 223 82 49 18 (Exhibit P-117). The Court finds that Western itself became alarmed at these initial recommendations, and particularly at the "not interested in promotion" label utilized by Western to justify either the disqualification of a woman or the ultimate award of the promotion to a male. Thus, on February 22, 1974, P-115 was circulated to all managers: February 22, 1974 MEMORANDUM TO ALL MANAGERS: Re: Placement Procedure This will supplement Mr. Hobbie's memorandum of February 6, 1974. We have an additional Equal Opportunity requirement that compels us to document all cases where a female or minority group member is disqualified for upgrading or reclassification. We recognize the burden that this will place on your organization but our Headquarters has reached this agreement with the federal agencies and we have no choice but to follow their direction. Each case and each incident of disqualification must be documented individually over the signature of the line Department Chief. The memorandum should accompany 922 the placement list and the GN-92-3-CP Rerate, Reclassification and Transfer Authorization form on the selected employee. The form cannot be processed by Personnel unless we receive the memorandum and placement list. The documentation should contain the specific reason why the female or minority group member was disqualified. If we receive multiple disqualifications, that appear justified, on an individual recommended for a particular grade and occupation, we will discuss the recommendation with the originating line organization. However, if the employee appears on a placement list due to being in a group selected as a feeder and the group is consistently disqualified, we will review the selection of feeder occupations with the line organization. By taking such measures, we would hope to avoid unnecessary correspondence on your part. The Personnel Department has been notified of the above. /s/ K. C. DREW41000 Ten months later, that memorandum was updated by P-116: December 26, 1974 TO ALL ASSISTANT MANAGERS: Re: Placement Procedure As you are aware, our affirmative action compliance agency (Department of Defense), the Equal Employment Opportunity Commission, and the State Division on Civil Rights have become very active in monitoring our progress in the movement of minorities and females into higher graded jobs. In February and April of this year, we informed you of an Equal Opportunity requirement which necessitated the documentation over the line Assistant Manager's signature of all cases where females and minority group members are disqualified for upgrading or reclassification. Effective immediately, we will also require documentation on cases where females and minorities turn down or refuse opportunities for upward movement. The documentation, over the line Assistant Manager's signature, should include the specific reason for the refusal. We recognize that we have many instances of turndowns of upgradings by our employees for good reasons. However, when we fail to move minorities or females for any reason, we will need documentation which will be our most effective defense. We would appreciate your advising your Department Chiefs and Section Chiefs of this requirement. /s/ N. J. HOBBIE41200 Copy to: Managers Manager, Merchandise and Service Resident Head, Manager Nevertheless, despite these directives, no documentation was supplied even though women continued to be turned down for "lack of interest". Mr. Elles Vines, who in May 1977 became head of EEO, testified that pursuant to P-115 and P-116, supervisors at Western "documented" each instance of "non-interest" or "disqualification" whenever either reason was used to pass over a woman for promotion. He testified that the system had a failsafe provision in that it was monitored by a half-dozen personnel analysts who would insist that such separate memos accompany each such passover. Upon direction of the Court, Vines agreed to produce these "substantial" number of memoranda, although Western claimed that they had already been discovered by counsel for plaintiff. The next court day, however, Mr. Vines advised the Court that Western did not have even one such memorandum from any one of the 400 to 500 supervisors at its Kearny plant. He then testified that all of these hundreds of supervisors, each one of them, had simply forgotten the directive each time a woman had been passed over because of her 923 lack of interest or because she was unqualified.[16] Accordingly, in view of the fact that males were recommended for promotion in far greater numbers than females, thereby depriving females of the opportunity to express their "indifference", and the fact of Western's failure to document the instances of such disinterest according to its own directive, the Court finds no such lack of interest on the part of women at Western. C. The Collective Bargaining Contract Western next contends that upgrading was controlled by the collective bargaining agreement and, therefore, that such decisions were effectively out of the hands of its supervisors. However, the procedure set forth in the collective bargaining agreement between Western and Local 1470, applicable to all jobs within the bargaining unit represented by the Union, simply provided that vacancies were to be filled by upgrade or transfer of "employees who have the qualifications for the job." (Exhibits P-86(a), P-86(b)). "Qualifications" were defined as "experience", "demonstrated productive efficiency", "skill or ability", "conduct on the job" along with term of employment. Only when these factors were "relatively equal" was term of employment to be given the greatest weight. Western gave its first line supervisors the right to determine the qualifications of candidates for upgrade or transfer, with no written criteria for evaluating these qualifications. (McCarthy, 13: 2208; Niles, 19: 2190; Vines, 11: 1139). Thus, it is clear that Western's supervisors who, as has been shown, were routinely making sex preferences in their Requisition for Personnel forms were at all times perfectly free to interpret these qualifications in any manner they chose. While Western contends that it considered candidates only in order of seniority, in view of the statistical showing made by the plaintiff and the other evidence of discriminatory intent on the part of Western's supervisors, we must reject this contention. D. Defense to Statistics Regarding Layoffs In an attempt to rebut plaintiff's statistical evidence with respect to layoffs, Western claims that in January 1975 it realized that the new layoff provision would result in the laying off of employees with longer seniority and the retention of less 924 senior employees. (Grider, 45: 5516). Western claims that in January 1975, to prevent this from happening, it orally modified the 1974 Agreement with Local 1470 to follow the old practice of layoffs. (Grider, 45: 5534). No witness could testify as to who actually bargained for Western with the Union, or where or when the alleged agreement was made. Grider testified that the modification was "probably" made by him and either the President or one of the officers of the Union. (Grider, 45: 5534). Nor was this "oral" modification ever communicated to employees or subject to ratification. (Grider, 45: 5536). Moreover, on August 13, 1977, Western and Local 1470 entered into a new agreement, effective August 7, 1977, which provides for the layoff of employees first from grades 32 or 202 and entry level grades 33 and 203 before the surplus is identified. This is the same provision, in haec verba, which Western claimed it orally modified in January 1975. (Exhibit P-201). Accordingly, the Court rejects this defense and finds that Western never modified the 1974 collective bargaining contract and that it never abandoned its policy of initially laying off grades 32, 202 and entry levels 33 and 203. XII. KYRIAZI'S INDIVIDUAL CASE We pass now to consideration of Kyriazi's individual case. That is not to say that the evidence relating to her individual case is to be considered separately from that relevant to the class as a whole. To the contrary. It is perfectly permissible for a minority member to establish a claimed act of discrimination against that individual by first demonstrating a general discriminatory intent against the class to which that individual belongs. Such evidence would be a piece in a mosaic which, along with other evidence, could establish the veracity of the individual's claims. The reverse, of course, is also true. Hostility to a class of persons as a whole be it a racial, religious or gender-based class can indeed be inferred by proven discriminatory acts directed against an individual member of that class. Thus, all of the evidence adduced in this case, class and individual alike, is to be considered as a whole in determining the question of liability to Kyriazi and/or to the class she represents. With this in mind, we turn to the specifics of her case. Kyriazi was hired as an engineer by Western in April of 1965, just three months prior to the effective date of Title VII. She brought to Western an impressive catalogue of credentials. A native of Greece, Kyriazi received a B.S. Degree in Economics from the School of Economics and Business in Athens, Greece (1952). After she received this degree, she was employed for approximately five years by the Greek Ministry of Finance and the American Mission to Greece, where her duties corresponded roughly to that of an industrial engineer. In 1958 she arrived in the United States, where she furthered her education. In 1961 she received the degree of Master of Business Administration from Columbia University, and in 1965 she achieved a Master of Industrial Engineering Degree, also from Columbia University. While at Columbia, she maintained a straight "B" average. (Exhibit D-26). An examination of numerous personnel records of Western's employees conclusively demonstrates that plaintiff was, at least by virtue of background and training, far more qualified than many of Western's entry level engineers. Nevertheless, Kyriazi was hired at a salary of $725.00 a month (Exhibit P-153), which she claims was below the salary given male engineers at hire. However, since she was hired before the effective date of Title VII, no evidence was received or even offered concerning this contention. (Pltf's Pr. Finding No. 301). From the very first, Kyriazi's experience with Western was fraught with difficulties. From first to last, her employment history 925 with Western was the subject of much conflicting evidence adduced before the Court. It is Western's position that from the very first, Kyriazi was a most unsatisfactory employee. John Taddler testified that he was a Department Chief in the Finance Division of Western in New York and that he initially recommended that Kyriazi not be hired. He testified that he thought her grades too low. He also characterized her as a "slow learner". Herbert Hornisher testified that from June to December 1965 Kyriazi was assigned to his training group. He, too, found her overall performance poor and did not recommend her for a salary increase in September or in December 1965. It was Hornisher's testimony that Kyriazi had personality problems as well and that he recommended that she be terminated. On the other hand, Edward J. McDermott, a Development Engineer who worked daily with Kyriazi in October of 1965, while agreeing with the other Western witnesses that Kyriazi's work was poor, testified that he found her industrious, sincere, obedient and that he had no personality difficulties with her. Angelo M. Marca took over the department from Hornisher in December of 1965. By that time, he testified, the decision had already been made to terminate Kyriazi. He deferred telling her until after the holiday, and advised her of the decision in January. When she was so advised, Kyriazi became upset. Ultimately, it was determined that Kyriazi would be transferred to Kearny rather than terminated. The plaintiff, of course, denies that she was an unsatisfactory employee while stationed at New York, and while the Court is not prepared to find that she was the veritable model employee that she claims to have been, either then or later, the Court is satisfied that the defendants' evidence concerning her poor performance in New York is not fully creditable. First of all, the position for which she applied and accepted is one which required neither a programming background nor a college degree, or so at least Taddler testified. Kyriazi had three degrees, two of them from one of the most prestigious universities in this country. Taddler's testimony that her grades at Columbia were too low for a job for which no degree is required at all is simply not borne out by the record. The achievement of a "B" average at Columbia by a recent immigrant cannot be so lightly brushed aside. Finally, the testimony of her lack of ability, dearth of aptitude, and inability to communicate in English, central to the testimony of her New York supervisors, is belied by subsequent Western supervisors who at various times rated her work "above expected" (Exhibits D-49, D-51) and "B +". While it is clear that plaintiff does speak with an accent, and that at times she is difficult to understand, this is principally because she is extremely soft spoken. Nonetheless, none of this stood in the way of her obtaining two graduate degrees at Columbia, more than satisfactory ratings from at least some Western supervisors and literally glowing endorsements from subsequent employers. The personality of the plaintiff, her ability to "get along" with others co-workers, supervisors and the like has been challenged by Western. It is central to Western's defense that Kyriazi was a person who acted irrationally, was abusive to co-workers and to superiors, and was in general impossible to work with. Having heard witnesses with no relationship to Western as well as witnesses presently or formerly employed by the defendant, the Court concludes that while Kyriazi was and is a strong-willed person, who understandably and justifiably bridled at the discriminatory treatment she received by the defendant, she was not irrational nor was she unduly difficult to get along with, unless that term is construed to mean that she refused to supinely accede to the male-female stereotyping which confronted her at Western. The evidence in this case establishes clearly and convincingly, the sagacity of Chief Judge Breitel's language in Pace College v. 926 N. Y. City Human Rights Commission, 38 N.Y.2d 37, 377 N.Y.S.2d 471, 480 (1975): It often happens that those who are not supine and fight for their rights will be regarded as troublesome and those disturbed by the struggle would wish that the troublesome one "would just go away." For the reasons which follow, the Court finds that upon her transfer to the Kearny plant, Kyriazi encountered the top-to-bottom discriminatory sex policies of Western; that she refused to function within the sex segregated role expected of an employee at Western; that she actively protested and rebelled against what she perceived to be the unfair treatment of women at Western; and that in return she was denied promotion, discriminated against by her supervisors, unfairly denied salary increases, subjected to odious personal harassment by fellow workers and, finally, fired when, instead of complying with her employer's ultimatum that she seek psychiatric help, she formally complained of sex discrimination. When Kyriazi transferred to Kearny in 1966, as a professional employee of Western, she entered a world populated almost exclusively by men. The statistical evidence received in the class aspects of this case bears this out. During the period from 1967 through 1977, the number of female Engineering Associates ranged from zero to five; the number of males in such positions ranged from 332 to 118.[17] During the period from 1967 to 1971, no female ever held the position of senior engineer; no more than 2 females at any given time held the position of Occupational Engineer; and no more than one female held the position of Engineer.[18] During the period from 1972 through 1975, no woman engineers were promoted.[19] Indeed, as late as 1974 and 1975, the Requisition for Personnel forms still specifically requested that engineering positions be filled by males.[20] 927 Kyriazi entered Kearny as an Industrial Engineer, and remained in that position until February, 1969, when after her repeated requests, she was transferred to Information Systems. She alleges that during these first three years at Kearny she was discriminated against, as a woman, in that she was denied deserved promotions and salary increases because of her sex. In support of her claim she has marshalled an impressive statistical comparison between her career and those by males similarly situated. These comparisons support and lend credence to her claim. (See Pltf's Pr. Findings Nos. 302-315). Western on the other hand, contends that Kyriazi performed poorly on the job, and that "these paper criteria" cannot establish the relative value of employees. While there is obvious value in the kind of analysis which Kyriazi has presented, it is also true that there are obvious limitations on its worth. For unlike statistics based on a large sample, where individual idiosyncrasies will even out, the comparison of one individual, on the basis of paper credentials alone, as against similar credentials of others, is of more limited value. While this evidence is certainly therefore not conclusive, it does appear to corroborate her claim of having been treated differently from her male colleagues. There is, however, more direct evidence which supports her claim that she was treated in a discriminatory manner. Western's claim that Kyriazi's work and performance were not satisfactory is belied by the ratings which were given her by her supervisors at the time. In September of 1966 her work was rated "above expected" (Exhibit D-49) and again on February 27, 1967 she received the same evaluation (Exhibit D-51). This is obviously not the sort of job evaluation one expects an unsatisfactory employee to obtain. Having sustained this rating of "above expected" for two years, Kyriazi was promoted and transferred. In about October of 1968 she came under the direct supervision of Ralph J. Imandt. She remained under Imandt's supervision until she was transferred to Information Systems in February of 1969.[21] It is clear that relations between Kyriazi and Imandt were not good. Kyriazi claims it is because Imandt did not want women working for him. She testified that he underutilized her as an engineer, told her that she would never be rated more than "C", and advised her that as a woman she should become a school teacher, "the best profession a woman can have." (Tr. 2442). It was her testimony that Imandt made life so uncomfortable for her, that by March of 1968, just three months after she had come under his supervision, she applied for a transfer. Imandt denies that he mistreated her because of her sex. While Western now claims that it was "Imandt's opinion that Kyriazi did satisfactory work and had the potential to progress to higher ratings" (Def's Pr. Finding No. 889), it was his testimony at trial that her attitude and personality were unsatisfactory and that she had a "chip on her shoulder." Having heard the testimony and having observed the demeanor of both witnesses, the Court credits Kyriazi's testimony and does not credit Imandt's. In addition to the Court's observation of the demeanor of these two witnesses, the surrounding circumstances appear to corroborate Kyriazi. Before addressing these matters, a word must be said about the rating system used at Western. Professional employees at Western are periodically appraised, and, based on their job performance, are graded, A, B, or C, or "outstanding", "above expected", or "expected". (Exhibit P-91(b)(2)). During Kyriazi's tenure at Western, there was a policy of curving these evaluations, so that only 25% could be rated A, 50% at B, and 928 25% at C. An employee's rating served as a basis both for promotions and raises. (Exhibits P-91(c)(3), (4), (5)). When Kyriazi first came under Imandt's supervision, her rating was "N", meaning that she was a new employee who had not yet been rated. Although Kyriazi had been rated "above expected" before her transfer in 1967, Imandt considered this to be a grade of "C" (Kyriazi, 21: 2436) and he treated her as a new employee. (Imandt, 28: 3435). In early 1968, Kyriazi complained to Imandt about her rating, and also about the way in which women were treated in Western and the industry. She also told him that the failure to give her challenging assignments was a form of discrimination. (Kyriazi, 21: 3450). It is clear that Kyriazi's complaint to Imandt about job discrimination against females alarmed not only Imandt, but Imandt's superiors as well. The fact is that although Kyriazi had worked for Imandt for only three months, and notwithstanding Western's assertion now that Imandt thought her work satisfactory and promising, Imandt, on instructions from his superiors, began to keep a running written account of his conversations with Kyriazi. The first such entry is dated March 7, 1968, and refers to Kyriazi's earlier complaint of being unfairly rated and her prompt request to be transferred. (Exhibit D-74). Imandt's testimony, with its internal inconsistencies, as to the genesis of D-74 and his evaluation of Kyriazi is itself noteworthy: THE COURT: They wanted a record, is that it? THE WITNESS: Yes. THE COURT: So I gather then that you don't have a similar memorandum for each one of the people that worked for you but rather you created this one because of the difficulties with Miss Kyriazi; is that it? THE WITNESS: I had notes of other conferences with people. THE COURT: But nothing like this document, D-74? THE WITNESS: No. THE COURT: That was created because of the difficulties with Miss Kyriazi, is that it, or so you believed? THE WITNESS: So I believed. * * * * * THE COURT: In other words, you had some idea back in '68, then, that there might be some difficulties? THE WITNESS: Well, she had appeared so unhappy over the situation that she was working in and the fact that she told me she was going to go up the line, I thought it wise to make some notes. THE COURT: She also complained to you about sex discrimination, didn't she? THE WITNESS: Yes. In fact, she was very much I would say almost like walking around with a chip on her shoulder waiting for somebody to knock it off to prove that she was being discriminated against. THE COURT: How many times and how many conferences did she mention sex discrimination to you? THE WITNESS: That I wouldn't know. THE COURT: Was it a frequent occurrence? You say she walked around with a chip on her shoulder. THE WITNESS: I would say quite she never missed an opportunity to bring it up. THE COURT: And when did she begin to complain about sex discrimination to you? THE WITNESS: That I don't recall. THE COURT: Was it from the very first time that she began to complain about anything, or was it later on? 929 THE WITNESS: I would say yes, it was something was in the back of her mind at all times. * * * * * THE COURT: What was the nature of her complaint about sex discrimination? THE WITNESS: Well, that women in general were not treated on the same basis as men were. THE COURT: In what way? THE WITNESS: Well, they weren't given the opportunity to do the kinds of jobs that men were assigned to; a feeling that even in the grading or ranking order this had a bearing on it. THE COURT: This was back in '68. She was making these complaints then? THE WITNESS: Yes. THE COURT: What responses did you make to her? THE WITNESS: I assured her that it made no difference what the sex was. If a person had the capabilities of doing the job, they would be given an assignment. THE COURT: At that time was there a sex preference designation box for personnel requisition form? THE WITNESS: I believe there was, yes. THE COURT: Did you use that form as a department chief? THE WITNESS: I would have to say yes. THE COURT: When you used it, did you fill out that box indicating a sex preference? THE WITNESS: I would have to say yes. This was a custom not only at Western Electric but throughout industry. * * * * * * THE COURT: And what preference did you express when you expressed it? THE WITNESS: I'm not too sure I'm not too sure that we did check it off as a male operator or a male engineer. THE COURT: Perhaps I'm wrong. I thought that you just indicated to me that you did express a preference. THE WITNESS: I did. I'm not too sure. I'm a little fuzzy. THE COURT: You mean it may have been that you expressed a preference for women? THE WITNESS: I'm sure I didn't express a preference for women on the job. It may have been either. THE COURT: It may have been what? THE WITNESS: We were interested in a qualified engineer regardless of sex. THE COURT: Yes, I understand, Mr. Imandt. But I asked you whether or not you used the boxes on the sex preference? THE WITNESS: On second thought, I don't think I did. THE COURT: You don't think you did? THE WITNESS: No. THE COURT: Do you remember one way or the other? THE WITNESS: Not definitely, no. THE COURT: In other words, if I understand you correctly then, you viewed her complaints about discrimination based on sex as being without basis; is that it? THE WITNESS: Right. THE COURT: And she was complaining, I gather, about it more than just the one area that she was working in. She was speaking about a plant-wide condition to you, is that right? THE WITNESS: That was her philosophy, yes. THE COURT: Her philosophy? THE WITNESS: That women were discriminated against and not given the opportunity. THE COURT: You say that is a matter of philosophy? THE WITNESS: Yes. THE COURT: What do you mean by that? 930 THE WITNESS: I guess she was overimpressed with the fact that this was the case throughout industry, not just Western Electric. THE COURT: What do you mean "overimpressed"? THE WITNESS: Perhaps that was not the right word. It was deep in her mind and she never missed an opportunity to bring up a point on it. THE COURT: When you say "her philosophy", then you mean the fact that she pointed out that in her view women were disadvantaged? THE WITNESS: Yes. THE COURT: At Western Electric? THE WITNESS: Yes. THE COURT: And, indeed, in American industry? THE WITNESS: Yes. THE COURT: Did you view that as a claim without basis? THE WITNESS: No, because I would have to agree with her to a certain extent, that throughout industry this was the case. THE COURT: Then when you say "a matter of philosophy, chip on the shoulder," and the like of that, are you meaning to imply that she was being irrational or unreasonable about it? THE WITNESS: I would say she was to the point of being irrational about it. THE COURT: You mean she was concerned about it to the point of irrationality? THE WITNESS: Right. * * * * * (Tr. 3418-3425) Again, the objective evidence confirms the accuracy of Kyriazi's complaints to Imandt. It is interesting to note that the Kyriazi-Imandt confrontation concerning sex discrimination at Western began in early 1968 and carried forward throughout that year. The evidence in this case establishes that as late as 1974, six years after her protests to Imandt, and some three years after Kyriazi had been fired these sex preference personnel forms remained in full use at Western: Summary of 1974 Requisitions Containing Sex Preferences There were 9 Section Chiefs or Department Chiefs requested. All requests were for males. There were requests for 12 Craftsmen. 11 requests were for males; the 12th was for a female Waste & Water Treatment Operator. There were 23 requests for Grade 37 openings. All requests were for males. There were 41 requests for Grade 36 openings. All requests were for males. There were 61 requests for Grade 35 openings. 60 requests were for males; 1 request was for a female. There were 85 requests for Grade 34 openings. 76 requests were for males; 9 requests were for females. There were 60 requests for Grade 33 openings. 52 requests were for males; 8 requests were for females. There were 96 requests for Grade 32 openings. 9 requests were for males; 87 requests were for females. All 500 series Clerical requests were for males. All 200 series Clerical requests for grades 209 and above were for males. Not all organizations shown on the requisitions were listed by Western in its answers to Interrogatories. (Exhibit P-114). It is, therefore, plain that Kyriazi's complaints to Imandt about the status of women at Western in general, and her condition in particular, were not the product of an irrational mind. We also consider some of this evidence infra in dealing with Western's contentions that Kyriazi is not a satisfactory representative of a class comprised of all female employees at Western. As a result of her confrontations with Imandt beginning in early 1968, Kyriazi attempted to transfer out of his department 931 to work with computers in Information Systems. There is ample evidence in the record that those in authority in Information Systems told Kyriazi that they had no openings; they in fact did not want her; that she had been "turned down" both by Department Chief Wilser (Exhibit D-74b), and by Wilser's boss, Assistant Manager Wertz. "Imandt contacted G. C. Wertz to see if he would reconsider taking her into his organization. He asked to see her personnel records, which were given to him. After reviewing these records and discussing the situation with J. Wilser he concluded he could not find a place for her in his organization." (Exhibit D-74(b), emphasis added). The evidence is clear that Wilser and Wertz did not take Kyriazi but not because there was no opening for her. (Tr. 2604-6, 3400; Exhibit D-74(b) page 3). In fact there were such openings. (Tr. 4534).[22] It is impossible, looking back years later, to determine whether Wilser and Wertz did not want her because she was a woman or because Imandt had reported that she was a troublesome woman,[23] but it is plain that she was not wanted and that she was put off by them on the false ground that there was no available opening. This situation with Imandt continued throughout 1968. Finally, in December, Kyriazi went to Imandt's boss, McCaffrey, Assistant Manager of Industrial Relations, requesting to transfer to Wertz's organization in Information Systems. Imandt then prepared a letter for McCaffrey's signature, in order to arrange a transfer to Information Systems. That letter (Exhibit P-177) begins as follows: Miss K. Kyriazi, an Industrial Engineer with 34 months experience in our organization, has expressed a desire to be transferred to an area where she can make more effective use of her educational background in the field of computers, economics and statistics. There then follows her curriculum vitae, including her three degrees. Of her service with Western at Kearny, the letter reports ... she was transferred to Kearny as an Engineer in the Industrial Engineering Organization where she is presently employed. During this period she has performed satisfactorily as an Engineer associated with Wage Incentives, Maintenance and Administration of Inspection and Merchandise Incentives. Character of Work Present Assignment: In her present assignment, Miss Kyriazi has demonstrated ability to organize her work effectively and promote good relations with the organization for which she is responsible for setting Wage Incentive Rates. She has developed a computer program for setting rates for the Box Shop in the Merchandise Organization. 932 It is recommended that you review this employee's qualifications for openings in your organization. G. L. Mc Caffrey3210 (Emphasis added.) This memo was sent to Assistant Manager Wertz on January 8, 1969 and it was arranged for Kyriazi to be interviewed by Wertz. At trial it was Kyriazi's testimony that at that interview Wertz insulted her and made it plain to her that he did not want "girls" because "they got married and pregnant." (Tr. 2250). She testified to similar treatment from one of Wertz's subordinates, Mr. Greco, with whom Wertz had arranged a follow-up interview. (Tr. 2251-3). At trial, both Wertz and Greco emphatically denied this. Kyriazi's version does have corroboration. It is undisputed that immediately following her interviews with Wertz and Greco, she went to their superior, T. Arthour, and complained about the treatment she had received: Q. [MRS. VLADECK] What did you do after you had left Mr. Greco's office? A. I told him that I don't consider this a regular interview and I have to see someone higher in management. So I left his office and I went directly and I saw the second Supervisor from the top, Mr. Arthour. Q. Is that A A. A-r-t-h-o-u-r. * * * * * * THE COURT: Let me see if I understand you, Madam. THE WITNESS: Yes. THE COURT: You went immediately to this Mr. Arthour to consider about what Mr. Greco had said to you; is that it? THE WITNESS: It was a combination of what Mr. Wertz and Mr. Greco I mean, I went to complain because Mr. Wertz and Mr. who was the Assistant Manager, and Mr. Greco, who was one of the Department Chief, they were telling me that they don't want girls. THE COURT: I mean, that's the purpose THE WITNESS: The treatment; yes, sir. THE COURT: you went that very day? THE WITNESS: Immediately. Because it was not so usual and I was trying for a year for this transfer. * * * * * * A. Well, I told him that "Mr. Arthour, for a year now I try to be transferred to the Information Systems and Mr. Imandt is telling me that he makes contacts, the necessary contacts, but he cannot find any opening for me, while I know that they hire and they transfer employees to this organization." Then I described to him my conversation with Mr. Wertz and my discussion with Mr. Greco. And I told them that, "At least you should warn them not to be so explicit about speaking about girls and not wanting them; and things like this. So I would greatly appreciate if you would intervene and to let me transfer." He immediately did the transfer and he told me that he's going to order all the applications of the women who had applied before, and they were not processed, to be processed, and have more women hired in the Information Systems. Q. [MRS. VLADECK] Had you told him that there were applications of women that were not being processed? A. Yes. Because Mr. Wertz told me. Q. Now that was during your initial interview with Mr. Wertz? A. Yes. Q. I didn't hear you tell us that. What had Mr. Wertz told you about other women's applications? * * * * * * 933 A. He told me there is no future for a woman in his organization and he gave me the example of two programmers, two women programmers who left his organization because they realized it. After that he told me that "After all, we have a lot of applications from women but we don't even process them." Q. And it was that that you reported to Mr. Arthour? A. Yes. Q. Was that part of your conversation with Wertz that you were referring to? A. Yes. Q. Now, you say Mr. Arthour ordered that you be transferred? A. He was upset, obviously, and he told me not only are you going to be transferred, but I'm going to give an order that all these applications are going to be processed as quickly as possible. Q. How long after the conversation with Mr. Arthour were you transferred? A. Immediately. Immediately. * * * * * (Tr. 2254-2259) Kyriazi's account of her interviews with Wertz and Greco is corroborated by notations made by her Assistant Manager McCaffrey on a document found in the files of Western. Thus, plaintiff's Exhibit P-177a contains handwritten notations initialed "G.L.M." which are McCaffrey's initials. The notations set forth the schedule of Kyriazi's interviews in Information Systems as follows: Interviewed by Wertz 1/20 & 1/23 Bagden 1/20 Hayes 1/21 Greco 1/22 The handwritten statements continues: As a result of these interviews she spoke to T. Arthur on 1/22. Not satisfied with interview by Greco. Arthur promised her he would do something. Also Wertz's second interview was to apologize for the treatment she was getting in her interviews by computer supervisors. This document substantially corroborates Kyriazi's claim that she made an immediate and timely complaint about the conduct of Wertz and Greco, and the immediacy of that complaint fully corroborates her claim, at trial, that she had been abused by both men. Having heard all three witnesses Kyriazi, Wertz and Bagden and having reviewed the documentary evidence, the Court fully credits her account. Such was the background of the inauspicious beginning of Kyriazi's employment in Wertz's organization. Wertz assigned her to work for Department Chief Wilser who, we have seen, had initially rejected her nearly one year earlier. From her earliest contacts with Wilser, on through her interviews with Wertz, Bagden and Greco nearly a year later, Kyriazi made it plain to supervisors in Information Systems that she desired and was equipped to do work as a systems designer rather than the less sophisticated work of a programmer. (Exhibit D-74b). At trial there was substantial dispute concerning the terminology of these two endeavors designer or systems engineer versus programmer but suffice it to say that the Court is satisfied that there is a difference in the level of functions between the two and that Kyriazi, to the annoyance of her superiors, felt that she was qualified by reason of her education for the more sophisticated computer work. It is apparent that Kyriazi was sensitive that at Western there was a difference in the level and the nature of the work assigned to men and women employees, and that she was determined that such artificial sex based classification should not be applied to her. It is also apparent that her perceptions were not the manifestations of a disordered personality, as Western would have it, but the product of perceptions which were, in terms of the working conditions 934 of females at Western, essentially accurate. Immediately upon her assignment to Wilser, who was located on the 5th floor, Wilser sent her to the 3rd floor to work under the supervision of a fellow department chief, Ralph Boyd. Her assignment, on its face, was to act as a liaison between Wilser's and Boyd's departments in connection with a project then being run by three men within Boyd's department: James S. Snyder, team leader; and Robert Armstrong and Shen Tai "Teddy" Liu. Her experience with these three men form the core of her claim for tortious interference with her work. It was Kyriazi's testimony that these three young men teased and tormented her. That they made loud remarks concerning her marital status, and trumpeted their speculations and even made wagers concerning her virginity. According to Kyriazi, they would tease her by deliberately blocking her path as she tried to move in the aisle. This harassment, she testified, spilled over into her working relationships with them, where they treated her with contempt and ridicule and attempted to denigrate her position as a professional. The three men concerned each testified and denied any such actions on their part. To the contrary, it was their testimony that it was she who harassed them and that, as a professional, her work was substandard and inept. Again, we have a piece of objective evidence which sheds light on the controversy. Before we deal with it, however, it is necessary to give a physical description of the plaintiff. She is a very large woman, and, as she testified, weighs nearly 200 pounds. It was her testimony that, as a part of the attempt by these three co-workers to humiliate her, they created an obscene cartoon and that she saw Armstrong place it on her desk. She retained a copy of this cartoon, and it was received in evidence as Exhibit P-138: A terrible accident happened at the Eyeful Nudist Colony. A very heavy lady weighing 312 lbs., by accident sat on a little man of 100 lbs. (What a disaster!) If you think the position of the little man was obvious, look below! I hope you will never be in such a predicament! It was Kyriazi's testimony that she well understood that this cartoon was designed to embarrass and to humiliate her, as a woman. Western, while certainly not denying the existence of the cartoon, challenges her perception of the direction of the cartoon's thrust, claiming that "it is the man at whom the cartoon is aimed." (Def's Pr. Finding No. 940(a)). However, a mere glance at the cartoon and its inscription, along with what we know to have been the relationship between the parties, demonstrates the implausibility of Western's assertion. It is obvious to the Court that this cartoon was created, disseminated and ultimately thrust upon this plaintiff to humiliate her as a woman. Kyriazi testified that she saw Armstrong place it on her desk. Armstrong denies it. 935 He claims to have found it in his desk and passed it on to Snyder. He claims not to have understood it at the time. His testimony is corroborated by Liu, who claims to have found it on his own desk, and then to have placed in on Armstrong's, and even to have seen Armstrong place it on Snyder's. Snyder claims that he found it on his desk and threw it in the trash where, presumably, Kyriazi is supposed to have fished it out. All three men deny any knowledge of the source of the cartoon. The Court does not credit the testimony of these three men. There can be no doubt that this indecent drawing was created exactly by whom we cannot now ascertain and passed around by all three men to humiliate the plaintiff. It may indeed be true, as they claim, that the plaintiff was not at all that she should have been as a programmer certainly the Court is not prepared to find that she was as perfect as she claims but the Court finds in Exhibit P-138 an indecent attempt to humiliate plaintiff as a woman as part of an overall effort by them to make life generally unpleasant for her. The Court further finds that Western supervisors at Kearny Wertz, Boyd and Wilser were well aware of this harassment to which Kyriazi was subjected, but that they chose to largely disregard her complaints and totally failed to take any action against the men who harassed her. This, the Court finds, exacerbated the situation. Aside from the implicit encouragement of such harassment which the superiors' knowing disregard engendered in Kyriazi's male co-workers, such conduct by her superiors was infuriating to Kyriazi, and justifiably so. When they totally disregarded Kyriazi's complaints about the cartoon, and the boisterous speculations about her virginity, she was left with the understanding that her superiors were discriminating against her and in favor of her male co-workers. While the three superiors do not deny that the cartoon was disseminated in or around April of 1970, nor that they made no inquiry into these matters until August of 1971, three months before Kyriazi was fired, they each deny that Kyriazi complained to them in the spring of 1970. The Court finds that Kyriazi did complain to her superiors in the spring of 1970. It is plain that she did not take this treatment supinely, but vociferously and repeatedly complained. Not only did she complain to Boyd, for example, she even complained to his secretary, Ms. Allen, and Ms. Allen testified that she herself told Boyd about the obscene picture and just how upset Kyriazi was. (Tr. 4713-14). Indeed, on October 1, 1971, in a joint interview of Kyriazi by Wertz and Wilser, which was recorded by Wertz, in which Kyriazi was given a last chance before termination, Wertz said in response to Kyriazi's complaints about Armstrong, Snyder and Liu: ... you complained and we as soon as we knew about it we took action and we moved you. Now, this was more than a year and a half ago. (Exhibit D-225(a); Wertz, p. 23) (Emphasis added). It is plain that Wertz, during this conversation, acknowledged the receipt of Kyriazi's complaint, and explained what he did to solve her problem; moving her from Boyd's group on the third floor back to Wilser's on the fifth floor. His attitude towards her complaints was simply that a woman must expect such things in a man's world. Perhaps his attitude is best expressed in his own words, also tape recorded during the interview on October 1, 1971: Cleo: [KYRIAZI] No, it's not correct, sir. GCW: [WERTZ] It's, it's maybe it's cruel humor ... Cleo: And when when ... GCW: ... but I would accept it as being ... Cleo: ... and when, last month, let's say, which aggravated me again, I met the fellows on the aisle. They said: "Come now, have it easy, Jim Snyder is not the old one. He's changed. Now, nobody bothers you. Let's leave". Let's leave? But Teddy Liu is B + and I am C ± and I have 936 seven years and I have worked. Everybody's laughing with me, you know. I don't have ... Do you think that I have any prestige like before around here? Do you think that anybody's going to respect me like before? GCW: Cleo, only ... Cleo: For me the only thing is to .. GCW: ... what you are doing to yourself. Cleo: . . . to go out. This is the only solution. GCW: I don't think it's the only solution. Cleo: Yes, sir. Because nobody would respect me. Who young man now can respect me if he knows that he can call me if I'm a virgin or not? You know, give me dirty pictures and go through with this. And this dirty picture it was a continuation of their discussion about the subject which we are discussing now that I told. GCW: I tracked that down as well as I might and . . . * * * * * (Exhibit D-225(a), page 27) (Emphasis added). GCW: We moved you to the fifth floor. Cleo: O.K. Sir. Forget about me. GCW: We corrected that situation. Can't you put it to bed? (Exhibit D-225(a), page 47). GCW: Cleo, only because you are the one, you brought this up in my office here at least a dozen times in the last year and a half. Cleo: Sir, if I didn't bring this, you would still have me, you know, have the opinion which you had at the beginning. You remember what you told me? GCW: What? Cleo: You told me that I should be complimented that these young that young men pay any attention to me and these boys they were making a horse play, you know. And, therefore, Mr. Wilser told me, I told him "Am I a silly woman?" And he said, "In a way." So if I didn't insist, you would still have the old opinion for me. GCW: The things that you mentioned, Cleo are things that happened in a man's working world every day in the week. Cleo: No, no, no, no sir! GCW: Yes. (Exhibit D-225(a), page 48) (Emphasis added). What emerges from all of this is that in April and May of 1970 Kyriazi did complain to her superiors about the sexist conduct of her co-workers as she claims she did; that they made no effort to investigate her complaint; that she was regarded as an oversensitive woman who should be expected to meet and endure all this in "a man's working world." Wertz's later statement to her that he had tried to "track down" the comments about her virginity and the origins of the obscene picture, that he had moved her to the fifth floor to help her were both outright falsehoods. The fact is that no attempt was made to investigate her complaints in April, May or June of 1970, before she was moved. Indeed, her superiors now take the position that they then knew of no such complaints. The only investigation that occurred was in, as we shall see, August of 1971, shortly before her termination, which was motivated by their desire to clean up the record. As to her move from the third floor to the fifth floor in June of 1970, this was done at Boyd's request because of his complaints about her failure to get along with her co-workers. (Exhibit D-77). The Court finds that in June of 1970, Boyd, Wilser and Wertz, with full knowledge of her complaints, removed her based on their own conclusion that she was unable to get along with Snyder, Armstrong and Liu. Boyd, continuing the tradition begun by Imandt, prepared a confidential "Memorandum for Record". This Memo, Exhibit D-77, ultimately incorporated in Kyriazi's personnel record, was used in part to justify her ultimate termination (Exhibit D-109), and is a deliberately false and one-sided account of the relationship between Kyriazi 937 and her male co-workers.[24] That Kyriazi's supervisors should, in 1971, represent that she had been moved in 1970 to save her from the harassment of co-workers, while knowingly placing in her records a memo attributing the move to her unjustifiable rages and failures to accept guidance is, at least to this Court, grotesque. Wertz's attempt to "track down" the insults to Kyriazi were, the Court finds, nonexistent. Neither Armstrong, Snyder nor Liu were ever questioned by any supervisor about any of these incidents until shortly before Kyriazi was fired. Even then, they were questioned only because Kyriazi kept complaining to her supervisors. She felt that she had been unfairly treated by them. She felt that this unfairness spilled over to the way in which they appraised her work, graded her performance, failed to promote and even underpaid her. Her supervisors, for their part, continued to make their private memos for the "record" as they documented a case against her. Thus, when Kyriazi made one of her frequent complaints to Wertz concerning her treatment, including promotional and salary, Wertz made a private memorandum for the record: (PRIVATE) August 5, 1971 MEMORANDUM FOR RECORD Re: Kyriazi, Kyriaki Miss Kyriazi stopped at my office at 9:30 a. m. with the question of what I had heard relative to her conversation with Mr. Clark. I told her that I had heard nothing. She said that she could not stop with the people who had wronged her. I asked who she referred to, and she replied that it was those silly boys on the third floor. She then said if it could not be settled here it would be settled outside. I asked what she meant, and she said she referred to the courts. I then suggested it was difficult to come up with an answer to a question which is not clear, since I had assumed that her grievance was one of disagreement with management's performance appraisal of her. She replied that it was both this and the harassment which occurred on the third floor. I told 938 her I considered this matter closed because corrective action had been taken in June, 1970, to move her to the fifth floor after she had complained to me. She nodded agreement, but added that one is now an engineer, one is an "A" and one is a "B +". I indicated that if her information was correct, which I doubted, it had no bearing on either of her questions, and I would not discuss other individual appraisals with her. Miss Kyriazi then asked if it was true that a Member needed to be appraised outstanding for 2½ years before qualifying for Senior. I reminded her that she had asked me that question twice before, and that in order to qualify for promotion to Senior, a Member required a minimum of two years appraisal as outstanding. Miss Kyriazi asked me what I was doing about it. I told her I was doing nothing about it. We moved her from the third to the fifth floor in June, 1970, to eliminate a personnel relations irritation which she complained about at that time, and we reviewed her rank order and appraisal earlier in 1971 when she expressed dissatisfaction with it. Our conclusions were that the "B" appraisal is correct. She guessed that management had to protect itself. I told her that management had nothing to protect in this case. I suggested that nothing further could be gained by continuing the discussion. She agreed and left. Original Signed By G. C. WERTZ G. C. WERTZ 3450 GCW:MBS (Exhibit D-92) (Emphasis added). This memo is important for several points. First, it again demonstrates that Kyriazi did complain of harassment in the spring of 1970. Second, it demonstrates that her supervisors knew that she intended to sue. In spite of Wertz's notation at the end that management "had nothing to protect in this case", he ordered Boyd to conduct an inquiry into her claim that she had been harassed by Snyder, Liu and Armstrong. This order was not motivated by any concept of justice, but instead by a desire to clean up and protect the record in light of Kyriazi's professed intention to sue. Boyd dutifully caused an inquiry to be made, and made a written report to Wertz, obviously for the "record". For the first time, Armstrong, Snyder and Liu were interviewed, but Kyriazi was not. Based upon this "investigation", Boyd accepted their account. No effort was made to find the source of the cartoon. No mention was made of the jokes concerning Kyriazi's virginity. The record having been made, and the company protected, the memo closes with Boyd denying that the cartoon incident was brought to his attention.[25] It has been necessary to delve into a detailed factual analysis in order to pierce a cloud of self-serving memoranda, prepared by supervisors who anticipated litigation, and who were preparing for it even while 939 they led Kyriazi to believe that they would meet her problems and continue her employment. What emerges is a picture of a woman who in fact was angry, who did in fact accost her superiors, and who did eventually become difficult to deal with. The fact is, however, that these manifestations, unpleasant and even intolerable in the normal working relationship, were understandable and even justifiable given their provocation. Kyriazi felt, and the record supports her, that she was treated neither fairly nor regarded seriously by her male co-workers and superiors. This she found infuriating. There is no doubt she responded in kind, and that this caused a further deterioration in her position. When her male co-workers jested over her virginity, or the lack of it, she responded by terming one of them a homosexual. She had no right to do that; she was, as she should be, reproached for such conduct. But Wertz and Wilser, who were so outraged at her having called a male employee a homosexual, cared nothing for sexual taunts directed at a female employee. These they said should be expected in "a working man's world." When Kyriazi was brought face-to-face with Wilser and Wertz in the tape-recorded conversation of October 1, 1971, and was confronted with the claim that she made derogatory remarks about her male co-workers, she replied that she was merely responding in kind. Wertz then suggested that she was suffering from a "mental disability". Shortly before the meeting, Wertz had made an appointment with the company doctor a general practitioner because he felt Kyriazi needed psychiatric attention. She put aside this suggestion, indicating that she thought her supervisors needed that attention more than she. Wertz was careful to note this conversation in yet another "memorandum of information", labeled "private". (Exhibit D-96). By October 1, 1971, Wertz's resolve that Kyriazi undergo psychiatric examination had hardened to the point that he made it a condition for her remaining at Western: GCW: The fourth point I want to make, Cleo ... Cleo: Yes, sir. GCW: ... is your maligning of other people. Cleo: Maligning? What is maligning? GCW: Maligning. That means, in your terms, being disrespectful of their characters, of their talents, of their morality. You have even gone so far as to refer to someone else as being a homosexual. Cleo: Well this is ... GCW: This is maligning an individual .. Cleo: I don't mal- GCW: ... particularly if it is not true ... Cleo: I'm not ... GCW: ... which it very probably isn't. Cleo: . . . maligning anybody, sir, because it was something which downstairs Bob Armstrong and Teddy Liu used to joke around and poke their ribs and laugh. I'm not, I don't know about these things and I'm out of everything and this is the reason I was telling you. I (inaudible). GCW: What they have done hasn't bothered me, Cleo. Cleo: Well, it bothers me. GCW: But they have not referred to someone else as being a homosexual ... Cleo: Well GCW: . . . you have. Cleo: Well, excuse me, am I a virgin or not? If they have the right to discuss of this, why I should not have a right to counter-attack and cover myself. Do you understand? GCW: No, I don't understand, Cleo. Cleo: Well, I understand myself. And nobody use to to cover me. This is the reason I wanted to move from down because I am not born to live around in such a an environment. This is the reason sir ... GCW: Cleo, but this happened ... 940 Cleo: ... it came to my nerves. GCW: ... a year and a half ago .. Cleo: No no it runs after me. GCW: You have been moved to the fifth floor. Cleo: It runs after me sir. It runs after me. GCW: Well, Cleo it has not come to my attention but it has come to my attention ... Cleo: Sir I told you one thousand times my, whatever I say come to your attention and whatever these young men did to me for a long period of time didn't come to your attention. What else you want me to do? If I didn't speak, loudly, sir, by now, they would have me down playing like a ball with me. GCW: Cleo . . . Cleo: But it is not my morality. GCW: ... you complained and we as soon as we knew about it we took action and we moved you. Now, this was more than a year and a half ago. Cleo: This was after me, sir. You moved me out physically but you didn't cut my links. This is my organization, sir. I'm working with them. * * * * * * (Exhibit D-225(a), pages 21-23). GCW: I'm talking about what has happened within the last month. You have referred . . . Cleo: I'm repeating. GCW: ... to other employees about another employee's being a homosexual. Cleo: Your're wrong. I didn't say this. I say, in all probability. And it was what down they informing me. For this reason I wanted to move out and for this reason you saw me fighting like a fish in a net. Go out. What is my life? GCW: Cleo, you have been out for over a year and a half. You are doing this, this month, now. * * * * * * (Exhibit D-225(a), page 30) GCW: Well, it's more than that, Cleo, and that's why we're in here this afternoon. I mentioned four points and the fifth one I hesitate to mention but I'm going to mention it because we have mentioned it to you before and we are not psychiatrists, we are not medical people, but just as friend to friend ... Cleo: Yes, sir. GCW: ... we have advised you in fact I scheduled a meeting with our Medical Department which you ... declined to accept and you have ignored our suggestions to get medical and psychiatric help. We feel you need help. Cleo: Really? This is your opinion sir? GCW: This is simply my opinion and the opinion of our supervision generally. Cleo: Really? Why you don't get the other people around me to get a psychia psychiatric help? What is wrong? GCW: We're discuss discussing you, Cleo. Cleo: Really, me? I'm discussing you at the same time. GCW: I ... Cleo: We are discussing ourselves, sir. O.K.? GCW: All right, let me let me answer your question. Cleo: Yes, sir. GCW: If you're directing it to me, and I accept your question. Why don't I get psychiatric help instead of you. Cleo: No. GCW: Well, if this were anyone else, all right? Cleo: Yes, because GCW: If I was in a position ... Cleo: Yes. GCW: ... of suspecting that my supervisor and his supervisor was having people spy on me, all right? If I was felt it necessary to disrupt the people around me by talking about the way the Company had injured me and my problems with the Company and if I felt it necessary to 941 malign my fellow employees by suggesting that they are homosexuals. Cleo: You are wrong. I didn't say this. GCW: . . . I would search out medical help, Cleo. * * * * * GCW: Could you let me finish, please. Cleo: And you are men and you should not have done this to a woman. This is what's killing me. GCW: That is my fourth point and fifth, Cleo. If you do not take our advice and seek medical treatment or psychiatric treatment, I feel it will be necessary to terminate you. Cleo: Do as you like, sir. * * * * * * GCW: Everybody, none of the things that I'm talking about here show any disrespect for you. These are actions that you are taking showing disrespect for other people, your supervisor, other supervisors, the people around you, other employees on the third floor. Cleo: You are wrong, I never . . . GCW: A disrespect for good judgment, Cleo. Cleo: Please, bring . . . I'm I'm seven years with Western Electric. Bring someone outside the three boys down who must, I'm scared to death and I suspected of low morality standards for a long time for this reason. It was not my atmosphere and I was trying to move out. Move him out, move these three men out, and Mr. Wilser, you and Mr. Boyd cover it, then, and Mr. Groshans reporting, and I don't have anything else with anybody in the Company. GCW: I don't know that you're saying, Cleo . . . (Exhibit D-225(a), pages 40-45) (Emphasis added). Although Wertz professed not to understand Kyriazi, her meaning is clear and, when read against the proofs of the case, accurate. It is her inarticulate protest that Boyd, Wilser and indeed Wertz himself had moved her from the third floor, even though she had been the victim, when instead they should have removed those who had published the indecent cartoon. It is almost Kafkaesque that Kyriazi was deemed in need of psychiatric attention for suspecting that her superiors were secretly acting against her, when the supervisors' own secretly recorded memoranda reveal that they were doing just that. In sum, it is plain that Western knew since at least early August of 1971, and probably earlier, that Kyriazi intended to sue it. (Exhibit D-87). Indeed, Kyriazi filed her first charge with the New Jersey Division on Civil Rights on August 24, 1971. From at least early July of 1971 and continuously thereafter, Western supervisors, particularly Wertz, Wilser and Boyd, prepared a series of self-serving and often inaccurate memoranda, with an eye to the litigation which they knew was almost certain to come. It is clear that it was their strategy to depict Kyriazi as divisive, disruptive and close to demented. The ultimatum, on October 1, 1971, that she submit to psychiatric care was designed to force her to leave. When, on November 5, 1971, Kyriazi told Wilser that she had already filed charges against Western (Tr. 2358), and when this was confirmed by a co-worker who had seen the letter (Tr. 2358-9), Wilser and Wertz decided to terminate her. Thus, on November 11, 1971, a memorandum (Exhibit D-109) justifying termination was prepared and transmitted to higher officers of Western. This memorandum of justification is a compendium of the memoranda privately prepared by Boyd and Wertz. Indeed, it quotes extensively from Boyd's memorandum of June 15, 1970, explaining the reasons for the transfer of Kyriazi from the third floor to the fifth floor. This memorandum is unfair, one-sided and inaccurate. It mentions nothing of her harassment by male co-workers, her complaints, the obscene cartoon, nor does it refer to Wertz's demand that she seek psychiatric help. The Court finds that Kyriazi has established that she was fired when her employer discovered that she had filed her complaint. 942 While it is likely that she was about to be fired in any case, and that her supervisors were laying the groundwork for that act, her actual termination was triggered by their discovery of her having filed charges. After her termination Kyriazi found other work. First she joined the Child Development Department of the Human Resources Administration of the City of New York. Her former supervisors, including a former Assistant Commissioner, appeared and testified on her behalf and gave an extremely favorable account of her employment history with their agency. From there Kyriazi went to Group Health, Incorporated, as a systems analyst. The President of that company, Dr. George W. Melcher, who is also an Associate Professor of Clinical Medicine at Columbia University, College of Physicians and Surgeons, testified as to her performance with his company. He testified not only to her exceptional professional competence, but also to her lack of any aberrant personality manifestations which he, as a doctor, would feel required psychiatric treatment or evaluation. Unless we are to believe that Kyriazi became a totally different person when she left Western, the praises given her by subsequent employers both as to her competence and personality are further evidence which discredits the testimony adduced by Western. It may be appropriate at this point to note that the Court does not mean to suggest that Kyriazi was a paragon of virtue, nor that she was an easy-going person, nor one possessed of a pleasing personality. Far from it. Having observed her on the stand for many hours, the Court came to the conclusion that she is a determined, demanding and insistent person, and the Court does not doubt that her personality has the capacity to thoroughly infuriate those who deal with her. The militant qualities of her character undoubtedly, and understandably, provoked strident responses. If her aims had been illegitimate, her goals impermissible or her complaints without merit, her summary dismissal on November 19, 1971, and her physical removal on thirty minutes notice would have been understandable. But the fact remains that her protests were over real and not imagined wrongs, and that she had every right to remain steadfast and to refuse to bow or even to bend. It often happens that progress and victories in the struggle for human rights are made by those who are strong enough to endure the struggle. A weaker, more pleasant, less demanding person than Kyriazi might well have capitulated some principle, and survived at Western. But the law does not impose such a duty on anyone. One last aspect of Kyriazi's individual case remains: her claim that while at Western her supervisors unfairly and discriminatorily rated her, denied her raises and withheld promotions from her. This subject leads us to the edge of a consideration of damages, which the Court will reserve for the second stage of trial. Kyriazi claims (Pltf's Pr. Finding No. 316), and the Court agrees, that Imandt improperly rated her work "C". We have already found that, at least in part, Kyriazi desired and finally obtained a transfer from Imandt's department because of his discriminatory attitude. Kyriazi also claims that from the time she entered Wertz's department, in early 1969, until the time she was fired, in late 1971, she was improperly rated. In December of 1969, when Kyriazi received her rating, she was placed at the bottom of the "B" group. (Exhibit P-154, 12/1/69). In 1970 Kyriazi was told that she was rated B +. Western denies she was ever so informed, and on the June 1, 1970 appraisal sheet rates her a "C". Within a month, however, and after her protests, this rating was changed to "B +". Rating is a critical factor in determining salary at Western. A professional employees' salary is determined by the rating of an employee and the age or length of service of that employee. The evidence established that Wertz, Wilser and Boyd rated Kyriazi lower than her worth, and moreover, that even under Western's own computation, she did not receive the salary to which her age and unduly low rating would have entitled her. 943 As to the first matter, it is most difficult for the Court, years later, to fix with precision the grades which Kyriazi should have received in 1969, 1970 and 1971. She claims to have been an "A". The company claims she was a "C", but surely never more than the bottom of the "B's". The rating of an employees' work is largely subjective; it rests almost entirely on the impressions of supervisory personnel. Where the evidence indicates that supervisors are conscientiously and fairly attempting such evaluations, their conclusions are entitled to great weight. Subjective perceptions will vary. A perfect evaluation is not required, even if it were attainable. But when, as here, an employee has demonstrated that her supervisors were unlawfully discriminating against her, then their ratings and rankings are no longer presumptively valid. It falls upon them, in such circumstances, and upon their employer, to demonstrate the bona fides of low rankings awarded by supervisors with a demonstrable bias. No satisfactory evidence in support of the Wertz-Wilser-Boyd evaluations of Kyriazi was offered to the Court by Western. Kyriazi did offer evidence, which the Court finds persuasive, that even under the improperly low ratings awarded by Western, Kyriazi did not receive the salary to which she was entitled. The Court adopts plaintiff's Proposed Findings Nos. 358-360, 366-376: 358. . . . During the period that Kyriazi was at Western, new salary curves for professional employees were published approximately every six months. The salary curve for Information Systems Staff Member, for December 1970, is approximated below (Exhibit P-154): 944 359. On the curve, employees can plot what their salary should be. The horizontal axis represents the employee's age, and the vertical axis represents amount of monthly salary and rating. The cross-hatched portion of the graph is the range in which the middle 50% employees, that is, those who are rated "B", or "above expected", should be paid. Employees rated "A" should be paid in a range above the cross-hatched portion. 360. Thus, in December 1970, when Kyriazi was 41 years old, and was rated at the top of the B's (or B +) (Exhibit P-154), she could plot her age and rank on the salary curve, and find that her salary should have been approximately $1,345 per month (Kyriazi, 20: 2338); (Exhibit P-154). In fact, her salary at that time was $1,175 (Exhibit P-153). Even accepting arguendo the rating given to Kyriazi by Western, Kyriazi was underpaid by Western's own standards (Kyriazi, 21: 2409; (Exhibits P-154, P-91(c)(3), (4)). 366. Kyriazi appears as the top-ranking B on the appraisal sheet for 11/1/70 (Exhibit P-154, Rank Order 11/1/70). In December 1970, she was given an $80 increase, so that she was paid $1,175, substantially below the approximately $1,345 per month she should have been paid according to age and rating (Kyriazi, 21: 2410); (Exhibit P-154). 367. Other Information Systems Members were all paid in accordance with their age and rating at the time of the December increases of 1970. The person with the greatest discrepancy was Kyriazi (Kyriazi, 21: 2409); (Exhibit P-154, Rank Order 11/1/70). 368. Western has a policy of giving generous merit increases to persons who are not paid according to their rating and age (see proposed finding 365, supra). Despite the fact that Kyriazi's salary was more out of line than any of the other Information Systems Members, Kyriazi received a smaller raise in December 1970, than six of the males who were rated lower than she, including Armstrong and Liu (Exhibit P-154, Rank Order 11/1/70). 369. Western's policy of bringing a person's salary into line with their rating and age within one year (if not within six months) (see proposed Finding 365, supra) was not applied to Kyriazi. In June 1971, Kyriazi received no increase at all (Exhibit P-154, Rank Order 11/1/70). 370. When she complained to her supervisor, defendant Wilser, that others had received raises in June (Sen and Havalchak) while she hadn't, Wilser told her that she was wrong, that nobody received an increase in June, that she was crazy, and that she should have a medical or a psychiatric examination. (Kyriazi, 21: 2445); (Exhibits P-157, P-158). 371. In fact, Sen and Havalchak (Kyriazi, 21: 4444) both received substantial merit raises in June 1971. (Exhibits P-142, P-148). 372. Wilser later claimed that to his knowledge there was no one who got an increase in June who had on the preceding December unless they were out of band (Exhibit D-225(a), p. 32). Out of band means being paid at a lower lever than you should be based on rating and age (Boyd, 29: 3592-3); Exhibit P-91(c)(3)). 373. Neither Havalchak nor Sen was "out of band" the preceding December, and both had received raises at that time, or shortly before. Havalchak received a $75 increase in December 1970 for a total monthly salary of $1,125 (Exhibit P-154, Rank Order 11/1/70). He was 24 years old at the time (Exhibits P-142, P-154). Sen received a $70 increase on 11/1/70 which brought his monthly salary to $1,080. He was 23 years old at the time (Exhibit P-148). Thus, prior to June 1, 1971, Sen and Havalchak would have been placed approximately in the middle of the B band (Sen $1,080, Havalchak $1,125). (Exhibit P-154, Rank Order 11/1/70). 374. Using the salary curve of 12/1/70, and plotting the location of Sen and Havalchak on the curve by salary and age, it 945 is found that their June raises put them at the very top of the B range. This is in spite of the fact that in the relevant ranking, those of 11/1/70 (Exhibit P-154, Rank Order 11/1/70), Sen was ranked the lowest of all Information Systems Members in the B range, and Havalchak was rated N. 375. Thus, in June of 1971, Sen, Havalchak and Kyriazi were situated as follows: Prior Job Experience Rating[] Related Advanced With Age 11/1/70 Experience Degrees Western Salary Sen 24 B- 0 0 1 yr. 2 mths. 1,160 Havalchak 25 N 0 MBA 1 year 1,170 Kyriazi 42 B+ 5 yrs. MBA, 6 yrs. 2 mths. 1,175 MA in Industrial Engineering (Exhibits P-142, P-148, P-153, P-156). 376. Armstrong, who was ranked below Kyriazi in the Rank Order of 11/1/70 (Exhibit P-154) received a salary increase of $125 per month (as compared with Kyriazi's $80 increase) which, in terms of the salary curve, meant that he moved from the bottom of the B range to the top of the B range in one six-month period. Therefore, in December 1970, his salary reflected his age and rating, whereas Kyriazi, after the December 1970 increase, was still earning $170 a month less than she should have been, or almost $2,000 per year less than Western's won [sic] stated policies would mandate. However, the Court will not now attempt to fix the rating and rank or salary which Kyriazi should have received while at Western. For although the case was bifurcated only as to the class, the Court has determined to defer the question of the appropriate amount of damages to the second stage of trial. Thus, these determinations will abide the second stage of trial.[26] Suffice it for now to hold that Kyriazi has successfully proved in her individual case that Western violated Title VII by (1) underrating and underpaying her, (2) by denying her promotions, and (3) by terminating her. XIII. PROPRIETY OF KYRIAZI'S REPRESENTATION OF THE CLASS Throughout this litigation Western has challenged Kyriazi's right to represent so broad a class. Western, with some merit, points to the disparate jobs and categories which are embodied within the class as certified: from secretaries to wirewomen; from benchhands to engineers. It is true that the class is a very large one. While it has been impossible, because of layoffs and rehirings, to determine the precise number of women who comprise the class, it appears that Kyriazi represents approximately 7,500 women. Western claims that because Kyriazi's injuries are different from those she invokes on behalf of the class, she cannot satisfy the case or controversy requirement of Article III. Western argues that both Article III of the Constitution and Rule 23 of the Federal Rules of Civil Procedure prohibit a female engineer, whose own claims are limited to discrimination in promotion, salary and termination, from challenging Western's 946 treatment of its female secretaries, wirewomen, and pieceworkers in such divergent areas as layoffs and participation in job training programs. The Court does not agree with Western that the propriety of class representation is a question of standing under Article III. It is clear that Kyriazi, an "aggrieved party" within the meaning of 42 U.S.C. § 2000e-5, possesses the requisite injury-in-fact to permit her to sue. See, Hackett v. McGuire, 445 F.2d 442 (3rd Cir. 1971). The question of what claims may be raised by a named plaintiff is not a question of standing as such; indeed, it is the purpose of a class action to permit a named plaintiff to raise the claims of non-parties. Rather, the question whether the claims of the named plaintiff are sufficiently representative of those of the class bears both on the fairness of compelling a defendant to defend those claims and the fairness of binding the class to the ensuing judgment. See, Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). These precise concerns are embodied within Rule 23(a) of the Federal Rules of Civil Procedure and it is against the requirements of that rule that we must measure the propriety of Kyriazi's representation of the class.[27] The requirements of Rule 23 were recently considered by the Supreme Court in East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). In that case, three Mexican-Americans challenged their employer's practice, pursuant to a collective bargaining agreement, of requiring city drivers to forfeit their seniority in order to transfer to more desirable positions as line drivers. Alleging that they had been denied transfers because of their national origin, but stipulating pre-trial that they had not been discriminated against when they were first hired, plaintiffs initially sought to represent a class consisting of all "Negroes and Mexican Americans who had been denied equal employment opportunities with the company because of their race or national origin," including applicants of such minority groups who had sought positions from the effective date of Title VII. Id., at 399, 97 S.Ct. 1891. Despite their class allegations, plaintiffs never sought class certification. The district court ruled against them on the merits and dismissed their class allegations. The Fifth Circuit reversed, itself certified a class, and went on to find class-wide liability. The Supreme Court reversed the Fifth Circuit, holding that plaintiffs were not proper class representatives. First, the Court looked to the trial court's finding that plaintiffs themselves were not qualified to become line drivers and the stipulation pre-trial that they had not been discriminated against in their initial hire, and held that since it was clear that the plaintiffs "could have suffered no injury as a result of the alleged discriminatory policies" they "were hardly in a position to mount a class-wide attack on the no-transfer rule." Id., at 403-4, 97 S.Ct. at p. 1897. Second, the Court held that plaintiffs' failure to pursue the class aspects of the case combined with evidence of record that union members had recently ratified the no-transfer rule, made it unlikely that plaintiffs could "fairly and inadequately protect the interests of the class." Id., at 405, 97 S.Ct. at 1897, quoting Rule 23. 947 We do not have that situation before us. It is clear that Kyriazi, unlike the plaintiffs in Rodriguez, has suffered the same injury as that suffered by the class. Further, it is clear that she has adequately pursued the class claims at all stages of this litigation and, indeed, that she has proved them. The only question then is whether Kyriazi's claims are so dissimilar to those raised on behalf of the class that Western was prejudiced by having to defend them. There clearly is some division of authority on the extent to which a plaintiff, who has been injured in one respect by an employer's discriminatory policies, may by way of a class action challenge employer's practices "across-the board". However, numerous district courts have certified such "across-the-board" actions and, indeed, many Courts of Appeals have held that it is an abuse of discretion for a district court not to do so. One such case is Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975). In that case, the named plaintiffs, who were or had been employed by the defendants as engineers, janitors and electricians, charged discrimination with respect to promotion. One of the named plaintiffs was Hispanic, the rest were black, and all but one were male. They sought pre-trial to represent a class of "all females, Blacks and Hispano-Americans" who presently were or who might in the future be employed by the defendant. The district court refused to certify the class as requested, and instead certified four subclasses consisting of employees within the same job categories and minority groups as the named plaintiffs. The Tenth Circuit reversed, holding that the district court erred in refusing to permit the plaintiffs to bring an across-the-board challenge with respect to all of the defendant's discriminatory employment practices in all of its job categories: [T]he class was reduced to those individuals only who were of the same race or ethnic origin and who performed the same jobs . . . Class actions are generally appropriate in Title VII employment discrimination cases. The reason for this is that although these suits are self-help, so to speak, actions, they also have a broad public interest in that they seek to enforce fundamental constitutional principles . . . [citations omitted] . . The courts have made clear that in the design of these classes not every member of the class need be in an identical situation as the named plaintiff . . . In the case at bar as in some of the other cases cited, the plaintiffs made a broad scale attack on the defendant's employment and promotion policies. Their complaint extended beyond challenging the promotional practices in their own departments and alleged the promotional policies throughout the plant had a discriminatory effect. To the extent, therefore, that employees throughout the plant of Martin Company were discriminated against as a result of the company's policies, the plaintiffs made claims which embraced other people regardless of whether they were engaged in work identical to that of the plaintiffs. Id., at 340 1. (Emphasis supplied). See also, Barnett v. W. T. Grant, 518 F.2d 543 (4th Cir. 1975) (district court erred in limiting plaintiff to proof that defendant discriminated against black applicants for position of "over-the-road driver" where plaintiff was prepared to prove discriminatory recruitment practices and failure to hire blacks into supervisory positions); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975) (former employee not entitled to reinstatement may represent class which includes present employees); Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) (discharged minority employee may represent minority applicants as well as present and former employees of the defendant); Johnson v. Georgia Highway Express, 417 F.2d 1122, 1124-5 (5th Cir. 1969) (noting that "the Damoclean threat of a racially discriminatory policy hangs over the racial class [and] is a question of fact common to all members of the class"). See also, Schlei and Grossman, Employment 948 Discrimination Law at 1095 (1976) noting that "[t]he common question of fact and law . . . is the existence of discrimination", and cases cited at Id., 1089, note 25.[28] Western relies on Valentino v. U. S. Postal Service, 16 F.E.P. Cases 242 (D.D.C. 11/18/77), in which a district court refused to permit a female professional employee to bring a class action on behalf of tens of thousands of women employed in over 4,000 separate jobs within the United States Post Office, "regardless of the location of the jobs." (p. 244). In denying class certification, the court noted that the nature and theory of plaintiff's claim were essentially different from that of the class she sued on a theory of disparate treatment or intentional discrimination as to her while she alleged a theory of disparate impact on behalf of the class. The court said: Plaintiff's individual complaint here is that she was not promoted because of her sex notwithstanding her qualifications. This essentially is a claim of disparate treatment. It is therefore different from a claim another woman might have that she encountered discrimination through the disparate impact of a general Postal Service employment practice that more harshly treats women than men. The different evidentiary burdens in the two kinds of claims negates a finding of typicality. Id. at 244. (footnotes omitted). While it is of course true that, as a professional employee an engineer Kyriazi did not have the identical experiences as the woman factory and clerical workers whom she represents, this does not mean that she fails to satisfy the typicality requirement of Rule 23, FRCivP. For it is clear to the Court that the discrimination suffered by Kyriazi was typical of the discrimination suffered by all women at Western. The Requisition for Personnel forms were used by supervisors who, like defendant Wertz, presided over men and women in broad range of job categories, from engineers to clericals. It is plain, then, that Kyriazi's claim of intentional discrimination is indeed typical of the class claim that Western intentionally discriminated against all of its female employees. It should also be remembered that, in the largest sense, it is particularly apt for this plaintiff to represent, here, a class as broad as that she championed even while she was an employee at Western. It is evident that while at Western Kyriazi complained to her superiors concerning not only the treatment she was receiving, but the treatment which all women received at Western. That this annoyed her supervisors is clear. Indeed, during the October 1, 1971 tape-recorded interview between Kyriazi, Wilser and Wertz, Kyriazi was berated by Wertz for her activities on behalf of "women's lib." (Exhibit D-225(a), page 17). Kyriazi saw herself as a victim of a plant-wide discriminatory policy; she continually protested against it and was fired, in part, because of it. It is not unfitting, therefore, that she be permitted to press that same claim here. Nor is it clear just how Western has been prejudiced. Much of the same evidence, such as the personnel forms which were used for all job categories, the evidence of their alteration, the perjury of those who altered them, the discriminatory advertising, and much more, would have to be proved over and over again if separate classes were formed for every different kind of job at Western. And how many classes would be appropriate? Western has not indicated the number it thinks appropriate. While none of these factors, of course, permits us to overlook the requirements of Rule 23, we should not strain to read that Rule to require women who have been deliberately discriminated against on a plant-wide basis to sue and sue and sue again in order to obtain a full measure of relief. If one were ill disposed to such suits it would, no doubt, be possible to say that Kyriazi can only represent a class of women engineers, with two advanced degrees, who were immigrants 949 from Greece, for no one else is similarly situated or "typical". The Court, however, continues to feel that, on the facts of this case, it was correct in certifying the class as broadly as it did, and adheres to its pre-trial and mid-trial rulings for the reasons expressed then as well as now. Accordingly, the Court finds that plaintiff has established that Western discriminated against plaintiff's class in hiring, in promotional opportunities, in participation in training programs in supervision, in layoffs and in discharge. The Court further finds that as a result of this discrimination within Western, women tended to be and were confined within certain types of jobs and levels of jobs. As to the remaining claims on behalf of the class, the Court finds that plaintiff has failed to demonstrate, by a preponderance of the evidence, that females at Western were discriminated against with respect to maternity leave, college tuition refund benefits, or participation in the Bell System's Savings Plan. There is simply no credible evidence to support these latter claims. Indeed plaintiff's post-trial Proposed Findings of Fact and Conclusions of Law themselves largely ignore these latter claims. To the extent that women are ineligible to participate in the Bell System's Savings Plan because only salaried employees are eligible and a majority of women employees are not "salaried" but "hourly" employees, this is a collateral consequence of the other discriminatory policies of Western, and will be adjusted by the Court in the remedy phase of the case. XIV. KYRIAZI'S REMAINING CLAIMS In addition to her Title VII claims against Western, Kyriazi claims that (1) Western and the five individual defendants conspired to deprive her of her federally-protected rights in violation of 42 U.S.C. § 1985(3), and (2) that the five named individuals tortiously interfered with her employment at Western. A. Kyriazi's § 1985(3) Claims A unanimous Court of Appeals for this Circuit, sitting en banc, has recently held that 42 U.S.C. § 1985(3) is available to an individual who claims to have been discharged in retaliation for his advocacy of equal employment rights. Novotny v. Great American Federal Savings & Loan Assoc. et al., 584 F.2d 1235 (3rd Cir. 1978) (en banc). Specifically, the court held that (1) under the Supreme Court's decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), discrimination against women constitutes "class-based animus"; (2) that Title VII is a law which guarantees "equal privileges and immunities" within the meaning of § 1985(3); and (3) that a corporation can be deemed to have conspired with its own employees in violation of § 1985(3). The court further noted that: [T]o deprive members of a class founded on gender of equal protection or equal privileges and immunities without any justification is to act in an irrational and odious manner . . . Novotny, supra, at 1243. The elements of a cause of action under § 1985(3) were set forth by the Supreme Court in Griffin, where the Court stated that: To come within the legislation a complaint must allege that the defendants did (1) `conspire . . .' (2) `for the purpose of depriving . . . any person . . . of the equal privileges and immunities under the laws . . .' (3) did, or caused to be done `any act in furtherance of the object of [the] conspiracy,' whereby another was (4) `injured in his person or property' or (4b) `deprived of having and exercising any right or privilege of a citizen of the United States.' Id., 403 U.S. at 102, 91 S.Ct. at 1798. It is clear that Kyriazi has established the existence of a conspiracy among Western and the five named individual defendants to deprive her of her federally-protected right to be secure from employment discrimination on the basis of sex. She has proved, 950 and the Court so finds, that her co-workers Armstrong, Liu and Snyder jointly agreed to ridicule and harass her as a woman; that her supervisors Wilser and Boyd tacitly encouraged this conduct by deliberately choosing to overlook it; and that Western, through its agents, was a party to and carried out the object of the conspiracy, which was ultimately the termination of Kyriazi. B. Kyriazi's State Law Claim Kyriazi has alleged and proved a pattern of conduct on the part of her co-workers and supervisors which amounts to a tortious interference with her employment contract with Western. Where one intentionally acts to deprive another of an economic benefit, including an employment relationship, the law of New Jersey confers a right of action on the party aggrieved. Thus, in Brennan v. United Hatters of North America, Local No. 17, 73 N.J.L. 729, 65 A. 165 (Ct. of Errors and Ap's 1906), plaintiff alleged and proved at trial that the defendant union, of which he was a member, maliciously and without reasonable cause, served him with charges of an alleged violation, revoked his membership in the union, and, thus, prevented him from engaging in his trade. The court affirmed the verdict on behalf of the plaintiff, noting that "[t]he common law has long recognized as a part of the boasted liberty of the citizen the right of every man to freely engage in such lawful business or occupation as he himself may choose, free from hindrance or obstruction from his fellow man . . ." 73 N.J.L. at 742, 65 A. at 170. More recently, in Raymond v. Cregar, 38 N.J. 472, 185 A.2d 856 (1962), New Jersey's highest state court found such a cause of action in favor of a physician who claimed to have been denied reappointment as a hospital physician because of the actions of his colleagues at the hospital. The court there isolated the elements of such a clause of action as consisting of (1) actual interference with an employment relationship which is (2) done with malice, that is, "the intentional doing of a wrongful act without justification or excuse." 38 N.J. at 480, 185 A.2d at 860. See also, Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964); Kuzma v. Millinery Workers Union, Local 24, 27 N.J.Super. 579, 99 A.2d 833 (1953); Strollo v. Jersey Central Power & Light, 20 N.J.Misc. 217, 26 A.2d 559 (1942); Prosser, Torts § 129 (4th Ed.) The Court is satisfied that Kyriazi's proofs at trial entitle her to recovery under the tort of malicious interference with her employment at Western. There is no need to find the facts a second time. The findings made in connection with her Title VII claim establish the deliberate tortious interference by Wilser, Boyd, Armstrong, Snyder and Liu with her employment relationship with Western. Accordingly, compensatory and punitive damages will be awarded Kyriazi in an amount to be fixed by the Court at a later time. However, in holding that she is entitled to recovery on her 1985(3) claim and on her state law claim as well as on her Title VII claims, we do not mean to suggest that she is entitled to a double or triple recovery. Rather to the extent that compensatory damages have already been awarded under any of the claims, they are to be recovered only once. Punitive damages, on the other hand, are of course to be determined as a separate matter. Judgment as to class liability shall be entered for plaintiff in accordance with the decision of this Court. Relief to be granted to the class, including injunctive relief, affirmative action, and a method to compute the amount of back pay which will be awarded to the class pursuant to 42 U.S.C. § 2000e-5(g) shall be determined at a later stage. Defendants shall pay to counsel for plaintiffs all reasonable attorneys' fees, expenses and costs for these proceedings culminating in the judgments as to liability, 42 U.S.C. § 2000e-5(k). Counsel for plaintiff may submit an itemized accounting in relation to Phase I, governed by the principles laid down in Lindy Bros. Bldrs. Inc. of Philadelphia v. American R. & S. San Corp., 487 F.2d 161 (3rd Cir. 1973); 540 F.2d 102 (3rd Cir. 1976). Upon the filing and serving 951 of the appropriate affidavits the defendant shall have twenty (20) days thereafter to file any objections to any claim. Upon receipt of such objections, or if there be none, the Court will award such fees and expenses and costs as are just. NOTES [1] See, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). There is subject matter jurisdiction over Kyriazi's state law claims because federal claims are also leveled against these same individuals under 42 U.S.C. § 1985(3). See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). [2] The text of both charges is identical. It reads: "DEGREES: (1) MS. GRAD. SCHOOL OF ENGINEERING (2) M.B.A. GRADUAT. SCHOOL OF BUSINESS BOTH OF COLUMBIA UNIV. SERVICE: HIRED AS AN ENGINEER IN 1965, TOTAL SERVICE 7 YEARS (1965-NOV. 1971) PERFORMANCE: THEORETICAL & PRACTICAL APPLICATIONS EXCELLENT, RELATIONSHIP WITH 99.999% OF THE CO. EXCELLENT TILL TODAY, THE 5 YEARS OUT OF THE TOTAL 7 (APPROX.) MUTUAL RESPECT COMPLAINTS: UPON TRANSFER TO A NEW ORGANIZATION AT APPROX. THE 5TH YEAR OF SERVICE I FACED EXTREME CALCULATED (SEX) DISCRIMINATORY PRACTICES, 1. PROFESSIONALLY: IN THE ASSIGNMENT OF WORK (PROJECTS ME TO DEVELOP), APPLICATION OF UNETHICAL PROFESSIONAL PRACTICES AND REFUSAL OF COOPERATION COMPLETELY IGNORING MY INTERESTS IN RATING, SALARY INCREASES, AND PROMOTIONS, RESULT: FINANCIAL LOSS HUMILIATION AND LOST OPPORTUNITIES FOR PROMOTION TO SENIOR ENGINEER. 2. PERSONALLY: HARASSMENT, REACHING PROPORTIONS OF IMMORALITY, GENERALLY CALCULATED ADTION [sic] TO ALTER (TO THE WORST) MY EXCELLENT PROFESSIONAL AND PERSONAL IMAGE IN THE CO. REPRISAL: WHEN THEY WERE INFORMED THAT I FILED A SUIT AGAINST THE CO. (WITH THE N.J. STATE), THEY TERMINATED MY EMPLOYMENT .... [3] Prior to March 24, 1972, and pursuant to 42 U.S.C. § 2000e-5(d) an individual in a state which had enacted anti-discrimination laws had a period of 210 days (as opposed to 90 days in states without such laws) to file charges of discrimination with the EEOC. Effective March 24, 1972, this period was extended to 300 days. [4] We are bolstered in our view that Evans did not overrule the "continuing violation" theory of Title VII by the Supreme Court's decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), decided the same day as Evans. In that case, although the Court did not specifically address the "continuing violation" theory, it did approve the award of retroactive seniority back to the effective date of Title VII to class members who were denied the right to transfer to the position of "line driver". [5] While plaintiff has not clearly elected the theory under which she proceeds, the Court characterizes this action as a "disparate treatment" case. [6] Personnel at Kearny are divided for EEO purposes into six broad categories: (1) Officials and Managers; (2) Professionals; (3) Technicals; (4) Skilled Crafts; (5) Clericals, and (6) Operatives. [7] There are, however, significant differences between these two grades in terms of salary, promotion and, most importantly, layoff. As will be discussed in greater detail infra, the collective bargaining agreements in effect during the relevant period provided for layoffs by grade, so that, for example, a grade 32 worker with twenty years seniority would be laid off before a grade 33 worker with two years seniority. [8] Also within the Professional category is the position of Engineer which will be discussed infra in connection with Kyriazi's individual case. [9] The collective bargaining agreement effective August 14, 1974 (hereinafter the "1974 Agreement") provided that when lack of work necessitated decreasing the workforce, it would be accomplished in the following manner (P-86(b)): (a) employees in Grades 32, 202 and entry level Grades 33 or 203 would be laid off first in inverse order of seniority (without regard to where the surplus actually existed); (b) the surplus would then be identified by occupation, grade and Department Chief's organization; (c) the process of displacement would then occur by Manager's organization for employees with less than ten years service and plantwide for those with more than ten years service. [10] LIFO means the last-in-first-out. In collective bargaining the term commonly used having the same meaning is strict-seniority-plantwide, without regard to department or occupation. (Lenz, 47: 5739). In a LIFO or strict-seniority-plantwide situation, an employee is permitted to displace a less senior employee regardless of occupation. (Lenz, 47: 5740). [11] Thus, for example, Catherine Neal testified as follows: BY MRS. VLADECK: Q. Mrs. Neal, on April 25, 1976, you gave testimony in Mr. Lynch's office. I asked you questions and you answered them. Do you recall that? A. Yes. Q. And have you recently reviewed the testimony you gave there? Have you recently read it? A. Yes. Q. Let me ask you some specific questions. On Page 61 of transcript I asked you, Mrs. Neal, what you did when you got the four copies back from the line organization? * * * * * THE COURT: Was it accurate? THE WITNESS: No, I'm very sorry. I just didn't want to admit my boss told me to cross out the X's and I'm sorry I lied. THE COURT: Are you telling me that you lied under oath? THE WITNESS: I didn't realize how serious it was. THE COURT: Did you understand that you had been sworn? THE WITNESS: I understood it, but I still didn't, you know, I didn't know it was really that serious. THE COURT: Aside from whether you regarded the placing of the X's as serious, did you understand that you had been sworn to tell the truth at the time you were deposed? THE WITNESS: I knew I had been sworn in. THE COURT: And did you thereafter deliberately give false testimony? THE WITNESS: Your Honor, I did. * * * * * * THE COURT: What was the occasion that Mr. Riordan told you that? THE WITNESS: I really don't remember. THE COURT: What was the conversation in the machine room with Mr. Hobbie and the other analyst? THE WITNESS: This was concerning X marks on the requisitions, male, female, and mail [sic] or female. THE COURT: What did Mr. Hobbie say? THE WITNESS: He wanted to know whether we had recently put those Xes [sic] on the requisitions. THE COURT: Where on the requisitions? THE WITNESS: In male, female and male or female. There were X's on all of those columns. THE COURT: Madam, did there ever come a time you in fact, under the instructions of Mr. Riordan, put X's in those boxes? THE WITNESS: Yes. THE COURT: Was that before or after the meeting with Mr. Hobbie? THE WITNESS: I think the meeting I think that was on a Monday and the meeting was on a Tuesday. THE COURT: In other words, on Monday you altered those documents? THE WITNESS: Well, I wouldn't call them altered. I was just doing what he says. But I wouldn't call them altered, the documents. I wasn't [sic] call them altered. THE COURT: Did you change them? THE WITNESS: Yes. THE COURT: Did you change them because he told you to? THE WITNESS: Because he told me to, not knowing how serious it was. Not realizing. THE COURT: Did he tell you why he wanted you to change them? THE WITNESS: No, he didn't. I told him I was very busy that morning, but he wanted me to change them before lunch. THE COURT: Did he tell that to anybody else? THE WITNESS: Two other investigators. THE COURT: What are their names? THE WITNESS: Armand Zambartti [sic] and Hank Sawicke. THE COURT: How many personnel requisition forms did you change roughly? THE WITNESS: I don't know. * * * * * * (Tr. 17: 1844-5; 1835-7) Armand Zambardi testified: THE WITNESS: I don't like to use the term "altering." THE COURT: Putting in X's or changing them or whatever you want to use? THE WITNESS: Yes. * * * * * * THE COURT: Did there come a time when you were summoned to take a deposition in connection with this case? THE WITNESS: Yes, sir. THE COURT: Were you summoned to a lawyer's office and there placed under oath? THE WITNESS: Yes, sir. THE COURT: Did you understand that you were sworn to tell the truth on that occasion? THE WITNESS: Yes, sir. THE COURT: Did you understand that if you didn't tell the truth, that if you lied, it would be the crime of perjury? THE WITNESS: I didn't realize the full seriousness of what I did, sir. THE COURT: When you were placed under oath were you asked questions concerning whether or not you had altered those documents? THE WITNESS: Yes, sir. THE COURT: Did you tell the truth? THE WITNESS: No, sir. THE COURT: Why? THE WITNESS: Again, I just wanted to protect my supervisor. That's the only answer I can give you. THE COURT: From what? THE WITNESS: I guess that we marked them, the documents, sir. THE COURT: What did you understand was wrong about marking them? THE WITNESS: As I say, I realized after the situation that I marked evidence. THE COURT: Did you know that when you were under oath in those depositions? THE WITNESS: I guess yes. * * * * * * (Tr. 17: 1980-3). Henry Sawicke testified: THE COURT: Did you understand when you were filling in forms you were doing something wrong? THE WITNESS: No. THE COURT: Did you understand when Riordan told you to fill in those forms he was doing something wrong? THE WITNESS: I don't know if there was anything wrong because it was our job to do that originally. THE COURT: But you felt you had to deceive Hobbie to protect Riordan? THE WITNESS: That's correct. THE COURT: Did you feel the truth would hurt Riordan? THE WITNESS: I the only thing bothered me was why didn't Riordan tell him that he told us to do it. THE COURT: Why didn't he? THE WITNESS: That's the only thing bothered me. THE COURT: How do you know he didn't? THE WITNESS: I don't know. He didn't tell us in the room. He didn't say anything. THE COURT: He stood there silently? THE WITNESS: He didn't say anything. * * * * * * THE COURT: Thereafter, did you undergo depositions in this case? THE WITNESS: Did I do what? THE COURT: Were you given notice that you would be required to testify under oath in this case? THE WITNESS: Yes, I was. THE COURT: Did you go to a lawyer's office and so testify? THE WITNESS: I did. THE COURT: Were you asked questions concerning whether or not you had put X's on the boxes? THE WITNESS: Yes. THE COURT: Before you were asked those questions were you sworn to tell the truth? THE WITNESS: Yes. THE COURT: Did you tell the truth? THE WITNESS: No, sir. THE COURT: Did you lie under oath? THE WITNESS: I lied on that one. THE COURT: Did you understand when you lied under oath you were committing a crime? THE WITNESS: Well, we felt because there was nothing ever wrong with these T's, it was our fault with not marking them. I thought there was nothing wrong with them. THE COURT: Did you hear my question? THE WITNESS: Yes. THE COURT: Did you believe or did you understand that when you lied under oath you were committing a crime known as perjury? THE WITNESS: At that time I didn't even think of it. THE COURT: Did you think it was all right to lie under oath? THE WITNESS: It never came to my mind at that time. (Tr. 17: 1948-50) [12] It must be noted that if the initial request originates above the section chief level, for example at the department chief level, the form, with its sex preferences, still requires three levels of approval. In that case it must be signed not merely by the assistant manager, but also by the manager of the department, and there is a box on the form with the printed title of manager and a place for the manager's signature. [13] In fact, Kenneth Kubicki, who for a time was in charge of Equal Opportunity at Western, admitted that he was aware these forms were in plantwide use: THE COURT: Were you aware of the fact that your line supervisors were designating on the Request for Personnel forms their sex preferences? THE WITNESS: There was when it was called to my attention, a "W" or an "M." THE COURT: That's a man or a woman, isn't it? THE WITNESS: I looked at the 35-W as possibly a wage incentive opening. I didn't look at this as man or woman, I looked at those forms many times. THE COURT: You were unaware that your line supervisors were routinely indicating or had the ability to indicate sex preferences on their Request for Personnel? THE WITNESS: After the fact this was told to me, then I could see it very clearly. While it was going on, to me the "W" to me I interpreted as possibly wage incentive opening. I never interpreted it as "man" or "woman." THE COURT: What does the "M" stand for? THE WITNESS: That could be some other coding. That was none of my concern. THE COURT: Were you ever a line supervisor? THE WITNESS: In the Toolmaker Training School. THE COURT: Did you use those forms? THE WITNESS: Yes. THE COURT: Did you indicate a check next to an "M" or a "W"? THE WITNESS: No. I told my secretary to make a form for an opening and place that place that [sic] with Personnel and approve it. * * * * * * THE COURT: When did you first become aware that the line supervisors were, in fact, indicating sex preferences? THE WITNESS: When there was an investigation in June of '76 well, it was before this Court and there was a lot of furor and activity. THE COURT: Was that the investigation concerning possible subsequent alteration of those documents? THE WITNESS: You're right. Yes, your Honor. THE COURT: You mean until there was an investigation into the destruction or alteration of those documents, you were unaware that there were documents in existence being routinely used by the company by which four or 500 line supervisors could express sex preferences? THE WITNESS: It may sound naive, but that's true. THE COURT: And it was you who were in charge of any independent investigation into whether or not line supervisors were acting discriminatorily? THE WITNESS: We would investigate the charge, yes. And, of course, it was my concern. * * * * * * THE COURT: Were you aware that these forms, P-111, were in use? And by the way, there is no M and W; there is an M and F, and it is under a block for sex. THE WITNESS: Yes. THE COURT: Were you aware that they were in use? THE WITNESS: I had a passing acquaintance with them being in use, but my occasion to use them was very rare. THE COURT: Did you, yourself, use these forms when you were a line supervisor? THE WITNESS: I really don't recall. It has been so long. THE COURT: As the man in charge of Equal Opportunity, were you aware that line supervisors were using these forms routinely whenever they had a vacancy to fill in their section? THE WITNESS: Yes. THE COURT: You knew that? THE WITNESS: Yes. THE COURT: Then you knew they were expressing sex preferences for hiring openings, that is so? THE WITNESS: The form says so, yes. THE COURT: I know the form says so. I'm asking you whether you knew that they were doing that? THE WITNESS: I would have to admit to it, yes. THE COURT: What do you mean, you would have to admit to it? THE WITNESS: Well, I know EO, the investigation of going over many of these forms, sometimes the opportunity never occurred. THE COURT: I don't understand what you just said, sir. THE WITNESS: What I'm saying is that I had a limited exposure to these forms. BY MRS. VLADECK: Q. May I ask you a question, Mr. Kubicki? As Department Chief A. Yes. Q. if there was a requisition for any personnel in your department, don't you have to sign one of these before any job can be filled in our [sic] department? Not just as a line supervisor, but as a department chief, are you not obliged to sign off on one of these before any job could be filled in your unit? A. This is only reasonable that I have had people that I could that I could requisition people for positions. I was without protfolio [sic] for many years. The new form doesn't appear to be like this. THE COURT: I'm not asking about any new form. I'm asking about the form that you just were shown, P-111. Apparently that form was used for many years. It was used by hundreds of line supervisors, approved by their department chiefs, and used to fill literally thousands of vacancies throughout the plant. Isn't that so? THE WITNESS: Yes. THE COURT: You say you would have to admit that you knew that that form was in use during the time that you were responsible for Equal Opportunities within the plant; that is so? THE WITNESS: Yes. THE COURT: You say that you understand it is in violation of the law for a supervisor to take into consideration the sex of an employee filling the job; is that so? Didn't you tell me that a moment ago? THE WITNESS: I don't know if I said it that way. THE COURT: Well, as to THE WITNESS: Because of sex. THE COURT: Yes. THE WITNESS: Yes. To wipe somebody out because they were male or female, that is discriminatory. THE COURT: Well, what about if you say you wanted a male or you wanted a female for the job? That, in effect, is telling the personnel department, isn't it, that they want a specific employee of a specific sex to be sent; isn't that right? THE WITNESS: Yes. THE COURT: Is that or is that not a violation of law as you understood it while you were in charge of Equal Opportunities? THE WITNESS: Yes. THE COURT: It therefore follows, doesn't it, that you knew that employers were indulging in these practices? THE WITNESS: I guess I would have to admit to that, that I knew, but, again, limited exposure to the forms. * * * * * * (Tr. 1590-98.) [14] See, for example, the statistics set forth in plaintiff's exhibit 19, showing that during the 1967-76 period, 86.1% of the "new hires" referred by a friend or relative were men: NEW HIRES WHOM WESTERN ADMITS WERE REFERRED BY A FRIEND OR RELATIVE 1967-1976 NUMBER PERCENT Male 105 86.1 Female 17 13.9 ____ _____ TOTAL 122 100.0 (P-19) [15] William Ammermann, a Senior Information Systems Staff member at Western and the author of D-183, admitted that the exhibit had been prepared solely for the purpose of this litigation. He further admitted that the salary data which were used to prepare the exhibit were no longer in existence. (Ammermann, 41: 5022-4). [16] THE COURT: Are you sitting here telling us now the motive and the reasons why the Supervisors throughout Western Electric, except for Clark, did not comply? THE WITNESS: [VINES] Yes, your Honor. That's what I'm trying to explain. THE COURT: Do you know why they didn't comply? THE WITNESS: I can assume, based on these records, that they had forgotten it. We have talked to THE COURT: How many Supervisors are we talking about? THE WITNESS: By the end of '75 THE COURT: No, by the beginning of '75. THE WITNESS: Oh. It would be somewhere in the neighborhood, I think, of 400. THE COURT: And you mean that you are able to say now that all 400 forgot? THE WITNESS: That's the only reasonable explanation, your Honor. THE COURT: Well, is it possible that they simply chose to disregard it? THE WITNESS: I don't know why they would choose to disregard that and not disregard the earlier letter of February. THE COURT: What I am trying to understand is are you testifying now that you are reasonably certain that all 400 or 500 Supervisors, each one of these people, forgot this memorandum? THE WITNESS: Your Honor THE COURT: There wasn't one Supervisor who remembered it? THE WITNESS: I can't testify that not one remembered it. I can only speak for the facts. The facts are that none of them complied. I find it hard to believe that they would disregard the instruction in a case of one letter and obey it in the case of the first letter. THE COURT: Do you find it difficult to believe that all four or 500 forgot it? THE WITNESS: Almost, but not quite. THE COURT: All right. * * * * * * (Tr. 15: 1489-90) [17] YEAR # MALES # FEMALES % FEMALES 1967 332 1 -* 1968 344 2 - 1969 360 2 - 1970 360 3 - 1971 343 3 - 1972 250 3 1.1 1973 294 5 1.6 1974 277 5 1.7 1975 138 4 2.8 1976 121 1 - 1977 118 0 0 * Less than one per cent. (Exhibit P-104). [18] YEAR SENIOR ENGINEER OCC. ENGINEER ENGINEER M F M F M F 1967 161 0 272 2 24 0 1968 153 0 254 2 27 0 1969 162 0 226 1 41 0 1970 161 0 223 1 50 0 1971 157 0 255 1 19 1 (Exhibit P-101) [19] From 1972 through 1975, there were the following promotions within the Engineering category: Male Female Engineer 3 0 Occupational Engineer 46 0 Senior Engineer 30 0 (Exhibit P-102) [20] See, for example, Requisition for Personnel forms numbers 4-109 and 01-350 for the year 1974, for Development Engineers, in Exhibits D-220(b) and (c); Items numbers 80-10-11 and 12-13-14 for the year 1975, for 2 Occupational Engineers, 2 Senior Engineers and a Department Chief in the Engineering area, in Exhibit D-220(g). [21] Imandt actually took over the department in October of 1967. However, he suffered a phlebitis attack on the day he assumed charge of Kyriazi's department and was out on disability until some time in January of 1968. (Tr. 3387). These dates become significant later. [22] The following people were in fact hired or transferred into Information Systems in 1968 or at the beginning of 1969: P-145 S. T. Liu (hired) P-149 E. Stewart (hired) P-214 P. Crefeld (transferred) P-147 R. McCauley (transferred) [23] As Imandt's memo notes: This discussion, much the same as had previously taken place with R. J. Imandt ended by his asking her specifically what she wanted. He told her that before she could be placed anywhere that there had to be takes [sic] which to date we had been unable to find. Although she apparently wants to [sic] into the computer field she really wants Systems work and not programming. She left with the understanding that she would think over the situation and try to be more specific in what she wants. She was again impressed with the fact that there had to be an opening before any move could take place. Throughout the foregoing discussions Miss Kyriazi expressed disdain for former Industrial Engineering supervisors to whom she had reported. She feels that they were not cognizant of her abilities and would not trust her on an assignment equal to those abilities in part because she is a woman working in what is generally a field for men. She is sure of her management capabilities and is very forceful in expressing this opinion. One of her major drawbacks is her inability to make herself understood because of language difficulties. When this is discussed with her she disagrees and indicates that the reason people cannot understand her is that they are intellectually inferior. (Exhibit D-74(b)). [24] June 15, 1970 MEMORANDUM FOR RECORD Circumstances leading to Miss Kyriazi's change in physical location from the third floor (17-3) to the fifth (20-5): Miss Kyriazi was temporarily loaned to this organization to develop a statistical sampling technique as a part of the Kearny Works Inventory Control Systems (KWIC). This required close liaison with development personnel in 3451. As the project developed, Miss Kyriazi became incensed with the employees she came in contact with and on two occasions flew into a rage and left the area. Both of these outbursts occurred when supervision was temporarily out of the area. The underlying cause of the friction is Miss Kyriazi's failure to accept guidance and direction, or even suggestions, from others. She felt she was being tricked or deliberately mislead [sic] by her project leader and associates. For example: 1. Miss Kyriazi had a card misplaced in her program deck and the computer test of the program completed. From that point forward she felt that the misplaced card was needed to complete a test. 2. Computer programs require Job Control Language Cards in order to submit the program to the computer for testing. The department Technical Coordinator tried to assist Miss Kyriazi in making up these cards and, when later the test did not complete, she felt that he tried to make her look bad and had deliberately sabotaged her job. She would not permit anyone to review her logic. In reality, it is quite normal to have minor errors embedded in both JCL Card and program logic during the initial stages of testing. Continued reoccurrences of incidents of this type caused a completely intolerable situation surrounding Miss Kyriazi's presence in this organization. Subsequent discussions were held between Mr. F. A. Wilser and the undersigned and it was felt that the project no longer required close liaison with 3451 employees and, for the good of all concerned, Miss Kyriazi should move to her department on the fifth floor. Original signed by R. S. BOYD, JR.3451 RSB:MBS (Exhibit D-77). [25] August 10, 1971 Mr. G. C. WERTZ 3450 Re: Cleo Kyriazi Two episodes continue to crop up in discussions with Miss Kyriazi: 1. Obscene Picture: It is the understanding of the undersigned that these events lead [sic] to Miss Kyriazi's possession of the picture. The picture was placed by parties unknown on the desk of an employee next to Miss Kyriazi. Miss Kyriazi saw the picture and became very upset. (She apparently felt that it was directed at her.) The picture was thrown into the waste basket by another employee. Later, Miss Kyriazi demanded to know the whereabouts of the picture, searched waste baskets, and retrieved it for her file. At no time was the picture given or even directed towards her. 2. Test coordinator: It was the policy of this organization to pick up tests from the I/O center each day. This job was assigned to each employee in turn for one week. The only exception was the project leader. Miss Kyriazi was assigned a three-day week and still felt that this was beneath her station because the project leader was not participating in the job. She felt she was being tricked into doing menial work for others. At the time, these two incidents were not brought to the attention of the undersigned. R. S. BOYD, JR.3451 RSB:MBS (Exhibit D-92) (Emphasis added). [26] Among the types of relief which will be awarded Kyriazi at the second stage are reinstatement, back pay and retroactive benefits. [27] Rule 23(a) provides that: (a) Prerequisites to a Class Action. One or more members of a class may sue . . . as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative party are typical of the claims or defenses of the class, and (4) the representatives will fairly and adequately protect the interests of the class. The instant class was certified under Rule 23(b)(2), which provides that in addition to the requirements of Rule 23(a) the named plaintiff must show that: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . [28] To be sure, there is authority to the contrary. See, e. g., Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972). [*] B + is used to denote the top of the B range; B- represents the bottom of the B range.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266146/	293 N.J. Super. 421 (1996) 681 A.2d 105 C.P., AN INFANT, BY HER GUARDIAN AD LITEM, J.P., INDIVIDUALLY, AND E.P., INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF PISCATAWAY BOARD OF EDUCATION, DEFENDANT-RESPONDENT, AND JOSEPH CARABILLO, GRANT AVENUE COMMUNITY CENTER, INC., AMERICAN RED CROSS, JOHN DOES 1-20, DEFENDANTS. C.P., AN INFANT, BY HER GUARDIAN AD LITEM, J.P., INDIVIDUALLY, AND E.P., INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. JOSEPH CARABILLO, DEFENDANT-APPELLANT, AND TOWNSHIP OF PISCATAWAY BOARD OF EDUCATION, GRANT AVENUE COMMUNITY CENTER, INC., AMERICAN RED CROSS, JOHN DOES 1-20, DEFENDANTS. Superior Court of New Jersey, Appellate Division. Argued and Submitted May 29, 1996. Decided August 15, 1996. 424 Before Judges DREIER, ARNOLD M. STEIN and CUFF. Donald J. Sears argued the cause for appellants C.P., J.P. and E.P. in A-6437-93T2 (Busch and Busch, attorneys for appellants 425 in A-6437-93T2 and respondents in A-569-94T2; Mr. Sears, of counsel and on the briefs). John G. Tinker, Jr., argued the cause for respondent Township of Piscataway, Board of Education (on the state tort claims) in A-6437-93T2 (Leary, Bride, Tinker & Moran, attorneys; Mr. Tinker on the brief). David B. Rubin argued the cause for respondent Township of Piscataway, Board of Education (on the federal civil rights claims) in A-6437-93T2. Michael B. Blacker, attorney for appellant Joseph Carabillo in A-569-94T2. No other parties participated in the appeal. CUFF, J.A.D. C.P. was sexually molested in a swimming pool by a volunteer instructor in a school board sponsored swimming program. Through her guardian ad litem, she appeals the dismissal of her Tort Claims Act claims and her federal civil rights claims against the school board. In a separate appeal, we must decide whether C.P. can execute on an Individual Retirement Account (IRA) held by the volunteer instructor in her effort to collect the default judgment entered against him.[1] We affirm the dismissal of the Tort Claims Act and federal civil rights claims and reverse the order authorizing execution against the defendant volunteer's IRA. In 1990, C.P. was eight years old and in the third grade at an elementary school in Piscataway. In November 1990, she was a participant in a school board sponsored swimming program known as Swimming Education and Aquatic Safety (SEAS). Instruction was provided at the Grant Avenue Community Center in Plain-field. 426 In November 1990, C.P. informed her mother that a volunteer male swim instructor at her swim class had touched her in the vaginal area. Her father contacted the principal at her school. The principal contacted the Division of Youth and Family Services which contacted the Union County Prosecutor's office. The volunteer, defendant Joseph Carabillo, was charged with aggravated sexual assault, sexual assault, and endangering the welfare of a child and ultimately pled guilty to sexual assault, a second degree offense, in exchange for the dismissal of the other charges. According to the certifications, depositions, and answers to interrogatories submitted in support of and in opposition to the school board's motions for summary judgment, the SEAS program has been under the direction of Phyllis Woestemeyer, a physical education teacher employed by the school board, since its inception in 1972. Ms. Woestemeyer's deposition testimony revealed that when a volunteer from the general public, rather than the school community, expressed an interest to participate in the SEAS program, she would speak to that person and ascertain what type of commitment he or she was willing to make. If the volunteer was from the school community, such as a high school student or a parent, she would contact someone at the high school who was familiar with the student or the parent before inviting him or her to participate in the program. If the volunteer was from the general public, she would try to speak to someone who knew the candidate. She did not conduct any formal interviews. Defendant Carabillo's interest was communicated to Woestemeyer through his wife. Woestemeyer spoke to Mrs. Carabillo and inquired about his availability. Prior to November 20, 1990, background checks of a volunteer's history of criminal behavior, psychiatric problems or substance abuse were not administered. Subsequent to Carabillo's assault of C.P., the school board developed an official policy regarding the screening of volunteers. Prior to the assault on C.P., there had 427 been no reported incidents of any assault on any participant by a volunteer. I In the action commenced in April 1991, C.P. and her parents asserted state law claims pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 through 12-3, and federal civil rights claims pursuant to 42 U.S.C.A. § 1983 (§ 1983) against defendant Piscataway Board of Education, and negligence and intentional tort claims against Carabillo. On December 20, 1993, Judge Robert A. Longhi entered partial summary judgment in favor of the school board dismissing the state claims for failure to satisfy the threshold set forth in N.J.S.A. 59:9-2d. He found that the claim asserted by C.P. was for emotional distress and that her proofs did not establish that she had sustained a permanent loss of a bodily function. In opposition to the school board's motion for summary judgment, plaintiffs submitted the report of Marsha Heiman, Ph.D., a clinical psychologist who has treated C.P. In her report of her clinical interviews with C.P., which occurred within six weeks of the assault, she related that C.P. told her that initially she was very embarrassed by the touching and afraid to tell her parents. She said nightmares made her afraid to go to sleep. She expressed fear that Carabillo might try to hurt her and her family. She also expressed a fear that others, particularly older men, might try to touch her. Dr. Heiman rendered a diagnosis of acute post-traumatic stress disorder. In her summary and recommendations, Dr. Heiman wrote: [S]he experienced some symptoms of distress, consistent with a diagnosis of Post-Traumatic Stress Disorder. Her difficulty sleeping, frequent nightmares, decreased grades, clinging behavior, and other expressed fears are all manifestations of the initial trauma and are behaviors typically seen in children who have been sexually abused.... It is recommended that C. be seen in short term therapy to help reduce symptoms and to help her clarify and resolve any feelings that might still linger as a result of this experience. It is anticipated that with a short course of treatment, along with 428 her parent's support, C.'s symptoms will totally abate and she will not suffer any long term consequences. In a supplemental report dated June 23, 1993, Dr. Heiman reported that she terminated visits with the child on February 4, 1991; however, since that date she had seen C.P. seven additional times: once in 1991, five times in 1992, and once in 1993. The 1993 visit was on June 22, 1993. Except for the last visit, some specific event triggered memories of the assault and "brought up additional issues which previously were not addressed." Dr. Heiman reported that C.P. experienced sleep difficulties in August 1991 and April 1992. Three visits in December 1992 were precipitated by sleep difficulties when she learned that Carabillo was being released from prison and returning to his home in a nearby community. Dr. Heiman noted that "[a]llowing C. to process her fears ... returned C.'s functioning to normal, and she was back on track developmentally." Dr. Heiman concluded her report as follows: C. has strong ego strengths and a supportive family, both of which mitigate against any permanent, long term consequence or emotional sequelae. As with any child, it remains a distinct possibility that C. could be triggered at any point in the future by events which bring back memories of the abuse, thereby producing transient short-term symptoms. Two years following the molestation, C. has experienced several episodes in which abuse issues have resurfaced and she has required therapy. With immediate intervention, however, C. shows the capacity to understand her feelings and reactions and quickly resolve any continued aftereffects from her abusive experience. The negligence claims asserted on behalf of C.P. individually and by her parents against the school board are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 through 12-3. N.J.S.A. 59:9-2d provides: No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00.... (emphasis supplied). In Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d 287 (1987), the Court rejected residents' claims against the municipality 429 for emotional distress caused by years of consumption of water from municipal wells contaminated by hazardous substances. Id. at 571, 525 A.2d 287. The Court noted that symptoms of depression, stress, health concerns, and anxiety constitute pain and suffering under the statute. Id. at 576, 525 A.2d 287. In Srebnik v. State, 245 N.J. Super. 344, 585 A.2d 950 (App.Div. 1991), this court held that Ayers compelled the rejection of a woman's direct emotional distress claim. Id. at 349, 585 A.2d 950. We commented that the "permanent loss of a bodily function" language of section 9-2d referred to injury to the physical components of the body and not injury to a party's psyche. Id. at 351, 585 A.2d 950. We did recognize, however, that damages for emotional distress could be recoverable, if they resulted in "permanent physical sequelae such as disabling tremors, paralysis or loss of eyesight." Ibid.; accord Collins v. Union County Jail, 291 N.J. Super. 169, 677 A.2d 210 (App.Div. 1996), cert. granted ___ N.J. ___, ___ A.2d ___ (1996). Plaintiffs argue that they are entitled to damages for pain and suffering under N.J.S.A. 59:9-2d based on C.P.'s "permanent loss of bodily function" which manifested itself in the form of the inability to sleep, bedwetting and nightmares. Plaintiffs urge that this position is supported by A.C.R. by L.R. v. Vara, 264 N.J. Super. 565, 625 A.2d 41 (Law Div. 1992). Plaintiffs' argument must be rejected because it is factually unsupported and contrary to the weight of authority. Dr. Heiman has never stated that the fears and sleep disturbances suffered by the child were of a long-term much less a permanent nature. Rather, Dr. Heiman noted that the problems experienced by the child were transitory and quickly resolved. The direct implication of her opinion is that she expects no permanent psychological or physical sequelae from this disturbing incident. Moreover, C.P. has demonstrated no physical sequelae of a permanent nature. A.C.R. also does not accurately reflect the weight of authority as reported in Srebnik and Collins. Moreover, a close reading of A.C.R. reveals a misperception of the ruling in Srebnik. The trial 430 court distinguished Srebnik by stating that "[i]n this matter the court has dismissed those claims that are factually similar to Srebnik, that is, the claims of the parents for emotional distress from observing the suffering of their children arising from the child's injury." Id. at 569, 625 A.2d 41. Addressing the direct claims of the children, the trial court held that the emotional injury suffered by the plaintiffs-victims of sexual molestation qualified as permanent loss of bodily function. Id. at 571-72, 625 A.2d 41. However, Srebnik, dismissed the direct claims of plaintiff for emotional distress. Srebnik, supra, 245 N.J. Super. at 349, 585 A.2d 950. Judge Longhi properly dismissed the Tort Claims Act claims against the school board. We do not mean to minimize the psychological injury suffered by the child. In a case not governed by the Tort Claims Act, the emotional distress occasioned by the molestation would be an element of damages. Hume v. Bayer, 178 N.J. Super. 310, 428 A.2d 966 (Law Div. 1981). However, it is solely within the authority of the Legislature to determine whether damages for such claims shall be allowed against a public entity. We observe, however, that since C.P. is a minor that dismissal should be without prejudice. Dr. Heiman notes that treatment of a child victim of sexual assault often occurs in segments. She expressed the situation as follows: Although therapy helps many victims of sexual abuse recover from the traumatic impact of their victimization, it is not uncommon to find that a victim of sexual abuse will reexperience unresolved pieces of the trauma at a later date or be triggered by different cues in the environment which then precipitate symptoms. In fact for children the work around the trauma is often accomplished in pieces. By that I mean, that children sometimes are only able to resolve aspects of their abuse in developmental chunks, so that at other developmental periods, issues that couldn't be accessed at earlier times are now prime and available (e.g., adolescence raises sexual identity issues which then triggers memories of the abuse). Thus, while the treating psychologist does not anticipate any permanent psychological disability due to the molestation by Carabillo, due to the nature of the developmental psychology of a child 431 to an adult, she simply cannot predict the future with any degree of certainty. The school board cannot claim that such a disposition prejudices it. It has received timely notice of the claim and has engaged in substantial discovery of the relevant witnesses. Moreover, R. 4:10-2 allows it to conduct discovery it considers necessary and appropriate. II Following dismissal of the tort claims, the school board sought to dismiss the federal civil rights claims. Two motions for summary judgment were denied, as well as a motion for leave to appeal. When the case was assigned to Judge C. Judson Hamlin for trial, the school board renewed its motion for summary judgment and Judge Hamlin granted that motion. Plaintiffs argue that the prior denials of the school board's motion for summary judgment became the law of the case and precluded renewal of the motion at the time of trial. Plaintiffs' position is without merit. The trial judge has the inherent power to review, revise, reconsider and modify interlocutory orders at any time prior to the entry of final judgment. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257, 531 A.2d 1078 (App.Div. 1987), certif. denied, 110 N.J. 196, 540 A.2d 189 (1988). A judge of coordinate jurisdiction should only consider vacating interlocutory orders entered by other judges when there is a clear showing of "fundamental error in law or the submission of new factual material." Cineas v. Mammone, 270 N.J. Super. 200, 208, 636 A.2d 1071 (App.Div. 1994); Sisler v. Gannett Co., Inc., 222 N.J. Super. 153, 159, 536 A.2d 299 (App.Div. 1987), certif. denied, 110 N.J. 304, 540 A.2d 1283 (1988). Judge Hamlin appropriately exercised his discretion to revisit the federal civil rights liability of the school board. Liability of public bodies pursuant to § 1983 has received considerable attention from federal and state appellate courts and the standard 432 by which the actions of public bodies are evaluated has evolved over time. Thus, the case law which motivated the denial of a previous motion for summary judgment may well have been altered a year later. Indeed, the case relied on by the initial motion judge, Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137 (5th Cir.1992) (Doe I), cert. denied, 506 U.S. 1087, 113 S.Ct. 1066, 122 L.Ed.2d 371, vacated, 987 F.2d 231 (5th Cir.1993), had a substantial subsequent history which ultimately led to the articulation of a different standard by which to assess the actions of the school board officials. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.) (Doe II), cert. denied, ___ U.S. ___, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). Moreover, the initial motion judge should have considered precedent from the Court of Appeals for the Third Circuit. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 80, 577 A.2d 1239 (1990). These circumstances, coupled with the Supreme Court's admonition to dispose of such claims whenever possible by motion, warranted a re-examination of the school board's application for summary judgment. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982); Tice v. Cramer, 133 N.J. 347, 374, 627 A.2d 1090 (1993). Adopting the deliberate indifference standard to evaluate the action by the school board and the SEAS coordinator to screen volunteers, Judge Hamlin granted the school board's motion for summary judgment. In his oral opinion he stated: Clearly had there been any prior incidents or knowledge it would have been brought to the Court's attention. The best we have is one hearsay answer in an interrogatory which indicates that assuming for purpose of this motion that a high school teacher in a locker room patted someone on the fanny once, it seems to me the underlying thrust of the most recent cases is not to impute liability to a Board for, if you will, simple negligence or failure to take significant steps absent some information which would create in the mind of an objective person an awareness of an ongoing imminent danger to members of the student body or participant in a particular program. * * * * * * * ... I think that the clear implication of the case law that's been cited is that there would have to be some affirmative proof of a pattern of conduct, pattern or previous incident which would give rise to a person of reasonable apprehension and knowledge that it would be likely to repeat if in fact no affirmative action were 433 taken, and I don't mean now the affirmative duty that was previously espoused in your earlier case law to do something to protect the child. In the instant case we have a one time situation arising at a shallow end of a pool wherein at least there were fifteen students and fifteen adults. To expect someone to foresee this sort of conduct absent some prior reported situation I think is to call upon us to impose a level of knowledge and foreseeability on people simply not consistent with human experience and understanding. The type of questions and background checks that are alleged to constitute deliberate indifference even on a long term policy basis simply I think is to ignore the clear understanding of human nature either in asking the question and what you're going to do with them and what are you going to do to check up if they give you an answer. Are we to officially assume that all things are false[?] That's really the underlying premise to the liability I think in this case ... I find Black particularly persuasive. I am satisfied that as a matter of law the factual circumstances here do not rise to the level of deliberate indifference. We agree. § 1983 does not confer substantive rights. W.B. v. Matula, 67 F.3d 484, 493 (3d Cir.1995). Rather, the statute redresses deprivation of rights created by the Constitution or a federal statute. Ibid.; see also Rivkin v. Dover Township Rent Leveling Bd., 143 N.J. 352, 363, 671 A.2d 567 (1996). In any § 1983 action, there are two levels of inquiry. First, we must identify "the person acting under color of law" that has caused the alleged deprivation. Rivkin, supra, 143 N.J. at 363, 671 A.2d 567. Second, we must identify the "right, privilege or immunity" secured by the Constitution or federal law. Ibid. The school board is considered a person and may be sued directly under § 1983. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611, 635 (1978); Henschke v. Borough of Clayton, 251 N.J. Super. 393, 401, 598 A.2d 526 (App.Div. 1991). However, a local government body cannot be sued under § 1983 for an injury inflicted solely by its employees or agents. Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037, 56 L.Ed.2d at 638. Stated otherwise, a municipality will not be held liable for federal civil rights claims based solely on respondeat superior. Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir.1995); Fagan v. City of Vineland, 22 F.3d 1283, 1291 (3d Cir.1994); Kollar v. Lozier, 286 N.J. Super. 462, 434 474, 669 A.2d 845 (App.Div. 1996); General Motors v. City of Linden, 279 N.J. Super. 449, 467, 653 A.2d 568 (App.Div. 1995), rev'd on other grounds, 143 N.J. 336, 671 A.2d 560 (1996). Rather, only in instances when "execution of a government's policy or custom ... inflicts the injury" will a local government be held liable. Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037-38, 56 L.Ed.2d at 638. In other words, a plaintiff must demonstrate that a "government custom or policy deprive[d] a person of his rights as a citizen" in order to recover under § 1983. Kollar, supra, 286 N.J. Super. at 474, 669 A.2d 845. C.P. argues that the molestation violated her constitutional right to personal bodily integrity. Such a right has been recognized in Stoneking v. Bradford Area Sch. Dist., 856 F.2d 594, 599 (3d Cir.1988) (Stoneking I), cert. granted and judgment vacated, 489 U.S. 1062, 109 S.Ct. 1333, 103 L.Ed.2d 804 (1989); see also Doe I, supra, 975 F.2d at 138. Having identified the constitutional right, plaintiff must then establish how the school board's action violated that right. In Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)(Stoneking II), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990), the court held that a student sexually molested by her band teacher could maintain a § 1983 action if she could establish that the school board "established and maintained a policy, practice or custom which directly caused her constitutional harm." Proof of the policy, practice or custom involves an examination not only of the decision made by a municipal officer but also that officer's decision-making authority. In Pembaur v. Cincinnati, the Court stated that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official even a policymaking official has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before 435 the municipality can be held liable.... [W]hether an official had final policymaking authority is a question of state law.... We hold that municipal liability under § 1983 attaches where and only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. [475 U.S. 469, 481-83, 106 S.Ct. 1292, 1298-1300, 89 L.Ed.2d 452, 464-65 (1986) (citations omitted) (emphasis supplied).] See also St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), and Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Plaintiffs argue that Woestemeyer was the only representative of the school board making policy decisions pertaining to the hiring of volunteers in the SEAS program. The school board responds that Woestemeyer did not have the authority to establish official policy for the school district. In reality, no policy, official or unofficial, existed with respect to the hiring, supervision, and firing of SEAS volunteers. This dispute regarding Woestemeyer's status as a final decision-maker is legally irrelevant and, therefore, does not require denial of the school board's motion for summary judgment, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529, 666 A.2d 146 (1995), for plaintiff must still establish that the school board acted with deliberate indifference which directly caused a deprivation of her constitutional right. Stoneking II, supra; Black by Black v. Indiana Area Sch. Dist., 985 F.2d 707, 712-13 (3d Cir.1993). "Deliberate indifference" is something of a contradiction in terms. Simmons v. City of Philadelphia, 947 F.2d 1042, 1089 (3d Cir.1991)(Sloviter, U.S.J., concurring). "Deliberate" connotes an intentional act, while "indifference" suggests a complete lack of interest. Id. at 1089-91. At a minimum, however, it encompasses knowledge of a risk, recognition of the harm posed by the risk, and a conscious decision to take no action or manifestly inadequate action to avoid the risk. Ibid. Plaintiff did not present sufficient evidence to create a genuine issue of material fact that any school board employee or official acted with deliberate indifference to her constitutional rights. This record is barren of any such proofs. 436 Indeed, Judge Hamlin noted the absence of any past incidents which would have alerted Woestemeyer or the school board to the risk. III Defendant Carabillo appeals from an order which granted plaintiffs' motion to turn over his IRAs. We reverse. Default was entered against Carabillo and after a proof hearing, a default judgment was entered in the amount of $321,961.20, including prejudgment interest. Plaintiffs levied on two IRAs with a combined value slightly in excess of $10,000. By order dated August 19, 1994, plaintiffs' motion to turn over the funds in these accounts was granted. Carabillo's motion for reconsideration was denied. On appeal, Carabillo argues that IRAs are exempt from claims of creditors pursuant to N.J.S.A. 25:2-1b. Plaintiffs counter that the statutory exemption for pension funds does not encompass IRAs, and if it does, Carabillo forfeited the exemption because he engaged in fraudulent transfers. The motion judge held N.J.S.A. 25:2-1b does not include IRAs. He also accepted plaintiffs' argument that Carabillo's post-indictment fraudulent transfers stripped his IRAs of any protection afforded by statute. He reasoned that the transfer of some assets "open[ed] up all his assets, not just [the] fraudulently obtained assets to execution." N.J.S.A. 25:2-1 provides: a. Except as provided in subsection b. of this section, every deed of gift and every conveyance, transfer and assignment of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against creditors. b. Notwithstanding the provisions of any other law to the contrary, any property held in a qualifying trust and any distributions from a qualifying trust, regardless of the distribution plan elected for the qualifying trust, shall be exempt from all claims of creditors and shall be excluded from an estate in bankruptcy, except that: 437 (1) no exemption shall be allowed for any preferences or fraudulent conveyances made in violation of the "Uniform Fraudulent Transfer Act," R.S. 25:2-20 et seq., or any other State or federal law; and * * * * * * * For purposes of this section, a "qualifying trust" means a trust created or qualified and maintained pursuant to federal law, including, but not limited to section 401, 403, 408, or section 409 of the federal Internal Revenue Code of 1986 (26 U.S.C. § 401, 403, 408, or 409). We are satisfied that this statute exempts IRAs from all claims of creditors. Section 1b exempts any property held in a "qualifying trust." "Qualifying trust" is defined as any trust created or qualified and maintained, including but not limited to section 408 of the Internal Revenue Code of 1986, 26 U.S.C.A. § 408. IRAs are governed by this section. The motion judge's reliance on the title of the 1993 bill which is the source of the current statute was misplaced. The title of legislation may be indicative of the provisions of a statute and the legislative intent; however, the title of a bill does not operate to negate the express terms of a statute. Gabin v. Skyline Cabana Club, 54 N.J. 550, 557, 258 A.2d 6 (1969). It is undisputed that Carabillo engaged in fraudulent transfers after his indictment on criminal charges. Plaintiffs argue that section 1b(1) strips the exemption bestowed by statute on Carabillo's IRAs. We disagree. N.J.S.A. 25:2-1b(1) provides: (1) no exemption shall be allowed for any preferences or fraudulent conveyances made in violation of the "Uniform Fraudulent Transfer Act," R.S. 25:2-20 et seq., or any other State or federal law; ... This subsection must be read in context and consistent with the legislative purpose. Matter of Mut. Benefit Life Ins. Co., 258 N.J. Super. 356, 375, 609 A.2d 768 (App.Div. 1992). It is apparent that the Legislature intended to create a safe harbor for pension funds, including IRAs; however, that safe harbor cannot be abused. Thus, an IRA cannot be used to evade a child support or equitable distribution obligation. N.J.S.A. 25:2-1b(2). Nor can a person create or fund an IRA when to do so would constitute a preference or fund an IRA with non-exempt assets when to do so 438 would constitute a fraudulent conveyance. However, an IRA which has not received preferential payments or fraudulently transferred assets is exempt from the claims of creditors, notwithstanding the fraudulent transfer of other assets. N.J.S.A. 25:2-29 also provides no relief to plaintiffs; it provides: a. In an action for relief against a transfer or obligation under this article, a creditor, subject to the limitation in R.S. 25:2-30, may obtain: * * * * * * * (2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by Chapter 26 of Title 2A of the New Jersey Statutes and by Rule 4:60 et seq. of the Rules Governing the Courts of the State of New Jersey; (emphasis supplied). Unquestionably, plaintiffs could seek to recover the assets that were fraudulently conveyed from the transferee. They could also seek to attach other property of the transferee as a remedy for a fraudulent conveyance. However, in this case the transferees were Carabillo's wife and other family members. The IRAs were never transferred. Affirmed in part; reversed in part. NOTES [1] These appeals are consolidated for purposes of this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266155/	681 A.2d 472 (1996) STATE of Maine v. Wayne ROCHE. Supreme Judicial Court of Maine. Argued June 10, 1996. Decided August 20, 1996. Norman R. Croteau, District Attorney, Margot Joly (orally), Assistant District Attorney, Farmington, for the State. John Alsop (orally), Alsop & Mohlar, Norridgewock, for Defendant. Before WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ. WATHEN, Chief Justice. Defendant, Wayne Roche, appeals from the judgment entered in the Superior Court (Franklin County, Chandler, J.) following a jury trial that resulted in a verdict of not guilty on one count of manslaughter and guilty on one count of operating under the influence ("OUI") in violation of 29 M.R.S.A. § 1312 (1992).[1] The jury considered as part of the evidence relating to the OUI charge the result of a mandatory blood-alcohol test administered pursuant to 29 M.R.S.A. § 1312 in any accident in which a death has occurred or will occur. On appeal defendant challenges the constitutionality of the statute because it mandates testing without probable cause to believe the vehicle operator has been driving while impaired. Defendant also contends that the court erred in finding that probable cause existed independent of the blood test result to believe that he had operated 473 his vehicle under the influence. Finally he contends that the court erred in admitting the blood test evidence without expert testimony to support its admission. We affirm the judgment. The facts giving rise to this case may be summarized as follows. Wayne Roche was employed as a professional truck driver. In March 1993 he was hauling logs in his tractor trailer north of Eustis when he came upon a Maine Department of Transportation ("DOT") work site where four workers were steaming a frozen culvert. One lane only was open where the work site was located, and there were two signs placed on the road north of the site to warn oncoming traffic of the position of the workers. A flagman stood on either end of the site. The flagmen used signs, which read "stop" on one side and "slow" on the other, to direct the traffic through the single lane. The third man was inside the steamer truck in the middle of the work site and the fourth man was working in the ditch with the steamer hose. The work site was at the bottom of a hill. Defendant slowed his truck as he approached the work site, but he did not obey the flagman's signal to stop. He moved into the open lane of travel and proceeded southbound through the work site. At the same time a northbound truck was traveling through the single lane in the direction of the flagman. Defendant tried to avoid colliding with the truck by swerving to the right and reentering the single lane of travel. As he attempted the maneuver he realized that there were more cars traveling behind the truck and he was forced to pull off to the right again. He brought his truck to a halt on the right shoulder of the road and the truck slowly rolled over, spilling the logs it had carried. Lloyd Sweetser, who had been working in the ditch with the steamer hose, tried to run away but was crushed by the contents of the truck and died. Defendant was taken to a local hospital for examination and treatment for minor injuries. At the hospital a blood test was ordered by an officer of the Farmington Police Department. The officer brought the blood test kit to the hospital at the request of the Franklin County Sheriff's office, which had informed him that the accident involved a fatality and that therefore defendant was required to be tested. A few weeks after the accident a state trooper, who investigated the accident scene and interviewed defendant on the day following the accident, went to defendant's home and questioned him about his use of alcohol. Defendant stated that he drank about a fifth of whiskey on the night before the accident. These statements were considered by the court in its determination of probable cause independent of the blood test result pursuant to 29 M.R.S.A. § 1312 and were offered as admissions in the State's case. Defendant was indicted on one count of manslaughter and one count of operating under the influence. He pleaded not guilty to both charges. His motion to suppress the blood test results was denied. The matter proceeded to trial and the jury returned a verdict of not guilty on the manslaughter count and guilty on the operating under the influence count. The court sentenced defendant to a 60 day jail term. Defendant contends that although the State fully complied with the statutory requirements of section 1312 the statute itself "abrogates the requirements of the Fourth Amendment." The premise of defendant's argument is that a warrantless search is permissible only when a recognized exception to the warrant requirement is present, for example a search conducted on the basis of exigent circumstances and probable cause. He concedes that exigent circumstances exist in virtually every blood-alcohol testing situation, but he maintains that probable cause must exist simultaneously in order to administer the test. Defendant cites as support for his argument Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which unquestionably establishes that a blood test is a search within the meaning of the Fourth Amendment. Schmerber considered the constitutionality of a blood test conducted incident to a lawful arrest. And were Schmerber the only case bearing on the constitutionality of a blood test conducted without a 474 warrant we would have to hold the statute unconstitutional. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), however, resolves any doubt that a blood test in certain limited circumstances may be conducted on less than probable cause and, indeed, on less than individualized suspicion. The justification for such a search is popularly known as the "special needs" exception to probable cause. The State contends that Skinner picks up where Schmerber left off on the question of justification for a governmentally compelled test to determine the presence of intoxicants in the blood. We agree. In Skinner the Federal Railroad Administration promulgated regulations that required certain employees to be tested for the presence of drugs or alcohol following certain major train accidents (e.g., accidents involving a fatality or property damage in excess of $.5 million). Railway labor organizations filed suit to enjoin the regulations. The Supreme Court held that the tests were reasonable even though there was no reasonable suspicion that any particular employee was impaired. The Court stated that the compelling governmental interests served by the regulations outweighed the employees' privacy concerns. It further stated that imposing a warrant requirement would do little to further the very purpose of a warrant because the circumstances permitting the testing and the limits of the intrusion were "narrowly and specifically" defined. According to the Court a warrant requirement would significantly hinder the purpose of the testing due to the perishable nature of the evidence. Skinner, 489 U.S. at 622-24, 109 S.Ct. at 1415-17. Moreover, the Court stated that an individualized suspicion requirement was also not necessary to render the search at issue reasonable. The testing posed only a limited threat to the employees' justifiable privacy expectation, especially because they participate in an industry subject to pervasive safety regulation. We have once before been asked to consider the impact of Skinner on the constitutionality of the implied consent law at issue in this case. In State v. Bento, 600 A.2d 1094 (Me.1991), we held that the statute may not be construed to require that probable cause of intoxication be established prior to a driver's submitting to a blood test. Further, we stated that the statute required only that probable cause be established at the trial in order for the test results to be admissible. We declined to address the impact of Skinner on the case because the constitutional argument was raised for the first time on appeal and because a remand was necessary to resolve inconsistent factual findings before we could determine whether the constitutional question was squarely presented. We noted in Bento that the legislature did not intend to treat an operator involved in a vehicle fatality in the same manner as an operator involved in a routine OUI stop. Bento, 600 A.2d at 1096. That observation bears repeating here. In the latter scenario probable cause must exist at the time a blood test is administered. In the former scenario, the statute contemplates that probable cause is implicated only when admission of the test result is sought at the trial. The justification for the search is linked to the gravity of the accident as well as the evanescent nature of evidence of intoxication and the deterrent effect on drunk driving of immediate investigations of fatal accidents. The State, in effect, conditions the privilege of driving on every driver's willingness to submit to a test, if, and only if, he or she is involved in a fatal or near fatal car accident. In all other OUI scenarios the State may proceed to search an individual only on the basis of probable cause. We believe Skinner confirms the permissibility of such a scheme. Skinner gauged the reasonableness of the search by looking at the surrounding circumstances: the fact the delay in testing would frustrate the government's purpose, the heavy regulation of the railway industry, and the minor intrusion occasioned by the tests. Certainly the State faces the same problems with testing delay, and the intrusion occasioned by Maine's scheme is no more than that in Skinner. Finally, although our state's highways may not be as regulated as railways, they are nonetheless highly regulated. *475 The Court's holding in Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), provides further support for our decision. In Sitz the Court upheld the constitutionality of a highway sobriety checkpoint program. The Court held that a vehicle stop amounted to a seizure, but concluded that it was reasonable under the Fourth Amendment because there could be no dispute about the magnitude of, and the States' interest in, eradicating the problem of intoxicated drivers. Because the seizure was so limited in time and intrusion, the balance weighed in favor of the state. The balance also weighs in the State's favor in the case at hand. We are mindful of the fact that courts in other jurisdictions have taken a more restricted view of the impact of Skinner when applied to highway fatalities. See King v. Ryan, 153 Ill.2d 449, 180 Ill.Dec. 260, 607 N.E.2d 154 (1992); Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). We are unable to conclude that the public's interest in preventing highway fatalities resulting from drunk drivers is less compelling than its interest in ensuring safety in rail transportation. Driving is an activity that is increasingly subject to regulation, and one involved in a fatal accident would ordinarily expect to be subjected to an investigation. Any intrusion added by section 1312 is not sufficient to constitutionally compel a requirement for a simultaneous determination of probable cause. Defendant's argument that the blood test results were inadmissible because no independent probable cause was proved pursuant to 29 M.R.S.A. § 1312 is without merit. Our review of the court's ruling relative to the issue demonstrates competent evidence of independent probable cause. The Defendant's remaining argument is without merits and requires no discussion. The entry is: Judgment affirmed. All concurring. NOTES [1] 29 M.R.S.A. § 1312 has been replaced by 29-A M.R.S.A. § 2411 (1996), which states, in part, that a person commits OUI if that person operates a motor vehicle "while under the influence of intoxicants." The text of 29 M.R.S.A. § 1312(11)(D) as it appeared in 1993, which is the subsection at issue in this case, provided in pertinent part: Notwithstanding any other provision of this section, each operator of a motor vehicle involved in a motor vehicle accident shall submit to and complete a chemical test to determine that person's blood-alcohol level or drug concentration by analysis of the person's blood, breath, or urine if there is probable cause to believe that a death has occurred or will occur as a result of the accident.. . . The result of a test taken pursuant to this paragraph is admissible at trial if the court, after reviewing all the evidence regardless of whether the evidence was gathered prior to, during, or after the administration of the test, is satisfied that probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxication of liquor or drugs or had an excessive blood alcohol level. 29 M.R.S.A. § 1312(11)(D) (emphasis added). 29 M.R.S.A. § 1312 has been repealed and replaced by 29-A M.R.S.A. § 2522 (1996).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2447735/	282 S.W.2d 940 (1955) Myrtle Mae CHANDLER, Appellant, v. R. C. WELBORN et al., Appellees. No. 3193. Court of Civil Appeals of Texas, Eastland. September 23, 1955. Rehearing Denied October 21, 1955. 942 Hawkins & Dean, Breckenridge, for appellant. Bradbury, Tippen & Brown, Abilene, for appellees. GRISSOM, Chief Justice. On May 7, 1951, Myrtle Mae Chandler, Florence Irion and W. J. Cunningham, Jr., filed suit against R. C. Welborn and W. J. Cunningham, Sr., in trespass to try title to Lots 4 and 5, Block 155, in the City of Abilene. On May 21, 1951, said defendants answered. On May 24, 1951, Hendrick Memorial Hospital filed a petition in intervention against all parties, both plaintiffs and defendants. It alleged that on November 20, 1950, W. J. Cunningham, Sr. was admitted to said hospital and had remained there since and owed it $1,573.20; that he had no property other than said lots; that on April 6, 1951, he purported to convey them to plaintiffs, who were his children and are his heirs at law, but that said deed was executed while he was insane. It prayed that said deed be cancelled, a receiver appointed and its lien established. Senator W. J. Cunningham, Sr., died September 3, 1952. In 1953 J. S. Warlick intervened. He alleged he had an interest in the controversy because Senator Cunningham was indebted to him for services as a nurse in the amount of $753 and that said deed was executed while he was insane. On January 14, 1954, plaintiff answered the pleas of intervention. They alleged the lots conveyed to them by the deed which intervenors sought to set aside constituted the homestead of Senator Cunningham and wife and was their community property when Mrs. Cunningham died on August 4, 1947; that it was the Senator's homestead when he executed the deed of April 6, 1951; that Mrs. Cunningham died intestate and plaintiffs inherited her one-half interest, subject to the homestead rights of the Senator; that, because said land was the Senator's homestead when he executed the deed, his one-half interest was owned by them freed of all claims of his creditors. Thereafter, said hospital filed an amended petition alleging it was a creditor of Senator Cunningham by reason of the services rendered to him from November 20, 1950 until his death on September 3, 1952; that the reasonable value thereof was $6,870.40 and that when the deed was executed he owed it $1,320.70. All intervenors adopted and made a part of their petitions against the grantees in the deed the cross action of one of the original defendants, R. C. Welborn. Mrs. Welborn alleged in her cross action that plaintiffs' suit in trespass to try title to the lots described in said deed was originally brought against her and W. J. Cunningham, Sr.; that he died on September 3, 1952; that plaintiffs were the children and heirs at law of Senator Cunningham and that she was a sister. She alleged she nursed and cared for the Senator during his illness; that she was a creditor; that she had rendered service to him, paid his medical bills and paid for other necessities; that, as a 943 creditor, she was interested in said suit and had a right to maintain a suit to cancel said deed, which was executed while he was insane, for which she prayed. Her cross action for cancellation of the deed was against all the grantees in said deed. Dr. C. L. Prichard intervened, alleging he was a creditor and had filed his claim with the administratrix and it had been rejected. He, also, adopted the cross action of Mrs. Welborn and prayed that the deed be cancelled. By separate pleadings, intervenors later alleged they were creditors of Senator Cunningham, deceased, and sued Mrs. Chandler as administratrix. They alleged they presented their claims to said administratrix and that they had been rejected. All the grantees in the deed had answered the petitions of the intervenors. Mrs. Chandler, as administratrix, filed separate answers to each of the intervenors' separate petitions filed against her as administratrix, adopting therein the prior answers of all the children and grantees, wherein they defended on the ground that the Senator was sane when he executed the deed and that the lots were his homestead when he executed the deed and that, therefore, they owned his interest, freed of all claims of intervenors. At the close of the evidence said administratrix moved for an instructed verdict on the following grounds: (1) that there were no pleadings asserting a cause of action within Articles 3996 and 3997 and, therefore, there was no cause of action alleged to set aside said deed; (2) there was no evidence of such a cause of action; (3) that defendant and intervenors were not entitled, as creditors, to set aside said deed because the Senator was insane; (4) intervenors were not entitled to set aside the deed without seeking some additional relief; (5) the evidence showed the lots constituted the homestead of the Senator when he executed the deed and, therefore, they were exempt from forced sale and, therefore, said deed could not be set aside by creditors; (6) intervenor's claims were barred by Article 3522; (7) it was conclusively shown the grantees took possession more than two years prior to the filing of their pleas in intervention and, if said deed should be set aside, intervenors' claims were barred by the two years' statute of limitation, Article 5526; (8) there was no "legitimate" evidence that intervenors were creditors and (9) the grantees in said deed were indispensable parties and no judgment setting aside said deed could be rendered without their joinder. The last objection was also urged to the charge, that is, that neither the defendant, R. C. Welborn, nor any intervenor was entitled to set the deed aside because the grantees therein were not parties to the suit to set the deed aside. They further objected to the charge because neither the defendant Welborn nor any intervenor was such a creditor as was entitled under the law to set aside the deed on the ground of the Senator's insanity, because a mere creditor was not entitled to cancel a deed on account of the insanity of the grantor. The court submitted only the issue of the grantor's mental capacity to execute the deed and a jury found he was then of unsound mind. The court rendered judgment that said children, the original plaintiffs in trespass to try title, recover title and possession of the land against the defendant R. C. Welborn, but that said deed be cancelled. The grantees in said deed, individually, and Mrs. Chandler, as administratrix, have appealed. The pleadings and evidence are to the effect that the property described in said deed was all of the Senator's property. One of his children, Mrs. Chandler, was appointed administratrix. As administratrix, she could have sued to cancel the deed. But, she was a grantee therein as well as an heir. She testified in answer to interrogatories propounded by appellants that the Senator was sane when he executed the deed to her and her sister and brother. Appellees presented their claims to said administratrix and they were rejected. Intervenors' suits are, in essence, an attempt by unsecured creditors to cancel the deed of their debtor because 944 he was insane when he executed it under such circumstances that, but for said deed, the property would have descended and vested in plaintiffs but subject to payment of intervenors' debts. Appellants' first point is that the court erred in holding that an unsecured creditor could set aside a debtor's deed because the debtor was insane, or for any reason other than those stated in Articles 3996 and 3997. Articles 3996 provides that every conveyance made with intent to defraud creditors shall, as to creditors, be void. Article 3997 provides that every conveyance by a debtor, without a valuable consideration, shall be void as to prior creditors, unless the debtor then had other property sufficient to pay his debts. Appellees also alleged the conveyance was made to defraud the creditors of W. J. Cunningham, Sr., and that he had abandoned his homestead, but judgment for the intervening creditors was based on the finding that he was insane when he executed the deed. Appellants contend Articles 3996 and 3997 state the only grounds for creditors to set aside the deed of a debtor, and that, since they did not bring themselves within said statutes, they cannot maintain a suit to cancel the deed. They cite as authority therefor John Hancock Mutual Life Ins. Co. v. Morse, 132 Tex. 534, 124 S.W.2d 330, 332, and Ransom v. Ransom, Tex.Civ.App., 252 S.W.2d 212, 213, and quote from Judge Hickman's opinion in the Morse case as follows: "The proposition is well settled in this state that, as between the parties to the transfer, a conveyance made in fraud of creditors passes title to the vendee, and is defeasible only at the instance of the creditors named in Articles 3996 and 3997, * ." Appellants further contend that because Senator Cunningham executed the deed while the lots were his homestead his creditors could not, after his death, have it cancelled. Said statutes state the grounds on which a creditor must rely to set aside a deed executed by a debtor-grantor for the purpose of defrauding his creditors but they do not refer to the question presented here, that is, whether an unsecured creditor, after the death of the debtor, has such an interest in the debtor's homestead that they can maintain a suit to cancel a deed thereto, executed while insane, when, but for the deed, at the debtor-grantor's death, the homestead would have descended and vested in his heirs, subject to payment of his debts. The deed referred to in said statutes could not be cancelled by a grantor who executed it for the purpose of defrauding his creditors, nor by his heirs or legal representatives. But, if the Senator had regained his sanity he could have set aside a deed to his children executed while he was insane. A deed executed by an insane man may be cancelled at the suit of the deceased debtor's representative or heir, without regard to said statutes. Jackson v. Jones, 74 Tex. 104, 11 S.W. 1061, 33 A.L.R. 51. The rights of the creditors, heirs and grantees in this suit are quite different from what they would have been had the deed been cancelled because the deed was executed by the grantor for the purpose of defrauding his creditors. See John Hancock Mutual Life Ins. Co. v. Morse, 132 Tex. 534, 124 S.W.2d 330, 333. At the execution of the deed the property was the homestead of the Senator. It could not have then been subjected to the claims of creditors. But, having died intestate, but for said voidable deed, the property would have descended and vested in his heirs, subject in their hands to the payment of his debts, because no constituent member of the Senator's family survived. Thompson v. Kay, 124 Tex. 252, 77 S.W.2d 201; 22 Tex.Jur. 327; Givens v. Hudson, 64 Tex. 471. Appellees' cross actions were not filed until after the Senator's death. The main question presented is whether, under such a fact situation, after the death of said debtor, the unsecured creditors have such an interest in said property that they should be permitted to maintain a suit to cancel the deed. We have been cited to 945 no authority directly decisive thereof and have found none. Since it appears the Senator's estate is actually in the hands of his sole surviving heirs, if the deed is cancelled, they can then be holding only as heirs, not as grantees. If they are holding as heirs, their right thereto is subject to the right of the creditors to collect their debts out of said property. In such an equitable proceeding the courts should look to substance rather than form. In Montgomery v. Culton, 18 Tex. 736, 749, the court said: "The obligation on the part of the heirs, who have taken the property out of the hands of the executor, who have elected to consider the administration as closed, would in itself be sufficient to authorize creditors of the estate to enforce their claims by suit * * ." * * * * * "But when the heir takes possession of the whole estate his obligation must be commensurate with the amount received, and extend as well to debts allowed and approved, as to those which have not been recognized as debts of the succession." It seems to us that the reasoning of said opinion is applicable here. When the heirs take possession of an estate under a deed, voidable because of the grantor-ancestor's insanity, the heirs should not be permitted to avoid payment of his debts simply by claiming under such a deed, and, under such circumstances, creditors have such an interest in said property that they should be permitted to maintain a suit to cancel the deed and look to the property for payment of their debts. Article 3314 provides that when a person dies intestate his property shall vest immediately in his heirs, subject to the payment of his debts. In Coggin Nat. Bank v. Smith, Tex.Civ.App., 63 S.W.2d 252, it was held that for a creditor to have property coming within the purview of said statute declared a trust estate subject to the payment of debts, the law imposes on him the burden of showing that said property belonged to the deceased debtor and was in the hands of his heirs. We think that was essentially the purpose of this suit. We know of no other way the creditors could have shown that, in equity, the property held by appellants belonged to the estate of the deceased and was subject to his debts than to bring this equitable proceeding to cancel the deed executed while he was insane. See Bethany Hospital Co. v. Philippi, 82 Kan. 64, 107 P. 530, 30 L.R.A.N.S., 194. In Ingersoll v. Gourley, 72 Wash. 462, 130 P. 743, 745, it was held that a creditor of the victim of a forged deed could maintain a suit to set it aside. In Westerfeld v. Stout, Tex.Civ.App., 129 S.W.2d 478, 479 (DCJ), it was held, in an action by a creditor of a decedent against his heirs to collect a debt from decedent's property, that the creditor must allege and prove the property was in the hands of the heirs sued. We think such was the effect of appellees' case. The creditors have alleged and proved that the property is in the hands of the heirs sued and what specific property came into their hands, to wit: the property described in said deed, and that, in equity, they are holding as heirs because the deed was voidable. When they set aside the deed, appellants' possession must necessarily be as heirs. In Van v. Webb, 147 Tex. 299, 215 S.W.2d 151, 154, our Supreme Court expressed the idea as follows: "It will be noted * * * that all heirs have conveyed to Mrs. Webb and, if the land involved was community property, she is in effect the sole distributee. * * * But the right of a creditor respecting the decedent's land in the hands of a distributee, as fixed by the provisions of Article 3314, was denominated in Blinn v. McDonald, 92 Tex. 604, 46 S.W. 787 [48 S.W. 571] (rehearing overruled 92 Tex. 604, 50 S.W. 931), as itself a statutory lien. See, also, Westerfeld v. Stout, Tex.Civ.App., 129 S.W.2d 478, Error Dismissed, judgment correct. Accordingly, under all 946 the facts, if the land in suit was community property it would be accurate to say that Mrs. Van has a statutory lien against it and proper for the court to award her a decree of foreclosure. She would not be entitled to a money judgment against Mrs. Webb but rather to a judgment which is in effect one in rem, subjecting the assets of Sidney Webb which may have come into Mrs. Webb's hands to the payment of the claim." (Emphasis ours.) We do not intend to imply that title to all the homestead was so held but only the Senator's undivided one-half interest therein. The other half was inherited by appellants from their mother. At her death title vested in said heirs, subject only to the homestead rights of her surviving husband. In Harms v. Ehlers, Tex.Civ.App., 179 S.W.2d 582 (Writ Ref.) it was held that upon the owner's death his property became a trust estate for the benefit of his creditors. Under the circumstances of this case, the Senator having died intestate, the homestead character of said property terminated because no constituent member of his family survived and his half interest in the property, but for said deed, vested in his heirs, subject to the payment of his debts. Thompson v. Kay, 124 Tex. 252, 77 S.W.2d 201. In this connection, see also Clark v. Gauntt, Tex.Com.App., 138 Tex. 558, 161 S.W.2d 270, 273, wherein it was held that a prospective heir cannot before his ancestor's death maintain a suit to adjudicate a right in property which he expects to inherit because until the ancestor dies he has no present right or interest in the property, but, that an assignment of his expectancy could be enforced, in equity, after the death of the ancestor. The reasoning of this opinion supports our conclusion that, after the Senator's death, his creditors had such an interest in the property as authorized them to maintain this suit. Upon his death the creditors had such an interest in the property as to give them a justiciable interest in the subject matter of this suit and the equitable right to subject said property to payment of their debts upon proof that he was insane when he executed the deed. See articles 3314 and 3464; 9 Am.Jur. 356; 7 Tex.Jur. 896; 12 C.J.S., Cancellation of Instruments, § 45, p. 1015; Groesbeck v. Groesbeck, 78 Tex. 664, 668, 14 S.W. 792; Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, 565, 196 S.W. 501; Cannon v. McDaniel, 46 Tex. 303, 316; Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 1000. Appellants' third point is that the court erred in permitting the creditors to cancel the deed because the grantees were not parties to the suit. This contention is answered by the prior statement of the pleadings. As heretofore shown, the creditors did file separate petitions in which they mentioned only the administratrix and, as administratrix, Mrs. Chandler answered their petitions. Said pleadings did not purport to supersede the creditors' prior pleadings in which they sued the grantees in the deed and, as creditors, asserted the right to cancel the deed. It is evident that by filing the later petition against the administratrix alone intervenors did not intend to abandon their suit against the grantees and that the court so treated the pleadings and the case was tried accordingly. Although such an exception is not shown, the pleadings should have been amended and the cross action as to all parties asserted in one petition but, under the circumstances, appellants were not injured thereby and reversible error is not shown. Appellants' fourth point is that the court erred in setting aside the deed on behalf of Mrs. Welborn because there was not sufficient evidence to sustain a finding that she was a creditor. The judgment was against Mrs. Welborn. The point is overruled. Appellants contend the court erred in refusing to permit Mrs. Chandler to testify by deposition in answers to their own direct interrogatories (1) to the effect that she considered the mental condition of Senator Cunningham was "good" and 947 "perfectly normal" when he executed the deed to her and her brother and sister and that such conclusion was based on her personal contact with and observation of her father; (2) in refusing to permit her to testify by deposition in answer to direct interrogatories propounded by plaintiffs to the effect that she remembered when her father executed the deed; that she was in his room at the hospital and saw him execute the deed; that she did not consider him to be of unsound mind; that she did not notice any unusual condition or conduct; that her father did not then do anything that impressed her with the idea that he did not know what he was doing and that she considered him to be normal mentally; (3) in further refusing to permit her answers to be introduced in evidence to direct interrogatories propounded by plaintiffs that on the day her father executed the deed to the children she heard him engage in conversation with her husband, the notary public who took his acknowledgment and his nurse and that he carried on conversations with said persons which she understood and which made sense. Appellants contend that, although the plaintiffs themselves took the deposition of said plaintiff, Mrs. Chandler, and inquired as to transactions with the deceased, that they should have been permitted on the trial to introduce her answers to their direct interrogatories relative to such matters because (1) Mrs. Chandler, as administratrix, had not yet, when said interrogatories were propounded, been made a party to the suit and (2) because intervenors propounded cross interrogatories 7 through 11 and obtained answers from Mrs. Chandler, as follows: "Q. Cross Int. No. 7: Isn't it a fact that during the time that W. J. Cunningham was at Hendricks Memorial Hospital during his last illness that at times he suffered from delusions? Answer to Cross Int. No. 7: I have no knowledge of such things. He certainly never suffered from any delusions in my presence or to my knowledge at any time while he was in the hospital. "Cross Int. No. 8: Isn't it a fact that W. J. Cunningham, during his last illness often talked about imaginary events? Answer to Cross Int. No. 8: No. He never talked to me or in my presence about any imaginary event. "Cross Int. No. 9: Isn't it a fact that during his last illness that W. J. Cunningham made many irrational statements? Answer to Cross Int. No. 9: No. He did not make any irrational statements to me or in my presence or within my knowledge. "Cross Int. No. 11: Isn't it a fact that during the last few months of W. J. Cunningham's life that there were numerous occasions when he failed to recognize old acquaintances? Answer to Cross Int. No. 11: Not that I know of. He never failed to recognize my husband or me when we went into his room until the morning of the day he died which was September 3, 1952." Article 3716 provides that in actions by or against administrators or heirs, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the intestate, unless called to testify thereto by the opposite party. The fact that Mrs. Chandler, who was then a party to the suit as an original plaintiff and as a defendant to intervenors' cross action against her and her brother and sister to cancel the deed, had not yet been made a party as administratrix, does not control the answer to this question. We think she was then, in effect, being sued as an heir, the substance of intervenors' suit being that the deed to the children was voidable and should be cancelled and that they were holding the property as heirs, subject to the payment of the debts of the deceased. However, regardless of this question, when the plaintiffs, who are appellants, offered to 948 introduce her answers to the direct interrogatories propounded by themselves, she was then a party to the suit as administratrix. Her capacity to testify is to be determined as of the time her answers to plaintiffs' direct interrogatories were offered in evidence, not when her deposition was taken. "The existence of the disqualifying interest must be determined as of the time the testimony sought to be excluded is offered * ." Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 825, 172 A.L.R. 707. Appellants further contend that Mrs. Chandler's answers to the direct interrogatories propounded by them were admissible because appellees, by propounding said cross interrogatories, called her to testify within the meaning of Article 3716. The mere taking of the deposition of the opposite party has been held by our Supreme Court to constitute the calling of the adversary to testify within the meaning of the statute. Allen v. Pollard, 109 Tex. 536, 212 S.W. 468, 469. We see no reason why said rule should not be applicable to appellants who called one of their own to testify by taking her deposition and propounding direct interrogatories relative to transactions by the witness with the deceased and thereby eliciting testimony which clearly was not admissible under the statute. We think the general rule with reference to cross interrogatories should be applied here. That rule is stated in 58 Am.Jur. 212, as follows: " * * if cross examination is restricted to matters brought out on direct examination of the witness it does not amount to incompetency of the witness with respect to transactions or conversations with the decedent. The disqualification is not waived by cross examining a witness on a matter collateral to his direct testimony and in the course thereof asking him as to a statement of the deceased which he denies, and when the trial court erroneously overrules an objection to the admission of evidence as involving a conversation or transaction with a decedent, the party making such objection does not ordinarily waive his rights under the statute by cross examining the witness on the same matters." To manifest reversible error appellants must show that the disqualification of said witness was waived by the appellees by bringing out new matter relating to transactions with the deceased concerning which she had not testified on direct examination. The record before us does not show that all of the direct interrogatories propounded by appellants to Mrs. Chandler and her answers thereto are a part of the record. But, if it did, it is not shown that the cross examination brought out new matter concerning which the witness had not testified in answer to plaintiffs' direct interrogatories but, to the contrary, indicates that she was cross examined only on matters collateral to her direct testimony. In Jones-O'Brien, Inc., v. Loyd, Tex. Civ.App., 125 S.W.2d 684, 690 (Writ Dis.), this court said: "It is not shown that by the cross-examination appellant made the witness its own or extended the inquiry beyond the scope of the direct examination by which the testimony was elicited." The general rule is stated in 159 A.L.R. 417 as follows: "The cross examination of a witness as to transactions of conversations with a deceased party was said in the original annotation not to amount to a waiver of the incompetency of the witness with respect to such matters, where the cross examination is restricted to the matters brought out on the direct examination of the witness. We hold that Mrs. Chandler was not "called to testify" by appellees. Certainly the rule should not be more strictly applied *949 to cross interrogatories in a deposition than to cross examination on the trial. We have considered the authorities cited by appellants. If they hold to the contrary, they are not in accord with said general rule and we decline to follow them. See also Jones, Evidence, Third Edition, Sec. 784, page 1215; 70 C.J. 373; Wyatt v. Chambers, Tex.Civ.App., 182 S.W. 16, 19; Lehman v. Howard, Tex.Civ.App., 133 S.W.2d 800, 802; Jackson v. Jones, 74 Tex. 104, 11 S.W. 1061; Perdue v. Perdue, 110 Tex. 209, 217 S.W. 694; White v. Smith, Tex.Civ.App., 276 S.W.2d 359, 364 (Writ Dis.). All of appellants' points have been considered and are overruled. We conclude that reversible error is not shown. The judgment is affirmed. LONG, J., not sitting.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1372709/	561 F.3d 842 (2009) UNITED STATES of America, Appellee, v. Jeffrey Allen SONCZALLA, Appellant. No. 08-1249. United States Court of Appeals, Eighth Circuit. Submitted: November 14, 2008. Filed: April 9, 2009. Craig Somo Hunter, argued, Duluth, MN, for appellant. Nathan Paul Petterson, AUSA, argued, Minneapolis, MN, for appellee. Before MELLOY, BOWMAN, and SMITH, Circuit Judges. 843 SMITH, Circuit Judge. Jeffrey Allen Sonczalla pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Finding that Sonczalla was an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the district court[1] sentenced him to the statutory mandatory minimum of 15 years' imprisonment. On appeal, Sonczalla argues that the district court erred in sentencing him as an armed career criminal because he does not have three predicate offenses as required by § 924(e)(1). We disagree and affirm. I. Background In October 2007, Sonczalla pleaded guilty to being a felon in possession of a firearm, in violation of §§ 922(g)(1) and 924(e)(1). His presentence investigation report (PSR) classified him as an armed career criminal subject to the mandatory minimum 15-year sentence under the ACCA because he had at least three prior "violent felony" convictions. See 18 U.S.C. § 924(e)(1). Specifically, the PSR identified the following Minnesota convictions as predicate violent felonies: (1) 1982 conviction for second-degree burglary; (2) 1984 convictions for escape from custody and unauthorized use of a motor vehicle; (3) 1988 conviction for third-degree burglary; (4) 1989 conviction for unauthorized use of a motor vehicle; and (5) 1999 conviction for third-degree burglary. Sonczalla objected to his classification as an armed career criminal. The district court adopted the findings in the PSR that Sonczalla's convictions qualified as predicate offenses under the ACCA and that Sonczalla qualified as an armed career criminal subject to the mandatory minimum 15-year sentence of § 924(e)(1). Accordingly, the court sentenced Sonczalla to a prison term of 180 months followed by three years of supervised release. II. Discussion On appeal, Sonczalla contends that his 1982, 1984, 1988, and 1989 convictions are not predicate offenses for applying the armed career criminal enhancement because his civil right of firearm possession has been restored with respect to those convictions. The ACCA provides that "a person who violates [18 U.S.C. § 922(g)] and has three previous convictions ... for a violent felony or a serious drug offense" is subject to a mandatory minimum prison sentence of 15 years. 18 U.S.C. § 924(e)(1). A "violent felony," in turn, is defined as follows: [T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.... Id. § 924(e)(2)(B). Whether a person has been convicted of a "crime punishable by imprisonment for a term exceeding one year" is "determined in accordance with the law of the jurisdiction in which the proceedings were held." Id. § 921(a)(20). But "[a]ny conviction ... for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such ... restoration of civil rights expressly provides that the person may not ship, 844 transport, possess, or receive firearms." Id. Minnesota law provides that a discharge restores a person who "has been deprived of civil rights by reason of conviction of a crime ... to all civil rights and to full citizenship," Minn.Stat. § 609.165 subd. 1, and requires that an order of discharge include a firearm restriction for "a person who has been convicted of a crime of violence," Minn.Stat. § 609.165 subd. 1a. "We have noted that for a person to have his civil rights restored by a state for the purposes of section 921(a)(20), the relevant state must actually have restored the felon's right to possess firearms." United States v. Gipson, 985 F.2d 412, 414 (8th Cir.1993). If the applicable state law prohibits a person from possessing any type of firearm, then that person's civil rights have not been restored for purposes of § 921(a)(20). Caron v. United States, 524 U.S. 308, 314-15, 118 S. Ct. 2007, 141 L. Ed. 2d 303 (1998); United States v. Collins, 321 F.3d 691, 698 (8th Cir.2003). A. Restoration of Civil Rights under 18 U.S.C. § 921(a)(20) Sonczalla argues that he does not have three predicate offenses as required by the ACCA because his civil rightsincluding his right to possess firearmshave been restored with respect to his 1982, 1984, 1988, and 1989 convictions under § 921(a)(20). Sonczalla emphasizes that his felon-in-possession-of-a-firearm charge arose more than ten years after he was discharged from these four convictions. Sonczalla's argument fails, however, because he misapprehends our standard for determining whether a defendant's right to possess firearms has, in fact, been restored. In order for a conviction to be excludable under § 921(a)(20), the record must show effective and actual restoration of the right to possess firearms. And overlapping firearm prohibitions may prevent the effective and actual restoration of that right. In United States v. Dockter, the defendants were found guilty of being felons in possession of firearms and ammunition, in violation of § 922(g)(1), and were subject to the mandatory minimum 15-year sentence of § 924(e)(1). 58 F.3d 1284, 1286 (8th Cir.1995). One of the defendants argued that two of his four prior burglary convictions did not qualify as predicate offenses under the ACCA because his civil rights had been restored with respect to those convictions under North Dakota law. Id. at 1289. North Dakota law prohibited a person convicted of a violent felony from owning or possessing firearms for ten years and a person convicted of any other felony from owning or possessing firearms for five years. Id. at 1290. We observed that "[d]ue to the overlap of the firearms prohibitions caused by his multiple offenses, [the defendant] has continuously been prohibited from possessing a firearm since he was sentenced for his first burglary. ..." Id. Rejecting the defendant's argument "that we should not look to the overlap effect of the firearms prohibitions but instead should examine each offense in isolation," we held that the "effective and actual restoration of the right to possess firearms" is required "in order for a conviction to be excludable under § 921(a)(20)." Id. at 1290-91. In accordance with Dockter, Sonczalla's civil rights were not restored under § 921(a)(20) unless his right to possess firearms was effectively and actually restored. At sentencing, Sonczalla's counsel admitted "that Mr. Sonczalla's right to bear arms has never been restored because he committed offenses within the applicable periods." Our review of Minnesota law and Sonczalla's burglary convictions confirms this concession. In 1975, Minnesota enacted a law prohibiting a person convicted of a "crime of 845 violence" from possessing a pistol "unless ten years have elapsed since the person has been restored to civil rights or the sentence has expired, whichever occurs first, and during that time the person has not been convicted of or adjudicated for any other crime of violence."[2] 1975 Minn. Laws ch. 378, § 3 (codified at Minn.Stat. § 624.713 subd. 1 (Supp.1975)). The statute was amended in 1993 to apply to, in addition to pistols, "semiautomatic military-style assault weapons," 1993 Minn. Laws ch. 326, art. 1, § 27 (codified at Minn.Stat. § 624.713 subd. 1 (Supp. 1993)), and it was amended in 1994 to apply to "any other firearm," 1994 Minn. Laws ch. 636, art. 3, § 27 (codified at Minn.Stat. § 624.713 subd. 1 (1994)). Finally, in 2003, the statute was amended to impose a lifetime ban on the possession of firearms by a person convicted of a crime of violence. 2003 Minn. Laws ch. 28, art. 3, § 8 (codified at Minn.Stat. § 624.713 subd. 1(b) (Supp.2003)). "The lifetime prohibition... applies only to offenders who are discharged from sentence or court supervision for a crime of violence on or after August 1, 1993." Minn.Stat. § 624.713 subd. 1. Sonczalla was convicted of second-degree burglary in 1982 and was released from prison for that offense on September 27, 1986. Under the law then in effect, he was prohibited from possessing a pistol until September 27, 1996. But on September 21, 1988, Sonczalla was sentenced to 41 months' imprisonment, which was stayed for five years with five years probation, for third-degree burglary. Sonczalla's prohibition period ran until ten years following the date of his discharge, a period that had not expired when he was again convicted of third-degree burglary in 1999. Sonczalla was released from prison in May 2001, and his supervised release term expired in March 2002; under the law then in effect, he was prohibited from possessing any firearm for ten years following the date of his discharge. Upon the amendment of § 624.713 subd. 1(b), in 2003, Sonczalla became subject to a lifetime prohibition on firearm possession. Because Sonczalla's right to possess firearms has never been effectively and actually restored, his civil rights have not been restored with respect to his 1982, 1984, 1988, and 1989 convictions under § 921(a)(20). These convictions, therefore, are appropriate predicate offenses for consideration in applying the ACCA. B. Predicate Violent Felonies under 18 U.S.C. § 924(e)(2)(B) Sonczalla also argues that he does not have three predicate offenses as required by the ACCA because, under our rationale in United States v. Williams, 537 F.3d 969 (8th Cir.2008), his 1984 convictions for escape from custody and unauthorized use of a motor vehicle, his 1988 conviction for third-degree burglary, and his 1989 conviction for unauthorized use of a motor vehicle are not predicate "violent felonies" as defined in § 924(e)(2)(B). Sonczalla does not dispute that his 1982 conviction for second-degree burglary and his 1999 conviction for third-degree burglary qualify as predicate violent felonies under § 924(e)(2)(B). In Williams, we recognized that the Supreme Court held in Begay v. United 846 States "that for a crime to fall within the `otherwise' clause [of § 924(e)(2)(B)(ii)] it must pose a similar degree of risk of physical injury as the example crimes and be similar in kind to the example crimes" listed in the statute. 537 F.3d at 972 (citing Begay v. United States, ___ U.S. ___, 128 S. Ct. 1581, 1585-86, 170 L. Ed. 2d 490 (2008)). Noting that the definition of "violent felony" under the ACCA and the definition of "crime of violence" under the Guidelines are interchangeable, we applied Begay to conclude that auto theft by coercion is a crime of violence and that auto theft by deception, auto theft without consent, and auto tampering are not crimes of violence. Id. at 971, 973-76. We reject Sonczalla's argument that his 1988 third-degree burglary conviction does not qualify as a predicate violent felony. Section 924(e)(2)(B)(ii) specifically identifies "burglary" as a violent felony. In Taylor v. United States, the Supreme Court interpreted the term "burglary" in § 924(e)(2)(B)(ii) in "the generic sense in which the term is now used in the criminal codes of most States." 495 U.S. 575, 598, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). According to the Court in Taylor, "a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S. Ct. 2143. We subsequently held that third-degree burglary under Minnesota law "is a generic burglary crime because it includes the elements of a generic burglary as outlined in Taylor ..." United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir.2006) (citing Taylor, 495 U.S. at 599, 110 S. Ct. 2143). Minnesota's third-degree burglary statute in effect when Sonczalla was convicted in 1988, like the third-degree burglary statute we considered in LeGrand, included "the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime," Taylor, 495 U.S. at 599, 110 S. Ct. 2143. Compare Minn.Stat. § 609.582 subd. 3 (1986) and Minn.Stat. § 609.582 subd. 3 (2006). Therefore, Sonczalla's 1988 third-degree burglary conviction is a predicate violent felony under § 924(e)(2)(B).[3] III. Conclusion Because Sonczalla has three predicate offenses as required by the ACCA, the district court did not err in sentencing him as an armed career criminal subject to the mandatory minimum 15-year sentence. Accordingly, we affirm the judgment of the district court. NOTES [1] The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota. [2] Minnesota law defines "crime of violence" as "felony convictions" for certain delineated offenses. Minn.Stat. § 624.712 subd. 5. Since the enactment of § 624.712 subd. 5, in 1975, burglary has been a delineated "crime of violence." 1975 Minn. Laws ch. 378, § 2 (codified at Minn.Stat. § 624.712 subd. 5 (Supp. 1975)). In 1987, § 624.712 subd. 5, was amended to include "burglary in the first, second, third, and fourth degrees" as crimes of violence. 1987 Minn. Laws ch. 276, § 3 (codified at Minn.Stat. § 624.712 subd. 5 (Supp.1987)). [3] Because Sonczalla's 1982, 1988, and 1999 burglary convictions qualify as predicate violent felonies under § 924(e)(2)(B), it is unnecessary for us to consider whether his escape from custody and unauthorized use of a motor vehicle convictions qualify as predicate violent felonies.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373064/	535 P.2d 693 (1975) Jacky Walter YEARGAIN, Appellant, v. The STATE of Oklahoma, Appellee. No. F-74-627. Court of Criminal Appeals of Oklahoma. May 13, 1975. As Corrected May 14, 1975. Tim K. Baker & Paul E. Simmons, Tahlequah, for appellant. Larry Derryberry, Atty. Gen., Bill Bruce, Asst. Atty. Gen., for appellee. OPINION BUSSEY, Judge: Appellant, Jacky Walter Yeargain, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Burglary in the Second Degree, Case No. CRF-73-134, in the District Court, Cherokee County. His punishment was fixed at a term of five (5) years imprisonment in the state penitentiary, and from said judgment and sentence a timely appeal has been perfected to this Court. At the trial, Archie Brittain testified that he was employed as a police officer for the Tahlequah Police Department. On December 5, 1973, at approximately 1:45 a.m., he observed the defendant attempting to break into the back of Stauss' Drug Store. On seeing Officer Brittain, the defendant ran and hid underneath a hearse parked at a funeral home. Officer Brittain 694 pulled the defendant from beneath the hearse and upon searching defendant, the officer found $10.00 or $12.00 in change, a silver dollar and some keys. The money was turned over to Jack Lay of the Oklahoma State Bureau of Investigation. Ray L. Weaver testified that he had known the defendant for practically all his life. On the night in question, he, the defendant, Hank Cookson, David Cookson and J.W. Glidewell were at the Weaver residence. Lindol "Hank" Cookson and J.W. Glidewell lived with him at the time. Everyone other than Weaver left and went to the Squeeze-In at approximately 9:30 p.m. and returned approximately two hours later. At about midnight the defendant and J.W. Glidewell left again, after discussing breaking into a pharmacy. They returned to his house approximately 45 minutes later carrying nine rifles and two pistols. They stated the guns were taken from Purdy's Sport Shop. The items were put in the attic. David Cookson next testified to substantially the same facts as Ray L. Weaver. Cookson further added that he and J.W. Glidewell subsequently transferred the firearms from the attic to a cabin on the lake owned by Glidewell's father. Gene Bolding testified that he was employed by the Tahlequah Police Department as Chief of Police, and that David Cookson showed him where the guns were located. The guns were on a screened-in porch and entry was made by unhooking a latch. He further testified he did not have a search warrant, nor permission from J.W. Glidewell to get the guns and he did not know, at the time, who owned the property. He identified the firearms in court as the ones he seized from the cabin. Jack Lay, an agent of the Oklahoma State Bureau of Investigation, testified that while Officer Brittain was booking the defendant, he observed the officer take a quantity of change from the defendant's pockets, including a silver dollar. He subsequently showed the silver dollar to Mr. Purdy who identified it. John Purdy next testified for the State, stating that he was the owner of the building described in the Information and Purdy's Sport Shop housed therein. That on the evening of December 4, 1973, he closed the store for the day and securely locked the two back doors of the building, turned the night lights on and left the store through the front door. Later, about 2:00 a.m., that night he was called to the store by police officers, to the back doors, both of which had been battered and entrance made through the south door. Missing from the store were seven shotguns and two pistols (for which he had registered serial numbers), silver and other coins from the cash register, including one silver dollar on which he had engraved "J P." The next morning Officer Jack Ray showed him a silver dollar and he identified it as the one taken from the cash register the night of the burglary. Later, Purdy identified the guns and pistols at the police station by registered serial numbers, after they had been recovered by the police from a cabin at Wildcat Point on Tenkiller Lake. He authorized no person to break into and enter his store and remove the personal property therefrom. For the defendant, Lindol "Hank" Cookson testified that he was the older brother of David Cookson and that the defendant showed him a silver dollar won in a pool game at the Squeeze-In. He further testified that the defendant and Glidewell left Ray Weaver's residence at approximately midnight. He observed guns at the house, but did not know how they had gotten there, nor did he hear a discussion about them. The defendant took the stand in his own behalf. He testified that he arrived at the Cookson apartment[1] at approximately 11:00 or 11:30 p.m. and that during this time he played pool, won a silver dollar and drank quite a bit of beer. After leaving the Squeeze-In, they all returned to 695 Cookson's apartment. Subsequently, he and J.W. Glidewell left to get some beer, but decided against this and returned to the apartment. After returning to the apartment, he decided to walk home and while walking home through an alley, a car turned into the alley and an individual, whom defendant did not know, started running. The defendant further testified that the car sped toward him and he became frightened and started running himself. He stated he hid under a hearse and came out when a policeman pointed a gun at him. He testified he was taken behind the drug store and beaten and searched. He stated that he "kneed" one officer in the crotch. He further testified he was only approximately 15 or 20 feet into the alley when the police arrived and not behind Stauss' Drug Store. He stated he was questioned by several people and urged to plead guilty so he could "get off lightly." The defendant closed his testimony by stating that he had won some of the money that he had on his person at the Cookson apartment, in a poker game. Gene Bolding next testified for the defense. He identified some photographs of the defendant which had been taken by Jack Lay. He stated that he had filed no charges against anyone other than the defendant and J.W. Glidewell. The defense then rested. The State, in rebuttal, called Archie Brittain who testified that he had checked the building and the alley between 11:00 and 11:30 p.m. on the night of the burglary and that if the doors had been damaged he would have noticed it. John Purdy was called in rebuttal and testified that he saw the defendant at the police station on the night of the burglary, but had not spoken to him or offered him any deals. On cross-examination, Purdy stated that he did not remember saying anything to defendant, but that he might have. Defendant's first proposition asserts that the trial court erred in not granting him a continuance. The record reveals the following sequence of events in this case. Defendant was arraigned on February 28, 1974, and trial was set for March 19, 1974, at 9:00 a.m. On the day of the trial, defendant appeared with counsel and withdrew his plea of not guilty and entered a plea of guilty. Sentencing was set for the following day. The defendant appeared for sentencing with counsel and requested to withdraw his guilty plea and reenter a plea of not guilty. The trial court granted defendant's request and set the trial for the next morning. The following morning defendant apprised the court that he had learned the evening before that his attorney had talked with a State's witness and he believed his attorney and the witness had conspired against him. Defendant then requested the trial court to appoint him a new attorney and grant him a continuance. Based on defendant's dissatisfaction with his present attorney, the trial court allowed his attorney to withdraw and appointed the defendant two new attorneys. This occurred at 10:00 a.m. on the day of trial. Thereafter, at 1:00 p.m. on the day of trial, defendant's new attorneys moved for a continuance, which was denied, and the case went to trial resulting in defendant's conviction. The defendant now contends that his new appointed attorneys were not granted sufficient time to prepare for trial. The granting or denying of a Motion for Continuance are matters within the sound discretion of the trial court, whose decisions are reviewable for abuse of discretion only. See Allcorn v. State, Okl.Cr., 392 P.2d 66 (1964) and Lamascus v. State, Okl.Cr., 516 P.2d 279 (1973). See also 17 Am.Jur.2d Continuance, paragraph 35, which states as follows: "It lies within the trial court's discretion to grant or refuse a motion for continuance, where the accused's counsel withdraws from the case, or is discharged, and the propriety of a refusal of such a motion depends primarily upon whether 696 the accused was denied substantial justice. A continuance is properly denied if there is adequate time available to prepare a defense after the accused is informed that his original counsel will not appear, and a defendant must exercise due diligence in attempting to avert the adverse consequences of counsel's withdrawal by seeking a replacement, or otherwise. Clearly, an accused may not discharge or replace original counsel merely for the purpose of delaying the trial by a claim that new counsel has not had adequate time for preparation. If no harmful consequence resulted from denial of a continuance, there is no ground for complaint, and where the withdrawing or discharged counsel was adequately replaced and the defense properly presented, it is generally held that refusal of a postponement was not prejudicial to the accused. However, where it appears that the refusal of a continuance in fact operated to deprive defendant of a fair trial, a conviction may be reversed." In the instant case, based on the record before us, it is our opinion that the defendant's request for a new attorney was merely for the purpose of delaying his trial. Further, we find that the newly appointed attorneys were competent members of the Oklahoma Bar Association; were given the aid of defendant's prior attorney, and properly presented the defendant's defense.[2] As there is no statutory or constitutional specification of time between appointment of counsel and trial, each case must stand or fall on its individual facts and circumstances. In the instant case we find no abuse of discretion in denying defendant's Motion for Continuance. Defendant's second and final proposition asserts that the search of the cabin, which resulted in the seizure of certain firearms and later admitted in evidence at defendant's trial, was illegal and defendant's Motion to Suppress should have been sustained. In the case of Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the Supreme Court of the United States stated: "In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure... ." In the instant case the defendant was not on the premises at the time of the alleged unlawful search and seizure; nor did the defendant have any proprietary or possessory interest in the cabin owned by Glidewell's father, where the guns were recovered and, as the defendant was charged and convicted for the offense of Burglary in the Second Degree, possession of the seized guns was not an essential element of the offense. Based on the above authority, we therefore conclude that the defendant did not have standing to contest the search of the Glidewell cabin, as Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). We, therefore, find this assignment of error to be without merit. For all of the above and foregoing reasons, the judgment and sentence appealed from is accordingly affirmed. BLISS, J., specially concurs. BRETT, P.J., dissents. BLISS, Judge (specially concurs): I find not the slightest merit in defendant's first proposition that the trial court 697 erred in not granting defendant a continuance of the trial. On Tuesday, March 19, 1974, defendant, with his original court-appointed attorney, appeared before Associate District Judge Lynn Burris and entered a plea of guilty to the crime charged in the Information, Burglary in the Second Degree, and at defendant's request pronouncement of Judgment and Sentence was passed to the next day, Wednesday, March 20, 1974, at 11:00 a.m. At the appointed time, the defendant and his said attorney appeared before the court, but asked to withdraw the plea of guilty, which the court permitted, entered a plea of not guilty and requested jury trial. The court then advised the defendant and his attorney as follows: "There will be a jury here at nine o'clock in the morning so have the defendant here and all of the witnesses so we can proceed to trial at that time. Mr. Yeargain, you need to be here at nine in the morning." To which the defendant answered, "I'll be here at eight." It appears that a jury term had been in progress and that this case was at the end or near the end of the term. The record reflects the defendant then caused subpoenas to be issued to and served by the undersheriff for his witnesses to appear for trial, the next day, Thursday, March 21, 1974, at 9:00 a.m. Immediately before the trial was to commence, as agreeably assigned, the defendant was present and permitted his said attorney to renew and present Motion to Suppress, heard as a Motion in Limine, which was overruled. The defendant, speaking for himself, then stated to the court, "I would like to make a motion for the trial to be postponed for me so that I could have equal time to get another attorney on the basis of conspiring with a witness against my defense ... See, he went and talked to one of the people who is going to testify against me." There was no complaint that defendant was not ready for trial. Although the record does not indicate the slightest impropriety by the court-appointed attorney, whom the defendant had seen questioning the prosecuting witness concerning certain aspects of the case, an absolute right of a defense lawyer, the trial judge in an apparent effort to appease the defendant, granted his request by appointing two other local attorneys to represent him, the originally court-appointed attorney voluntarily extending his help and services to his two successors in every way possible and was available to them throughout the trial. In effect, defendant had three court-appointed attorneys. This was at 10:00 a.m. and the trial court announced the trial would commence at 1:00 that afternoon and it did. The State used two of its witnesses in chief and during the testimony of the third witness, the court recessed until 9:00 a.m. the next day, Friday, March 22, 1974 when the trial was concluded. Every witness in the case, both for the State and the defense, lived at Tahlequah and all were available to the court-appointed defense lawyers during the overnight recess. There was no surprise State witness or witnesses. All witnesses called by the State in chief and rebuttal had testified in the preliminary examination and their testimony recorded by a court reporter and the tapes heard by the said lawyers and the court reporter was available to them at all times. During the trial, no occasion arose to attempt to impeach a State's witness on his testimony at the preliminary examination. There was no abuse of discretion on the part of the trial judge. The defendant had a fair and impartial trial for which he was fully prepared and adequately and completely represented. The record in the case is such that the trial court could easily have determined, and no doubt did, that the defendant's request for the appointment of a different attorney was made in bad faith for only one purpose, the ultimate purpose to gain a continuance and delay of the trial of his case, possibly beyond the term. He was totally unwarranted in making his self-serving, false accusation against his first court-appointed attorney, a trustworthy, capable and competent attorney, *698 who was fully prepared for trial at the appointed time agreed upon by the defendant himself. Lack of time for preparation for trial, as asserted by defendant, did not cause the defendant's conviction. He was convicted because the evidence in the case shows overwhelmingly his guilt. Not content with having committed the burglary charged and caching the valuable property taken, he returned to commit a second burglary the same night within a few hundred feet of the first and was caught red-handed by he police officers while in the act of trying to commit the second burglary and had on his person a quantity of coins, nickels, dimes, pennies and quarters and one roll of pennies and a silver dollar, engraved with the initials of the first victim, "J.P.", all taken during the burglary committed about an hour earlier. There could be no other verdict by the jury but guilty. As to the proposition of asserted error arising from the search of the cabin in which the guns and pistols were found and seized, the defendant had, and has, no standing to question the search and seizure and the trial court did not commit error in overruling defendant's Motion to Suppress the evidence. Assuming, however, the search and seizure invalid, the trial transcript shows the defendant guilty beyond a reasonable doubt without the introduction and benefit of the seized guns and pistols obtained by search of the cabin. The Supreme Court of Delaware[3] has stated the appropriate rule substantially as follows: Admission into evidence of item seized pursuant to invalid search was harmless error beyond reasonable doubt where evidence, exclusive of item seized, was sufficient to sustain conviction. Error in admission of evidence seized in violation of Fourth Amendment may be treated as harmless error under beyond-a-reasonable-doubt test and automatic reversal need not follow admission of illegally seized evidence if test is met. The Court cited in its opinion Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The instant case meets the test without the slightest difficulty, and there is no merit in this proposition. Accordingly, I concur. BRETT, Presiding Judge (dissents). I dissent to this decision because I believe a continuance should have been granted until the next day, at least. Also, the majority decision does not satisfy me that defendant lacked standing to challenge the unlawful search and seizure for the weapons introduced into evidence. NOTES [1] The Cookson apartment and the Weaver residence are one and the same. [2] The record reveals that the new attorneys, although they did not have benefit of the preliminary hearing transcript, did listen to the tape recording of the preliminary hearing prior to trial, and had these tapes available to them throughout the entire trial. [3] Day v. State, 291 A.2d 286 (Del. 1972).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373068/	266 S.C. 423 (1976) 223 S.E.2d 856 The STATE, Respondent, v. James Edward LAWRENCE, Appellant. 20198 Supreme Court of South Carolina. March 31, 1976. 424 Jeffrey A. Merriam, Esq., of Greenville, for Appellant. Messrs. Daniel R. McLeod, Atty. Gen., Emmet H. Clair and Harry W. Davis, Jr., Asst. Attys. Gen., of Columbia, for Respondent. March 31, 1976. Per Curiam: James Edward Lawrence, the petitioner herein, was convicted on September 25, 1972 of armed robbery, assault and battery of a high and aggravated nature and carrying a weapon. He was sentenced for these offenses to twenty-four (24) years, nine years and one year respectively. Notice of intent to appeal was not given within ten days of the rising of the court as required by Section 7-405 of the South Carolina Code of Laws, 1962 which was necessary to give this Court jurisdiction of an appeal from the convictions and sentences. State v. Wright, 228 S.C. 432, 90 S.E. (2d) 492 (1955). Petitioner filed an Application for Post-Conviction Relief, in the Greenville County Court, which was finally dismissed on September 17, 1973. Petitioner erroneously filed with this Court on September 14, 1973 a pleading captioned "Appeal to Return and Motion to Dismiss" which was dismissed by then Chief Justice Moss. Subsequent to the denial of post conviction relief, petitioner attempted a direct belated appeal to the sentencing court which was denied for lack of jurisdiction. A similar motion was sent to this Court and the clerk informed petitioner it could not be filed since he had failed to give notice of intention to appeal within ten days of judgment. See White v. State, 263 S.C. 110, 113, 208 S.E. (2d) 35 (1974). Petitioner then sought relief in the Federal District Court for the District of South Carolina. In reviewing petitioner's writ of habeas corpus Judge Martin found that the record did not reveal with certainty that petitioner was apprised of his right to appeal and, thus, an issue was raised 425 as to his waiving his right to direct appeal meaningfully and voluntarily. See Nelson v. Peyton, 4 Cir., 415 F. (2d) 1154, 1157 (1969). Shiflett v. Commonwealth, 4 Cir., 447 F. (2d) 50, 54 (1971). He directed the State to appoint counsel for petitioner in order to seek belated review of his conviction. The case is now before the Court on motion of appointed counsel for permission to docket a belated appeal. Appointed counsel has filed brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. (2d) 493 (1967), in which he concludes that two of the three exceptions are wholly frivolous and that although the third has merit in his opinion, it was not raised before the lower court and thus cannot be properly raised the first time on appeal. Exception One alleges that the trial judge charged the jury as to the facts. The Court, having reviewed the entire jury charge, finds that the trial judge did not charge the facts but rather he was careful to instruct the jury that they were the sole judges of the facts. Exception Two alleges that it was error for the trial judge to charge the law of murder and manslaughter when those offenses were not part of the indictment. We find no error. The trial judge defined the crimes of murder and manslaughter in merely an effort to aid the jury in understanding the distinction between assault and battery with intent to kill and assault and battery of a high and aggravated nature, both of which were possible verdicts under the indictment. The trial judge made it clear to the jury that murder and manslaughter were not possible verdicts. Specific approval of this charge is found in State v. Jones, 133 S.C. 167, 180 (1925), 130 S.E. 747. Exception Three alleges the court "erred in imposing a sentence of one year for the charge of carrying a weapon, the error being that in the circumstances of the present case this sentence is violative of the double jeopardy portion of the Fifth Amendment to the United 426 States Constitution." Although it is not clear what issue this exception raises and is subject to dismissal under Supreme Court Rule 4, Section 6, in view of the extraordinary history of petitioner's attempts at review we shall state what we conclude is the issue raised and rule on that. We understand petitioner's exception to allege that conviction of armed robbery and unlawful possession of a pistol constitutes double jeopardy when consecutive sentences are imposed to each charge. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional 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). Or put another way, "... conviction or acquittal upon the indictment is no bar, to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of these would have been sufficient to warrant a conviction upon the others. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offenses." Morey v. Commonwealth, 108 Mass. 433, 434 (1871); Accord, Callanan v. U.S., 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed. (2d) 312 (1961). It is apparent that when the test is applied to the instant case, petitioner's exception must fail. Proof of armed robbery does not necessitate proof of unlawful possession of a pistol but only that the robbery be committed while armed with a deadly weapon. Section 16-333 S.C. Code of Laws. One lawfully in possession of a pistol may commit armed robbery. The additional fact to be proved for conviction of unlawful possession of a pistol is that the person does not fit within the exceptions where one may lawfully carry a pistol enumerated in Section 16-129.1 of the Code. 427 We must refuse the motion of appointed counsel for a belated appeal as we have no jurisdiction over such an appeal in the absence of notice of appeal having been given and timely served. White v. State, supra, Code Section 7-405, 3 West's South Carolina Digest, Appeal and Error, Key No. 425-430. While this Court is without jurisdiction to entertain such an appeal, we have fully reviewed the trial records in connection with the motion which is before us and our review thereof has led to the conclusion there are no meritorious grounds for appeal, even if this Court had jurisdiction. Motion denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/694963/	53 F.3d 340NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Felipe TORRE-MURGUIA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 94-70378. United States Court of Appeals, Ninth Circuit. Submitted April 19, 1995.Decided April 26, 1995. 1 Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges 2 MEMORANDUM* 3 Felipe Torre-Murguia, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals' ("BIA") summary dismissal of his appeal from the immigration judge's ("IJ") decision finding Torre-Murguia deportable and denying his application for adjustment of status. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a). We grant the petition for review. 4 The BIA summarily dismissed the appeal because Torre-Murguia's notice of appeal (form EOIR-26) failed to list the issues he intended to present to the BIA with sufficient specificity, see 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A),1 and because he neither filed a brief on appeal nor an explanation for his failure to do so. 5 In Padilla-Agustin v. INS, this court held that the combination of an inadequate notice of appeal form, combined with "the BIA's strict Notice of Appeal requirements, and the failure to give any advance warning before an appeal is dismissed [violates] the due process rights of an alien." 21 F.3d 970, 977 (9th Cir.1994). Accordingly, because our opinion in Padilla-Agustin v. INS calls into question the adequacy of the BIA's summary dismissal procedures, we grant the petition for review. We remand so that the BIA may consider in the first instance whether its summary dismissal of Torre-Murguia's appeal was proper in light of Padilla-Agustin v. INS. 6 PETITION FOR REVIEW GRANTED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. The government's request for oral argument is denied ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Under 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A), the BIA may summarily dismiss any appeal in which "[t]he party concerned fails to specify the reasons for the appeal on [the Notice of Appeal Form] or other document filed therewith."	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/1373074/	535 P.2d 1117 (1975) C. C. C., Individually and on behalf of all other Juveniles similarly situated, Petitioners, v. The DISTRICT COURT FOR the FOURTH JUDICIAL DISTRICT, State of Colorado and the Honorable Donald E. Campbell, as Judge of the Juvenile Division of the District Court, Respondents. No. 26699. Supreme Court of Colorado, En Banc. May 27, 1975. 1118 Marie S. McCauley, Colorado Springs, for petitioners. Robert F. Russel, Dist. Atty., J. Tyler Makepeace, Deputy Dist. Atty., Colorado Springs, for respondents. DAY, Justice. This is an action to review a general order issued by the juvenile court judge of the El Paso district court. Petitioner brings this action on behalf of himself and all other juveniles similarly situated, and we find him qualified to do so under C.R.C.P. 23(a) and (b)(2). Petitioner seeks a writ in the nature of prohibition, alleging that the lower court has acted in excess of its jurisdiction. He also seeks a writ in the nature of mandamus restraining those actions. We issued a rule to the respondent court to show cause why relief should not be granted. We now discharge the rule. In October 1974 the juvenile court judge sent a directive to the warden of the county jail, the director of the juvenile Zebulon Pike detention center (Zeb Pike), referees, and a deputy district attorney. In pertinent part the directive states: "Because of the number of juveniles being held in the El Paso County Jail, it is necessary to publish standards for such placement to conform with the law, C.R.S.1963 (as amended) 22-3-6(a) and 22-3-6(c), and to fulfill the requirements of the juvenile judge. "Therefore, after October 1, 1974, the following procedures will be followed before any placement of a juvenile in the El Paso County Jail: . . . . . . "B. No child may be detained at the jail at the request of a policeman, deputy sheriff, state patrolman or other peace officer or the district attorney, unless: . . . . . . "2. The child has been taken to Zebulon Pike Detention Center and the staff has requested in writing, delivered to the warden, that the child be detained at the jail instead of the detention center and stating the reasons therefore. "C. The warden of the El Paso County Jail shall receive juveniles over the age of 14 on request of the Zebulon Pike Detention Center pursuant to the following procedure: "1. The request for confinement at the jail shall be in writing, in duplicate, and shall state the reason for requesting detention at the jail. "2. The warden shall retain the copy and deliver the original of the request for confinement to the Juvenile Judge at the next Court day after receipt. . . . . . . "E. The warden of the El Paso County Jail shall inform the Juvenile Judge and the Juvenile Probation in writing of any juveniles detained in the jail on Monday of each week, and shall notify the Juvenile Judge and the Juvenile Probation Department immediately or on the first Court day following the receipt of any juvenile, regardless of the reason or by whose order the child was placed in the jail . . .." Pursuant to the directive, petitioner was transferred from the Zeb Pike juvenile detention facility to the county jail. Three days later, on order of the court, he was re-transferred back to Zeb Pike. He and 1119 other residents of Zeb Pike remain subject to transfer under the directive. Petitioner filed a motion for review of the directive with the respondent judge, which was denied. He thereafter sought relief in this court, contending that the directive is in derogation of the Children's Code (Code), section 19-2-103(6)(a),[1] C.R.S.1973 which states: "No child under the age of fourteen and, except upon order of the court, no child fourteen years of age or older and under sixteen years of age shall be detained in a jail, lockup, or other place used for the confinement of adult offenders or persons charged with crime. The exception shall be used by the court only if no other suitable place of confinement is available." Petitioner feels the directive is not a viable court order. Moreover, he alleges it is an unconstitutional delegation of the lower court's statutory powers to another branch of the government in violation of Colo.Const., Art. Ill, and the explicit legislative intent of this section of the Code. Finally, he insists that the directive as applied violates statutory rights under the Code, and the constitutional rights of due process and equal protection guaranteed by both the U.S.Const., amend. XIV and the Colo.Const., Art. II, section 25. We discuss each issue in turn. I. The Code does not define "order." See section 19-1-103, C.R.S.1973. However, court order has been broadly defined in case law as any direction of a court not contained or included in a judgment. State ex rel. Chinchilla Ranch v. O'Connell, 261 Wis. 86, 51 N.W.2d 714 (1952); Foreman v. Riley, 88 Okl. 75, 211 P. 495 (1923); Tyvand v. McDonnell, 37 N.D. 251, 164 N.W. 1 (1917). In this instance we accept the established concept, and find that the October 1974 directive is an "order" satisfying the statutory requirement. II. The Code gives only a court the power to detain 14 and 15-year old children in an adult detention facility. The court cannot delegate its judicial power to the executive branch. See Denver v. Lynch, 92 Colo. 102, 18 P.2d 907 (1932); People v. Swena, 88 Colo. 337, 296 P. 271 (1931). However, the separation of powers delineation should be made on a case-by-case basis. MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972). The legislature envisioned a sharing of authority over juveniles under the Code. The interworking of the courts and various executive agencies including the Department of Institutions, is provided for throughout the Code. In balancing respective powers, the Code contemplates that the courts will provide protection from the possible infringement upon the constitutional rights of juveniles by acts of executive agencies. See People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973); People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971). The order in question provides such protection through a judicial review of the transfer on the following day. The juvenile court issued the order, and the staff of Zeb Pike and the warden of the El Paso county jail follow its direction under judicial supervision. We cannot say under the circumstances as shown in the answer to show cause that there has been an unconstitutional delegation of power. Nor has legislative intent been thwarted. III. Children are entitled to certain constitutional protections under the Code. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); see generally knapp and Reyes, supra. The statute was designed to benefit youthful offenders, and should not be construed to diminish their *1120 rights. Denver v. Juvenile Court, 182 Colo. 157, 511 P.2d 898 (1973). However, it is for the benefit and best interests of all Colorado's children, so a balancing effect must take place. The overcrowded nature of the Zeb Pike detention center is a continuing fact in El Paso County. When the facility becomes full and unmanageable, those in charge want to transfer potentially violent juveniles to another place. Balancing the interests of all the children concerned against the blanket order, we hold this particular directive viable. It does not violate equal protection of the laws for there is a rational reason for its existence. Faced with the overworked, overcrowded and understaffed Zeb Pike facility, the judge has seen numerous juveniles placed at the county jail as the only other suitable place available for confinement. This is not the goal of the Code, but it is nevertheless a fact of life, and the judge so found. To satisfy the requirements of due process and fundamental fairness, he has sought to issue standards for procedural regularity for these transfers. With the careful and selective use of this transfer authority by the Zeb Pike officials and the warden of the county jail, those transferred shall feel no injustice while those left behind at Zeb Pike will have elbow room and the type of care the detention center was meant to provide. We call attention to section 19-2-103(6)(b) which mandates that the juveniles transferred will not be co-mingled with adult offenders at the county jail. Furthermore, under the order the child once transferred must receive the speedy review anticipated by section 19-2-103(2). The statute gives no indication that a separate court order would be required under the circumstances facing this judge each time it is necessary to transfer a juvenile to the county jail. The rule is discharged. KELLEY and ERICKSON, JJ., do not participate. NOTES [1] Formerly 1971 Perm.Supp., C.R.S.1963, 22-2-3(6)(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373059/	24 Ariz. App. 37 (1975) 535 P.2d 629 Dorothy Dean STANLEY, Appellant, v. Larry B. STANLEY, Appellee. No. 1 CA-CIV 2454. Court of Appeals of Arizona, Division 1, Department A. May 22, 1975. Rehearing Denied June 18, 1975. Review Granted July 14, 1975. 38 Flynn Kimerer Thinnes & Galbraith by John J. Flynn, Clark L. Derrick, Phoenix, for appellant. Trew & Woodford by R.R. Woodford, Phoenix, for appellee. OPINION OGG, Presiding Judge. This appeal was instituted by appellant Dorothy Dean Stanley (Wife) to challenge the trial court's modification of a child support provision in the original divorce judgment of May 25, 1964. The pertinent portion of the original decree states that the Husband is to pay the Wife the sum of $250 per month for the support of their minor child, Larry B. Stanley, Jr. After an order to show cause hearing on March 15, 1973, the court signed a modification of the original judgment which terminated the duty of appellee Larry B. Stanley (Husband) to support his son. The termination date was to be August 9, 1972 the date his son became eighteen years old. The court found that the 1972 amendment to A.R.S. § 8-101 (effective August 13, 1972), which changed the age of majority from twenty-one years to eighteen years, was dispositive of the case. It is the Wife's position that the amendment, enacted some eight years after the original divorce judgment, cannot operate retrospectively to modify the prior judgment and to deprive their son of his right to child support past the age of eighteen. It is Husband's position that the amendment not only established the age of majority for all persons at eighteen years, instead of twenty-one, but also emancipated such persons. The amendment grants broad new rights. For example it allows a person eighteen years old to be a qualified elector, to be treated as an adult in the courts of this state, to run for political office, to be a member of a board of directors, to hold various licenses and to marry without parental consent. The Husband further argues that since his son is now eighteen, he is emancipated and no longer has the right to receive support payments. See Crook v. Crook, 80 Ariz. 275, 296 P.2d 951 (1956). In our opinion, it was error to terminate the child support award on Larry B. Stanley, Jr.'s eighteenth birthday. It is a well established rule of law in this state that child support payments may not be altered retroactively. McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961); Adair v. Superior Court, 44 Ariz. 139, 33 P.2d 995 (1934); Baures v. Baures, 13 Ariz. App. 515, 478 P.2d 130 39 (1970); Badertscher v. Badertscher, 10 Ariz. App. 501, 460 P.2d 37 (1969). The substantive right of a child to parental support cannot be taken away by a legislative amendment in the absence of an express intention by the legislature to give such an amendment retroactive application. Strum v. Strum, 22 Ill. App.3d 147, 317 N.E.2d 59 (1974); Baker v. Baker, 80 Wash.2d 736, 498 P.2d 315 (1972); Vicino v. Vicino, 30 Conn.Sup. 49, 298 A.2d 241 (1972). A.R.S. § 1-244 reads: "No statute is retroactive unless expressly declared therein." It is the established law of this state that retrospective application of legislative enactments must be avoided unless there is a clearly expressed intention to the contrary. Headley v. Headley, 101 Ariz. 331, 419 P.2d 510 (1966); Ferguson v. Superior Court, 76 Ariz. 31, 258 P.2d 421 (1953). We find nothing in the 1972 amendment to A.R.S. § 8-101 that expressly declares the new age of majority shall have retroactive application. The Arizona case law dealing with our question is limited. In Ruhsam v. Ruhsam, 110 Ariz. 426, 520 P.2d 298 (1974), the Arizona Supreme Court interpreted a postnuptial agreement that was part of a divorce decree wherein the husband agreed to support each child until emancipated by majority. The court held that the husband was obligated to provide support to the eighteen year old child until emancipation at twenty-one years of age. The court reasoned that the contract was entered into when "majority" was legally attained at twenty-one and that the parties must have so intended. The court further held that such a support obligation was not enforceable by contempt once the child has reached eighteen. See Savage v. Thompson, 22 Ariz. App. 59, 523 P.2d 110 (1974); Cordova v. Cordova, 21 Ariz. App. 431, 520 P.2d 525 (1974). Although the reasoning in Ruhsam has some bearing on this case, we have no Arizona cases dealing squarely with the facts of this case. Waldron v. Waldron, 13 Ill. App.3d 964, 301 N.E.2d 167 (1973), is an Illinois Appellate Court decision squarely on point. In interpreting a decree that ordered support for each of the minor children, the Illinois Court held that the father must continue support until his son reached 21 years of age, although the legislature had subsequently reduced the age of majority to 18 years. In that case the court cited cases from Kentucky which involved property settlement agreements similar to the agreement in Ruhsam. See Kirchner v. Kirchner (Ky. 1971), 465 S.W.2d 299; Collins v. Collins, (Ky. 1967), 418 S.W.2d 739. In reasoning that the Kentucky "property settlement agreement" cases such as Ruhsam were persuasive authority in a courtordered child support case (such as the case at issue), the court stated: "Although all of these cases involved decrees resulting from negotiated settlements and were decided on the principle that the intention of the parties governs, we believe something closely akin to that principle is applicable in the instant case. As the appellant pointed out in his brief, it has long been a rule of construction in determining the meaning of judgments or decrees that one must examine the situation as it existed at the rendition of the judgment." As a matter of first impression, we believe retroactive application of the "majority" amendment would seriously affect numerous individuals and families in this state who are dependent upon such support orders. The vast majority of divorce decrees of the past decade involve support orders similar to the order in this case rather than the property settlement agreement incorporated into the judgment as seen in the Ruhsam case. No parent who has raised a family in recent times will contest the fact that children become more expensive as they grow older. Those persons in the age group of eighteen to twenty-one frequently need additional support if advanced training or college education is contemplated. 40 While it is difficult to articulate in any succinct manner, we are dealing with the broad fundamental concepts of separation of powers, due process and the finality of judgments. At the time the support order was entered in this case, the parties and the court understood the age of majority to be twenty-one. It is only reasonable that the court took that into account at the time the property was divided, the custody determined and the amount of support fixed. The division of property, the child custody provisions, visitation rights, alimony and child support are all interrelated in any rational decision-making process in the divorce action. Any new legislation changing the age of majority will not only affect the support provision, but in many cases it will change the basis for the trial judge's decision on numerous other provisions in the decree. To apply the "new age of majority" to divorce decrees entered prior to August 13, 1972, would in effect permit an across the board modification of prior judgments. This would erode the solid judicial concept that judgments are valid and binding until modified for good cause after notice and a hearing to the parties involved. We believe the statement made by the Washington Supreme Court in Baker v. Baker, supra, expresses a sound legal concept. The Court, after stating the new age of majority would not be retroactively applied, stated: "Further, the legislature is without power to set aside, annul, or change the liability upon a judgment affecting solely the rights of private parties by the enactment of a general law." The ramifications of this decision will have far-reaching social consequences. Take the case of a mother who was awarded custody of a child who is now 18. If she is unable to work she may be totally dependent upon the support award from the prior divorce decree. If support is terminated, education and further training for such youth may also stop. Unless the eighteen year old suddenly becomes selfsufficient both the mother and the 18 year old may be forced to seek some form of public support financed by the taxpayers of this state while the working father escapes all responsibility. The trial court and all parties to a divorce action heard after the effective date of the new age of majority can take this age change into account and make appropriate contracts, establish trusts for the education of the children or make adequate provisions in the divorce decree. We have no doubt that the legislature has the power to change the age of majority. However, we do not believe the Arizona Legislature intended to modify prior divorce decrees nor do we believe the Legislature has the authority to modify prior divorce decrees. If the age change is interpreted to modify divorce decrees entered prior to August 13, 1972, we will effectively give a retroactive effect to such legislation and modify the prior decrees without a hearing or notice to the parties involved. For the reasons stated above, the order terminating the duty of support as set forth in the modified judgment of March 15, 1973, is vacated and the decision of the trial court is reversed. Nothing contained in this decision shall be construed as restricting the inherent authority of the trial court to modify or amend orders pertaining to child support when a material change in circumstances has occurred and such modification is based on the need of the child and the ability of the parent to pay. DONOFRIO, J., concurs. FROEB, Judge (dissenting): I differ from the majority in their view of the nature of rights and duties altered by the Legislature in reducing the age of majority from twenty-one to eighteen. When the Legislature enacted this change it altered the legal status of all minors who had attained or would attain in the future the age of eighteen from and 41 after August 13, 1972, the effective date of the act. The legislation was neither retrospective nor prospective in its operation. It affected all minors upon its effective date. The Arizona Supreme Court has held, "... the rule is settled beyond a doubt that majority or minority is a status rather than a fixed or vested right, and that the legislature has full power to fix and change the age of majority." Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 558, 159 P.2d 292, 301 (1945). There are no vested rights in future child support payments. Jungjohann v. Jungjohann, 213 Kan. 329, 516 P.2d 904 (1973); Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972). Similarly, there are no vested property rights in personal privileges that attach during a minority status. Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974). The reasoning of the majority opinion applies a vested rights theory to minority status. But if these rights are vested, at what point do they vest? Under the majority view it would seem that any person born prior to August 13, 1972, would be entitled to support until age twenty-one and it would not be limited to those persons for whom there had been a court order for support prior to that date. I note that the reduction in the age of majority by the Legislature was comprehensive legislation which amended no fewer than 90 sections of Arizona Revised Statutes. Chapter 146, Laws 1972. Yet, I can find only two instances where the Legislature, using express language, preserved the minority status for some members of the class until age twenty-one and these are unrelated to the duty of support. See Chapter 146, Sections 88 and 89, Laws of 1972. With these two exceptions no intent can be found in this legislation that some minor children would become adults at eighteen while others would wait until reaching twenty-one. The rights and duties at issue in this case are those which arise by virtue of the child support laws in Arizona and not by reason of any agreement of the parties. Thus Ruhsam v. Ruhsam, 110 Ariz. 326, 518 P.2d 576 (1974), modified 110 Ariz. 426, 520 P.2d 298 (1974) has no application here, since in that case there had been contractual arrangements between the parents concerning support for the minor child. The existence of the agreement was pivotal in that decision. The court has continuing jurisdiction to modify orders of support which it has entered for the benefit of a minor child. Thus there is no vested right to continued support in a certain monetary amount where circumstances are shown to have changed. Likewise the change brought about by the Legislature in reducing the age of majority from twenty-one to eighteen is in the same category, only in the latter instance it is brought about by changes in the law generally through legislative enactment rather than a change wrought by the parties in an individual case. Can it be said that there was neither intent nor authority in the legislation here at issue to accomplish that which the courts undertake each day? The Baker, Strum, Vicino and Waldron cases cited by the majority support their conclusion but in my view they diverge from sound legal principle. The holding of the North Carolina Supreme Court in Shoaf v. Shoaf, supra, which considered the precise issue involved here, seems to me more persuasive. The court there held: "A child support payment falls in the same category as an alimony payment and becomes subject to review by the court upon change of conditions. The Legislature unequivocally changed the conditions by fixing a different date upon which liability to support a child terminated." 192 S.E.2d at 303. For the reasons stated, I would affirm the order of the trial court terminating the appellee's obligation of support when the minor child reached eighteen.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266129/	681 A.2d 1125 (1996) Anthony C. DERRINGTON, Appellant, v. UNITED STATES, Appellee. Nos. 93-CF-1335, 95-CO-101. District of Columbia Court of Appeals. Argued May 8, 1996. Decided August 1, 1996. 1127 Deborah A. Persico, Alexandria, VA, appointed by this court, for appellant. Leanne Shaltis Fallin, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee. Before SCHWELB and RUIZ, Associate Judges, and PRYOR, Senior Judge. SCHWELB, Associate Judge: Anthony Derrington was convicted of selling crack cocaine to an undercover officer. He contends on appeal that his trial attorney, Douglas Wood, Esq., had a disqualifying conflict of interest and that Wood's performance was otherwise constitutionally deficient. The government responds that any conflict of interest was hypothetical or speculative, and that Wood's representation of Derrington satisfied constitutional standards. Concluding that an actual conflict of interest adversely affected Wood's representation, we reverse. I. BACKGROUND On December 4, 1991, Derrington and his co-defendant, Ricky Tillery, were charged by grand jury indictment with one count of distribution of cocaine and one count of possession of cocaine with intent to distribute it. See D.C.Code § 33-541(a) (1993). Derrington retained Wood to represent him with respect to these charges,[1] and Tillery was represented by Bernard Grimm. Wood and Grimm were former law partners, and they shared office space. When Derrington retained Wood, Wood also represented Donald "Pig" Taylor. Pig Taylor was a defendant in the so-called R Street Crew case, an unrelated prosecution in the United States District Court for the District of Columbia. At that time, Grimm also represented McKinley Board, another defendant in the R Street Crew case. A. The Pre-Trial Proceedings. At a status hearing on October 21, 1992, nearly six months before Derrington's trial, Wood informed the judge that he might have to withdraw as Derrington's attorney because of a potential conflict of interest. Wood told the judge at a bench conference: I represent Mr. Derrington in this case and in another case. And, yesterday, Mr. Grimm was in a trial, the R Street trial, over in federal court and it came out at that trial [that] Mr. Derrington was ... an informant in that case against the R Street Crew. I represented [Donald Taylor,] one of the members of that ... alleged organization for two to three years on a variety of matters. Mr. Derrington denies that he worked with the government as an informant. * * * * * I raised the issue with Mr. Derrington this morning. He denies it. I've prepared a motion to withdraw.[[2]] What I would like to do is probably, if we could continue thisand I can contact Mr. Duncan [the prosecutor in the R Street Crew case] to find out if Derrington is the informant. 1128 Wood explained the potential conflict as follows: If [Derrington is the informant], then I'd have to withdraw. Because Mr. Derrington has this case and another case and he would need someone to bargain for him to getto help out with these cases and probably use as a bargaining chip ... his informant status. The status judge inquired whether Wood's relationship with Taylor was ongoing. Wood responded: I represented him prior to my representation of Derrington. Mr. Taylor pled guilty [in the R Street Crew case]. . . . Sentencing is coming up in about three weeks. But, the problem is that in order to bargain for Mr. Derrington, I would have to say to the prosecutor well you know Mr. Derrington cooperated against the R Street Crew, he did this, that, he was an informant, got paid, gave them reliable information. . . . The judge stated that "it may be a false conflict in the timing," apparently meaning that the dual representation perhaps did not present an actual conflict because Taylor had already entered a plea of guilty in the R Street Crew case and was about to be sentenced. However, Wood explained that "it hurts my relationship with Mr. Taylor if he finds out that I represented someone who's cooperating in the R Street [case]." The judge agreed that a continuance was necessary to determine whether a conflict existed, and he addressed Derrington as follows: Mr. Derrington, Mr. Wood will explain to you what we were talking about up here. The long and short of it though is that it may be necessary for him to withdraw as your lawyer in this case and for you to get another lawyer in this case and in another case [in] which he represents you. It's not clear whether it's going to be necessary or not until he talks to you further and talk[s] to others. So, I'm going to bring you back here ... next week... for Mr. Wood to tell me whether he's going to be able to represent you in this case or not. If he is, then we'll go forward as planned and you'll tell me what you want to do about this case and your other one. If he's not able to represent you, ... you'll certainly have an opportunity to retain another lawyer. At the next status hearing on October 29, 1992, Wood reported: I've looked into [the potential conflict,] and I don't believe it's a conflict.... I've explained to the United States Attorney here today and I've talked about what my clientI've made some phone calls. The judge responded: That's good enough for me. . . . [A]s far as I'm concerned that is between you and your client, I see no reason to inquire further. I trust you have explored that with who[m]ever you need to, to protect yourself and Mr. Derrington. At the October 29 hearing, Derrington indicated that he wanted to go to trial rather than to accept a plea offer. During the six months which elapsed prior to the commencement of Derrington's trial, Wood did not discuss with Derrington the latter's option of cooperating with the prosecutors in exchange for more lenient treatment, nor did he approach the prosecutors to request dismissal of the charges, or any other favorable treatment, based on any past or potential cooperation by Derrington. B. The Trial.[3] A jury trial commenced on April 6, 1993. The government introduced evidence, which was apparently credited by the jury, showing that on November 19, 1991, Derrington and Tillery sold a zip-lock bag of crack cocaine to Gary Curtis, an undercover officer. Officer Curtis used twenty dollars in pre-recorded funds to pay for the contraband. After the transaction was complete, Curtis returned to his vehicle, field-tested the cocaine, and broadcast a lookout describing Derrington and Tillery. Within minutes, Derrington was 1129 spotted with some other individuals. Two officers observed him drop to the ground what turned out to be thirty-nine dollars, including ten dollars of the pre-recorded funds, and a white zip-lock bag containing crack cocaine. Derrington was detained, and Officer Curtis, who had returned to the scene, positively identified him as one of the sellers.[4] Detective Charles Culver, who was qualified as a narcotics expert, testified that the cocaine in each of the two zip-lock bags, i.e., the bag dropped by Derrington and the bag purchased by Officer Curtis, had a purity of ninety-three percent, indicating a high probability that the contents of each bag came from the same source. Although Derrington did not testify, Wood called two witnesses on Derrington's behalf. James Bouknight testified that, when the police arrived, he and Derrington had been playing chess on the back hood of Derrington's car for approximately one hour. According to Bouknight, a group of people had gathered to watch the game, and Ricky Tillery was part of that group. He testified that he did not see anyone selling drugs, and that Derrington never left the chess game. Donald Deans testified that he observed Derrington and Bouknight playing chess for about an hour before the police arrived, and that he did not see Derrington sell drugs to anyone. In addition to calling Bouknight and Dean, Wood also sought to establish that the police had falsely accused Derrington of the crime in order to obtain leverage against him and to pressure him into providing information about the September 1991 murder of a man named Michael Green. Wood mentioned this theory in his opening statement to the jury. He also cross-examined Officer Curtis and Detective Truesdale about the Green homicide, but the officers denied any knowledge of it. The jury convicted Derrington[5] of both charges on April 9, 1993.[6] On September 17, 1993, Derrington was sentenced to concurrent prison terms of ten to thirty years. C. The Post-Conviction Proceedings. On April 16, 1993, Derrington wrote a letter to the trial judge in which he stated: Your honor, I'm not a drug dealer. And I feel if I'd been effectively assisted by counsel, [whom] I hired, this would [not] have been proven beyond a reasonable doubt. My attorney Mr. [Wood] never investigated the case. He never called my key witness, or the other witness. . . . My case was inadequately prepared. . . . I would like the court to appoint a lawyer to represent me during my appeal. Upon doing so, I'll need him to contact the [prosecutor's] office on a case, [f]or I'm a key witness to a homicide that happened around my neighborhood. The defendant as charged for the homicide resides in this facility. Your honor, I also found out that Mr. [Wood] has been representing the defendant from the beginning [who is] charged with the homicide. The resident [saw] me and said, "I know you'r[e] not testifying now." This is why I'm [in] protective custody.... My name also came up in the R Street Gang case as the one who told [where] the stash house was. . . . The trial judge treated this letter as a motion for a new trial based on ineffective assistance of counsel, and appointed a new attorney to represent Derrington. On July 8, 1994, Derrington's attorney submitted a supplemental motion for a new trial pursuant to Super. Ct.Crim.R. 33 and D.C.Code § 23-110 (1996), in which it was claimed that Derrington received ineffective assistance of counsel because 1) prior to trial, Wood failed to investigate the case sufficiently;[7] and 2) Wood had 1130 an actual conflict of interest because he simultaneously represented Donald Taylor in the R Street Crew case. A hearing was held on Derrington's claims on December 17, 1994 and January 17-18, 1995. 1. Donald "Pig" Taylor. The Section 23-110 hearing revealed two potential conflicts of interest on Wood's part. First, as noted above, Wood represented Donald "Pig" Taylor in the R Street Crew case at the same time that he represented Derrington. Derrington testified that he believed that he had provided information which led to the arrest of members of the R Street Crew, including Taylor.[8] Wood first learned of the potential conflict in October 1992, when "Derrington's name came up [in a federal proceeding] as an informant on a search warrant ... for the house of somebody who was connected to the R Street Crew." At that point, Taylor had entered a plea of guilty in the federal case and was awaiting sentencing.[9] According to Derrington, Wood told him that he (Wood) would have to withdraw as Derrington's lawyer because he represented one of the members of the R Street Crew. Although Wood did not withdraw, he did notify the status judge of the potential conflict, and a second status hearing was scheduled to give Wood an opportunity to determine whether an actual conflict of interest existed. Wood testified that he called Russell Duncan, who was the prosecutor of R Street, and tried to get a sense from him if Mr. Derrington was the informant [who] was used [as the basis] of a warrant, and then I talked to Mr. Derrington. * * * * * Mr. Derrington told me he wasn't the informant, so that made me think that there wasn't a conflict. Derrington subsequently acknowledged that he had denied being an informant when Wood first asked him about it. However, Derrington testified that he told Wood, at some point prior to his trial, that he (Derrington) had provided information to the police about the R Street Crew. Derrington further testified that, when he learned that Wood also represented Taylor, he immediately asked Wood to refund his money. According to Derrington: Well, [Wood] said, well hold on, let me get a hold of my other client and see if it's all right if, you know, I take the case and [Derrington] said, no that's all right. I just want my money back. Wood testified that Derrington asked for his money back after he was convicted, but acknowledged that "maybe" Derrington first requested a refund upon learning that Wood represented Taylor. Wood explained that he did not return the money because he believed he had done enough work to warrant keeping the fee. Derrington alleged at the Section 23-110 hearing that Wood's representation of Taylor constituted ineffective assistance of counsel "[b]ecause [Detective] Johnson was going to try to use me ... in the R Street Crew case, against [Pig] Taylor and them." He stated that he no longer trusted Wood after he learned of Wood's simultaneous representation of Taylor, but he never brought his dissatisfaction to the attention of any judge until after his conviction at trial. Derrington also admitted that Detective Johnson never actually said that he (Derrington) would be a witness in the R Street Crew case.[10] Wood testified, on the other hand, that 1131 Mr. Derrington had related to me [that] there was some meeting . . . [with] Mr. Duncan, Russell Duncan, and some police officers, and they were pressuring him to testify about R Street.... Wood also acknowledged that Derrington "could have somehow ended up being a witness against Mr. Taylor." According to Wood, "Derrington, if he wanted to, could have testified . . . for the government in the R Street Crew [case]. He could have, sure." When asked whether he had any reason to believe that Derrington would have willingly collaborated with the government, Wood responded in the negative "unless they offered him something [extra]ordinary." Wood testified that his representation of Pig Taylor had no effect on his representation of Derrington in terms of witnesses, defense theories, pretrial investigation, or trial performance.[11] Nevertheless, Wood stated candidly: "I suppose in retrospect, I should have withdrawn from the case. . . . I don't disagree that maybe I shouldn't have been representing Mr. Derrington." When the trial judge asked Wood why he believed he should have withdrawn, Wood explained: Well, basically in retrospect, ... if Mr. Derrington had valuable information about Mr. Taylor or probably not [about] Mr. Taylor specifically but [about] the R Street Crew in general, maybe he should have been told to testify against them all. That's all. That obviously would have been an option for Mr. Derrington. * * * * * [I]f the circumstances had been different, maybe Mr. Derrington should have been persuaded, I'm not saying he would have wanted to, to testify in the R Street case. I didn't explore with Mr. Derrington whether he testified against the R Street Crew, I didn't explore with the United States Attorney's Office whether or not they were willing to offer Mr. Derrington a plea bargain or a better resolution of these cases if he was willing to testify in the R Street Crew [case]. What I'm saying is, in retrospect, maybe that should have been done. 2. Sean Branch. The second potential conflict of interest raised at the hearing involved a man named Sean Branch, who was ultimately convicted of murdering Michael Green. Green was killed in September 1991 in Derrington's neighborhood, the same neighborhood where Derrington allegedly sold cocaine to the undercover officer. Although Derrington did not testify that he in fact witnessed the Green murder, he stated that the police believed that he had information relating to 1132 that murder. Wood also testified that he "didn't have any reason to doubt Mr. Derrington telling [him] that he was a witness" to the Green murder. The potential conflict arose because Wood represented Branch from March to June 1992.[12] Wood also stood in for Grimm, who represented Branch in one or more other criminal cases, on at least one occasion during Wood's representation of Derrington. Based on the testimony at the Section 23-110 hearing, however, it is unclear whether Wood was aware during his representation of Derrington that Branch was a suspect in the Green murder. According to Wood's testimony, "there was no murder trial of Sean Branch for Mike Green's death until much, much later. Sean Branch wasn't charged with the Mike Green murder until, I think, at least a year [after Derrington's trial]." Wood had "trouble figuring out when [he] heard" that Branch was suspected of murdering Green, although he "eventually heard" that Branch was a suspect. Wood testified that Derrington told him he had reason to fear Branch, and that Derrington "may have" told him Branch was an "enforcer" for the R Street Crew. Wood also stated, however, that "a lot of people were afraid of Sean Branch." Wood testified that his simultaneous representation of Branch had no effect on his representation of Derrington in terms of witnesses, defense theories, or trial performance. However, when the prosecutor asked whether the dual representation affected Wood's pretrial investigation of Derrington's case, Wood stated: No. I mean the only thing I can think of, that maybe if Mr. Derrington had wanted to testify against those guys.[[13]] * * * * * He didn't say he wanted to testify at the time. But, you know, I'm not saying I shouldn't have, you know, persuaded him to do that. 3. The Trial Judge's Rulings. After Derrington, Wood, and Detective Johnson testified, the judge heard argument from counsel on Derrington's claims. The judge made no explicit factual findings; however, at the conclusion of the hearing, the judge ruled as follows: I think for the reasons stated by the government in argument and in [its] pleadings and the record herein, Mr. Derrington has failed to meet the second prong of the [test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] with his alleged deficiencies regarding investigation [and] calling of witnesses. . . . There just is no showing that there's a reasonable probability that something would have resulted in a different outcome, something in the record, there's just very little there[.] [Derrington also] has failed to meet the burden of proof set forth in [Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Douglas v. United States, 488 A.2d 121 (D.C.1985)]. So, the motion is denied. Derrington appeals from these rulings. II. LEGAL DISCUSSION A. Standard of Review. "For purposes of appellate review, the trial court's determination whether counsel was ineffective presents a mixed question of law and fact." Byrd v. United States, 614 A.2d 25, 30 (D.C.1992) (citing Curry v. United States, 498 A.2d 534, 540 (D.C.1985)). This court's standard of review is "a deferential one." Bowman v. United States, 652 A.2d 64, 73 (D.C.1994). "We accept the judge's factual findings unless they lack evidentiary support, but we review his [or her] legal conclusions de novo." Byrd, supra, 614 A.2d at 30. This standard of review applies to all ineffective assistance of counsel claims, including those based on an attorney's conflict 1133 of interest. See, e.g., Cuyler, supra, 446 U.S. at 341-42, 100 S.Ct. at 1714-15. B. Legal Principles. "The Sixth Amendment guarantees the accused in a criminal case the right to the effective assistance of counsel for his or her defense." Gibson v. United States, 632 A.2d 1155, 1158 (D.C.1993). "The first essential element of effective assistance of counsel is counsel's ability and willingness to advocate fearlessly and effectively on behalf of his client." Douglas, supra, 488 A.2d at 135 (citations and internal quotation marks omitted). Therefore, whenever "a constitutional right to counsel exists, ... there is a correlative right to representation that is free from conflicts of interest." Singley v. United States, 548 A.2d 780, 783 (D.C.1988) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)). "Encompassed within the Sixth Amendment's guarantee of effective assistance of counsel is the right to representation by counsel whose loyalty is undiluted by conflicts of interest." Fitzgerald v. United States, 530 A.2d 1129, 1133 (D.C.1987) (footnote omitted). The danger of an attorney's conflict of interest is that the "attorney may forego efforts he would ordinarily undertake on behalf of one client, in order that the other client may not thereby be harmed." Id. For example, an attorney may refrain from challenging the admission of evidence prejudicial to one client but favorable to another, or from emphasizing the culpability of one client in order to exculpate another, or from allowing one defendant to testify against another, or from presenting a defense that helps one client but harms another, or from entering a plea agreement for one client conditioned upon his testimony for the prosecution against another client. Id. at 1133-34 (citations omitted). An appellant challenging the constitutional effectiveness of his trial counsel "must demonstrate both deficient performance and prejudice." Byrd, supra, 614 A.2d at 29 (discussing Strickland, supra). A claim of ineffective assistance of counsel based on an attorney's conflict of interest, however, is evaluated pursuant to a less stringent standard than is a conventional Strickland claim. See Chase v. United States, 656 A.2d 1151, 1154 & n. 7 (D.C.1995). Under Cuyler, supra, and its progeny, "[e]ven in cases where a defendant does not object at trial to an attorney's representation, a Sixth Amendment violation warranting reversal will be established if a convicted defendant demonstrates on appeal that `an actual conflict of interest adversely affected his lawyer's performance.'" Douglas, supra, 488 A.2d at 136 (quoting Cuyler, supra, 446 U.S. at 348, 100 S.Ct. at 1718) (footnote omitted); see also Jackson v. United States, 623 A.2d 571, 585 (D.C.), cert. denied, 510 U.S. 1030, 114 S.Ct. 649, 126 L.Ed.2d 607 (1993) (quoting Douglas and Cuyler). As the Supreme Court noted in Cuyler, "unconstitutional multiple representation is never harmless error. . . . Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." 446 U.S. at 349-50, 100 S.Ct. at 1719; Fitzgerald, supra, 530 A.2d at 1138 (quoting Cuyler). On the other hand, "the possibility of conflict is insufficient to impugn a criminal conviction." Cuyler, supra, 446 U.S. at 350, 100 S.Ct. at 1719. To make the requisite showing, the appellant must be able to "point to specific instances in the record to suggest an actual conflict or impairment of [his or her] interests." Fitzgerald, supra, 530 A.2d at 1138 (citation and internal quotation marks omitted); see also Gibson, supra, 632 A.2d at 1159 ("distinguish[ing] actual conflicts from those that are merely speculative or hypothetical"). Furthermore, "[a]n alleged conflict of interest that obstructs the use of a particular strategy or defense is not significant unless the defense is plausible." Fitzgerald, supra, 530 A.2d at 1138 (citation and internal quotation marks omitted). C. The Principles Applied. This is an unusual case because the record reveals remarkable congruence between Wood's foresight and hindsight regarding the problems posed by his apparently 1134 conflicting representations. At the first status hearing in 1992, Wood recognized that an attorney who represented Derrington effectively would be obliged to use any information that Derrington might have regarding criminal activities by the R Street Crew or others as a basis for cooperation with prosecutors and the possible negotiation of more favorable treatment in return. After Wood ostensibly decided that there was no conflict of interest after all, he took none of the steps which he himself had identified to the status judge as necessary and appropriate for an effective defense strategy. More than two years later, at the Section 23-110 hearing, Wood acknowledged that 1. he probably should have discussed with Derrington the latter's option to cooperate with the prosecutors, but he did not do so; 2. he should perhaps have "persuaded" Derrington to testify against the R Street Crew, but he attempted no such persuasion; and 3. he should have explored with the prosecutors potential lenient treatment in exchange for Derrington's cooperation, but he initiated no such exploration. Wood was an experienced criminal defense attorney who obviously knew how such negotiations were carried out in the realpolitik of the criminal justice system. Nevertheless, he did not take the steps which he himself had persuasively described as essential. The record admits only a single inference as to why this occurred, and that is because of the very conflict of interest of which Wood had warned in advance. No other explanation has been suggested, and we know of none. That, no doubt, is why Wood indicated on a number of occasions at the Section 23-110 hearing that he ought not to have been representing Derrington. This record, in our view, therefore reflects a conflict of interest which requires reversal of Derrington's convictions. 1. Actual Conflict of Interest. The first prong of the Cuyler test requires Derrington to establish that Wood had an actual conflict of interest during the time that he served as Derrington's trial attorney. Derrington's task is made substantially easier by the fact that Wood himself identified the conflict at the initial status hearing in October 1992. Wood told the judge that, if Derrington was an informant against the R Street Crew, Wood would "have to withdraw" from the case because Derrington "would need someone to bargain for him . . . [and to] use as a bargaining chip . . . his informant status." Wood stated quite clearly that "it hurts my relationship with Mr. Taylor[[14]] if he finds out that I represented someone who's cooperating in the R Street [case]." Having thus warned the status judge, Wood in fact never discussed with Derrington the possibility of Derrington's cooperating with the prosecutors, nor did Wood approach the prosecutors to request more favorable treatment for his client based on such cooperation. The fact that Wood believed that there was a conflict of interest, and acted as though there was a conflict, constitutes strong, if not conclusive, evidence that an actual conflict existed. This court has recognized that, in determining whether a trial judge properly denied a defense request for a continuance based on a possible conflict of interest, it is "significant" whether counsel "believe[d] the potential for conflict was so real as to oblige him to seek leave to withdraw from the case." Gibson, supra, 632 A.2d at 1159 n. 14; see also Gist v. State, 737 P.2d 336, 344 (Wyo.1987) ("bona fide belief on the part of 1135 the public defender that he was involved in an actual conflict situation" produced "exactly the same [impact] as if the actual conflict had been present"); People v. Johnson, 5 Cal.App.3d 851, 85 Cal.Rptr. 485, 491 (1970) (conflict of interest among co-defendants may arise, inter alia, "when appointed counsel believes a conflict of interest may exist"). At the time of the original status hearing, Wood believed that his representation of Derrington was likely to hurt his relationship with Taylor.[15] At the Section 23-110 hearing more than two years later, Wood stated that he probably should have withdrawn from the case. Here, as in Gibson, we think counsel's own assessment of his situation is significant in the determination whether there was an actual conflict of interest. The government asserts that no conflict of interest existed, or at least that any potential conflict was hypothetical or speculative, rather than actual, because Taylor had already entered a plea of guilty by the time Wood learned that Derrington was an informant in the R Street case. Taylor's plea, however, did not negate the existence of an actual conflict of interest. In the first place, Wood continued, after the plea, to represent Taylor in his appeal in the R Street Crew case.[16] Furthermore, Wood acknowledged at the Section 23-110 hearing that it was possible that Derrington "could have somehow ended up being a witness against Mr. Taylor." Wood explained that "[i]f Mr. Taylor refused to accept the plea bargain, ... Mr. Derrington, if he wanted to, could have testified . . . for the government in the R Street Crew [case]." Moreover, if Taylor's appeal was successful, Derrington's information could have been useful to the prosecution in any further proceedings. In any event, Wood was aware of the timing of Taylor's guilty plea when he first informed the status judge of the potential conflict. The judge stated that "it may be a false conflict in the timing," but Wood responded that Derrington's informant status nevertheless "hurt [his] relationship with Mr. Taylor." If Wood himself was concerned about the effect of the dual representation, notwithstanding Taylor's guilty plea, then any potential conflict was not rendered speculative or hypothetical by that plea. The government also contends that no actual conflict of interest existed because the information which Derrington provided to the government in connection with the R Street Crew case "was used solely to support a search warrant in a portion of the case in which Donald Taylor was not a defendant," and Derrington himself "was never, and was never intended to be, a government witness at either [R Street Crew] trial." Even accepting the government's assertion that Derrington did not provide any information which would have directly implicated Pig Taylor in criminal activityand there was testimony to the contrary[17]the concept of "actual conflict of interest" is not so narrowly defined. When Wood approached the status judge and described the potential conflict, he stated that in order to bargain for Mr. Derrington, I would have to say to the prosecutor well you know Mr. Derrington cooperated against the R Street Crew, he did this, that, he was an informant, got paid, gave them reliable information.... Wood later testified at the Section 23-110 hearing that if Mr. Derrington had valuable information about Mr. Taylor or probably not [about] Mr. Taylor specifically but [about] the R Street Crew in general, maybe he should have been told to testify against them all. (Emphasis added). According to Wood, therefore, the conflict stemmed from Derrington's 1136 having provided information about the R Street Crew generally, and not solely about Pig Taylor. He was worried about how Taylor would feel "if he [found] out that [Wood] represented someone who [had] cooperat[ed] in the R Street [case]." Thus, even if Derrington did not provide information against Pig Taylor specifically, and even if Derrington was not in a position to provide testimony implicating Taylor, then, nevertheless, from Wood's highly relevant perspective, an actual conflict of interest was created. Furthermore, whether the government intended to call Derrington as a prosecution witness in any of the R Street Crew trials is not dispositive of the existence of an actual conflict. Even if Derrington would not have been a witness, that would not have foreclosed an attempt by Wood to "use as a bargaining chip ... [Derrington's] informant status." The government speculates that, if Wood had approached the government with an offer of Derrington's testimony against the R Street Crew in exchange for a beneficial resolution of Derrington's pending cases, the prosecutors would have rejected the offer. Wood recognized both in 1992 and in 1995, however, that Derrington's counsel was obliged to make such an approach, and that Derrington should have been apprised of the possibility that such cooperation might secure more lenient treatment for him. We cannot now know whether the strategy to which Wood referred would have borne fruit; the proof of the pudding is in the eating. The dispositive factor is that the use of Derrington's information and further cooperation was a potential weapon in defense counsel's arsenal. According to our case law, a particular defense or strategy need only be "plausible" to create an actual conflict of interest. Fitzgerald, supra, 530 A.2d at 1138. Derrington has established the requisite plausibility. 2. Adverse Effect. Having concluded that the dual representation in this case created an actual conflict of interest, we turn now to the second prong of the test articulated in Cuyler whether that conflict actually affected Wood's performance. Wood testified on cross-examination that his representation of Taylor had no effect on his selection of witnesses at Derrington's trial, on the defense theories he presented to the jury, on his pretrial investigation, or on his trial performance. See note 11, supra. On the other hand, Wood did not attempt to negotiate more favorable treatment for Derrington, nor did he counsel Derrington regarding the options that might be available to him if he cooperated with the prosecutors. The critical question is why a potential strategy, which was obvious to Wood both in 1992 and in 1995, was never pursued. The sequence of events in this case, and Wood's own testimony, permit only a single inference, namely, that Wood's inaction resulted from his conflicting representations. Indeed, there is no other explanation in this record for Wood's failure to do that which he recognized Derrington's attorney should have done. We therefore conclude that Wood's representation of Taylor adversely affected his performance. When Wood first learned about the conflict of interest, he warned the status judge that Derrington's attorney should be in a position to use Derrington's informant status as a "bargaining chip" in plea negotiations with the government. Wood stated that, if Derrington was the informant, then Wood would have to withdraw, because his representation of Taylor precluded him from so bargaining on Derrington's behalf. After Wood decided not to withdraw, he failed to approach the prosecutors to obtain a beneficial resolution of Derrington's pending cases, and he did not discuss with Derrington the possibility that his cooperation might secure more lenient treatment. Wood admitted at the hearing that he "didn't explore with the United States Attorney's Office whether or not they were willing to offer Mr. Derrington a plea bargain or a better resolution of these cases if he was willing to testify in the R Street Crew [case]." Wood's failure to take on Derrington's behalf the steps which Wood had previously told the status judge needed to be taken vindicates Wood's initial assessment a conflict of interest inhibited him from pursuing what he knew to be the correct strategy. 1137 This conclusion is bolstered by Wood's forthright testimony at the Section 23-110 hearing.[18] He stated that he perhaps should have withdrawn as Derrington's attorney. He testified that, "if the circumstances had been different, maybe Mr. Derrington should have been persuaded ... to testify in the R Street case." Wood admitted that, "in retrospect, maybe" he should have approached the United States Attorney's Office in an effort to obtain more favorable treatment for Derrington. He also acknowledged that "maybe [Derrington] should have been told to testify against them all," and that this "obvious" option should have been, but was not, explored with Derrington. We recognize that many of Wood's comments were made "in retrospect," after Wood had lost the case and Derrington had been convicted. We must also heed the Supreme Court's admonition that "every effort be made to eliminate the distorting effects of hindsight." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065. Here, however, Wood foresaw in October 1992 many of the very problems which he identified "in retrospect" more than two years later. In light of Wood's statements to the status judge and his subsequent testimony at the Section 23-110 hearing, the record provides no rational explanation, other than a conflict of interest, for Wood's failure either to discuss with Derrington his option to cooperate with the prosecutors or to approach the prosecutors on Derrington's behalf. The government argues that the dual representation had no adverse effect on Wood's performance because there was no prospect of a beneficial resolution of Derrington's pending cases. According to the government, the prosecutors were not likely to give Derrington a better plea offer, and Derrington himself wanted to go to trial rather than to plead guilty. However, the government's after-the-fact speculation that Derrington would not have cooperated with the prosecutors, and that, in any event, the prosecutors would not have been willing to offer Derrington a more favorable plea arrangement, is not dispositive. Under Cuyler, Derrington is not required to establish that his attorney's performance actually prejudiced the outcome of his trial. 446 U.S. at 349-50, 100 S.Ct. at 1718-19. He need not even show a "reasonable probability" that he would have been willing to cooperate, or that the prosecutors would have afforded him more lenient treatment in exchange for such cooperation. Compare Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068.[19] Rather, Derrington is required to demonstrate only that the conflict of interest "actually affected the adequacy of his representation," Cuyler, supra, 446 U.S. at 349, 100 S.Ct. at 1719, and that the strategy which Wood failed to pursue was "plausible." Fitzgerald, supra, 530 A.2d at 1138. He has shown both. Furthermore, Derrington's expressed unwillingness to plead guiltyunder the circumstances of this caseis not dispositive. Wood himself admitted that maybe [Mr. Derrington] should have been told to testify against [the R Street Crew]. . . . That obviously would have been an option for Mr. Derrington. . . . [I]f the circumstances had been different, maybe Mr. Derrington should have been persuaded, I'm not saying he would have wanted to, to testify in the R Street case. I didn't explore [that] with Mr. Derrington. . . . What I'm saying is that, in retrospect, maybe that should have been done. 1138 (Emphasis added). Derrington was entitled to an attorney who would dispense advice according to the client's best interests, even if Derrington, without the benefit of such advice, previously had been opposed to the particular strategy which, in Wood's opinion, offered the best chance of success. See Gee v. State, 93 Md.App. 240, 611 A.2d 1081, 1090 (1992).[20] If it was in Derrington's best interest to approach the prosecutors and to offer Derrington's testimony against the R Street Crew in exchange for more favorable treatment, then that is what Wood should have advised. Moreover, even if Derrington had refused to plead guilty in the instant case under any circumstances, the strategy of attempting to enter into plea negotiations with the government may nevertheless have been viable. Derrington had another pending case, and if he possessed valuable information about the R Street Crew, Wood could have pursued a disposition which did not require Derrington to plead guilty to the present charges.[21] The government also contends that Wood's representation of Taylor did not adversely affect Wood's performance because Derrington denied being an informant in the R Street Crew case. We reject this contention for several reasons. First, Derrington testified that, although he initially denied being an informant, he acknowledged the contrary to Wood at some point prior to his trial. Wood did not deny that Derrington made this admission. Second, Wood's contact with prosecutor Duncan between the two status hearings apparently revealed to Wood that, in the words of Duncan's affidavit, Derrington was the "source" for a search warrant for the home of one of the R Street defendants. Wood's conversation with Duncan therefore conclusively refuted Derrington's assertion that he was not an informant. Finally, one predictable consequence of Wood's representation of Taylor, and Derrington's knowledge of that representation, would be to inhibit Derrington from being candid with Wood, especially regarding Derrington's activities as an informant, for fear of reprisal from the R Street Crew. Wood warned the status judge that Derrington would need his attorney to "use as a bargaining chip" Derrington's past and potential cooperation with the police. That strategy was not pursued, and Wood later testified that it should have been. Wood thus "fore[went] efforts he would ordinarily [have] undertake[n] on behalf of one client, in order that the other client [would] not thereby be harmed." Fitzgerald, supra, 530 A.2d at 1133. We therefore hold that Wood's actual conflict of interest adversely affected his performance and deprived Derrington of the effective assistance of counsel which is guaranteed to him by the Sixth Amendment. 3. Waiver. Our dissenting colleague is troubled by Derrington's own failure to ask the trial judge for a new attorney. That failure, however, is not fatal to Derrington's conflict of interest claim. On the contrary, the Cuyler test applies specifically to cases where the defendant "raised no objection at trial." Cuyler, supra, 446 U.S. at 348, 100 S.Ct. at 1718. More fundamentally, to affirm because Derrington did not personally object in the trial court would effectively penalize him for 1139 not having unconflicted counsel. When Derrington did obtain an attorney without a conflict of interest, his objection to Wood's representation of him was promptly articulated. If conflict-free counsel had been available to Derrington in the trial court, then his present claim might very well have been asserted then. Moreover, we have stated that a defendant cannot be said to have waived his right to conflict-free counsel unless the trial court has conducted an inquiry sufficient to establish that the defendant is aware of the right to conflict-free representation; understands the nature of the risks and the potential adverse effects of foregoing that right; and knows that, if convicted, he or she will not be able to complain on appeal that the defense at trial was compromised by the conflict. . . . Moreover, the informed and voluntary character of the waiver should be manifested by clear, unequivocal, and unambiguous language. Douglas, supra, 488 A.2d at 138-39 (citations and internal quotation marks omitted). In this case, the status judge conducted no such inquiry. He merely informed Derrington at the first status hearing that, if Wood was unable to represent him, Derrington would be given an opportunity to retain another attorney. At the follow-up hearing, the judge accepted Wood's representation that no conflict of interest existed, stating: "That's good enough for me.... [A]s far as I'm concerned that is between you and your client, I see no reason to inquire further." Derrington later testified at the Section 23-110 hearing that Wood told him that the status judge would not allow him any additional time to obtain new counsel. Derrington also stated that he acquiesced in Wood's continued representation of him because Wood refused to refund his money, and because he did not want to proceed to trial with appointed counsel. Under these circumstances, Derrington cannot be said to have voluntarily and knowingly waived his right to conflict-free counsel. III. CONCLUSION For the foregoing reasons, Derrington's convictions are reversed, and the case is remanded for a new trial. So ordered.[22] PRYOR, Senior Judge, dissenting: The essence of appellant's challenge is that his conviction of narcotics offenses should be vacated because his trial attorney had a conflict of interest while representing him. The conflict, it is urged, stemmed from the representation of another person in a different prosecution which hampered counsel's advocacy in this case. Although the contention has some appeal, I am not persuaded, partly because of appellant's own inaction. As the majority opinion explains more fully, appellant was charged with narcotics offenses in the Superior Court. At a status hearing before trial, appellant's trial counsel, on his own initiative, raised the question of a conflict of interest. In the District Court, he had represented a person charged with an unrelated offense, reputed to be a member of the R Street Crew. During the course of hearings in the District Court involving a search warrant related to the R Street Crew, it was represented that appellant had served as an informant for the government. The trial judge explained the nature of the concern to appellant and pointed out that he was delaying the status call to allow consideration of whether there should be a change of attorneys. Appellant, aware of the problem, raised no objection at that time. At a second status hearing, counsel, having investigated the matter, stated that he thought there was no conflict. Appellant again expressed no concern. Later a jury found appellant guilty of the offenses. Afterwards, appellant wrote to the trial judge alleging, for the first time, that his attorney had a conflict of interest. The denial of collateral relief on this ground is the primary focus of this appeal. It is true, as has been stated, that we are now faced with the very question which counsel 1140 raised at that early status hearing. Indeed, appellant's trial counsel was straight-forward and consistent in his analysis of his responsibilities regarding plea negotiations and the trial itself. What has changed, of course, is appellant's earlier inaction and his assertions after the jury's verdict. At the 23-110 hearing, it was offered that the plea to the other offense by the other defendant in District Court was concluded before counsel began representing appellant; that appellant was not an informant against the other defendant; and that the search warrant did not pertain to the defendant who pleaded guilty. Appellant's trial counsel was examined extensively regarding the performance of his duties in the conduct of appellant's defense in the trial court. It was shown that appellant had consistently demanded a trial. Counsel stated that, given the post-conviction allegations, he possibly should have attempted "to persuade" appellant to consider alternatives other than trial. Lastly, appellant testified, among other things, that he did not trust his attorney. The trial judge, having reviewed all of the evidence, and relying primarily on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and related decisions, concluded there was no actual conflict of interests and no ineffective assistance of counsel. The Cuyler decision reinforces the basic tenet that an accused is entitled to an advocate who is dedicated solely to the interests of the accused. In questions of this kind, there is some degree of restraint imposed upon trial judges and lawyers in recognition of the secrecy and confidentiality which flows between client and counsel. Thus, judges must be alert to problems, but yet can not reasonably inquire broadly and aggressively at every turn. Cuyler, 446 U.S. at 346-47, 100 S.Ct. at 1717-18. Ultimately, the judge is looking for an actual conflict of interest which will substantially affect the representation of the client. Decisions in this subject area contemplate that an accused must give some signal to the court, if facts known to the accused create a possible or likely conflict in the representation. It is certain that the lawyers involved have a similar obligation. Again, the judicial response in this area must take into account the relationship between attorney and client as well as the circumstances which become known to the court, either as volunteered or in response to inquiry. In appellate review of issues of this kind, we are cautioned "... to eliminate the distorting effects of hindsight . . .," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, and that is certainly an important factor in this instance. It is inescapable that the questions which were the focus of a series of trial court hearings could readily have been resolved by appellant himself. He knew from the beginning the nature of the problem. Indeed, he was advised before trial that he could obtain new counsel. The attorneys for both sides, and the judge, were in accord. Belatedly, after conviction, this claim was made. Thus, in my view, it must be said that appellant's attorney, counsel for the government, and the trial judge, reacted appropriately to information known to them at the time. Quite simply, appellant is the only person who knew whether, under the circumstances, he wanted a different attorney. He chose to remain silent until after the trial. On balance, I conclude there was no error and would affirm the denial of request for a new trial. NOTES [1] Wood also represented Derrington in another criminal case, which Wood described as "[a] drug case, [the] same type of case." [2] The text of Wood's motion to withdraw, which was never filed, is quoted in Derrington's memorandum in support of his supplemental motion for a new trial. Wood is quoted as having said: "Counsel submits that this is a glaring conflict of interest." [3] The trial transcripts are not in the record. The following facts are therefore taken primarily from the parties' briefs. [4] Tillery was separately apprehended and identified. [5] The charges against Tillery were dismissed as a result of his guilty plea in an unrelated federal case. [6] When the jury returned its verdict, Derrington attempted to flee from the courtroom, but he was promptly apprehended. [7] In particular, Derrington asserted that Wood failed to explore the proposed testimony of several witnesses, including a man named Ricky Monroe. According to Derrington's proffer, Monroe told a defense investigator that "it was he and not [Derrington] who sold drugs to an unknown individual in the vicinity of the charged offense." Monroe also sent the trial judge a notarized letter in which he claimed that Derrington was innocent, and that he (Monroe) was the individual with Tillery who sold drugs to the undercover officer. [8] This alleged nexus between the information provided by Derrington and the prosecution of Taylor was contradicted by prosecutor Russell Duncan, who stated in an affidavit that "Anthony Derrington never provided any information affecting the prosecution of Donald Taylor." [9] Taylor entered his plea on September 4, 1992. He was sentenced on November 23, 1992. [10] This statement was corroborated in part by an affidavit submitted by prosecutor Russell Duncan, in which Duncan stated: 6. Anthony Derrington was never a government witness at either "R Street Crew" trial, never agreed to cooperate with the government in these cases or this indictment, and always denied his involvement as an informant. I did not believe him. He was not called as a witness by any defendant. 7. To the best of my recollection, Anthony Derrington never provided any information affecting the prosecution of Donald Taylor. Mr. Taylor was indicted principally as the result of undercover work by the Metropolitan Police Department and pled guilty before the second R Street trial. I did not intend to call Mr. Derrington as a witness at Mr. Taylor's planned trial. [11] During Wood's cross-examination, the following exchange took place: Q Now, Mr. Wood, to the best of your recollection, is there anything that you did or did not do in representing Mr. Derrington that you would have done or you felt you should have done because you represented Donald Taylor. . .? A Well, I don't think it's so much in the investigation. I mean I suppose in retrospect, I should have withdrawn from the case . . . [and] not get involved in this. * * * * * * Q Were there any witnesses that you would have called at Mr. Derrington's [trial] that you didn't call because you also represented Donald Taylor? A If you're confining it to witnesses, I don't think there [were] any witnesses I didn't call because of Donald Taylor. Q Was there any theory of the defense at Mr. Derrington's trial that you didn't present because you were representing Donald Taylor. . .? A . . . [N]ot probably that occurred to me at the time. Q Was there any pretrial investigation that you didn't undertake for Mr. Derrington that you would have undertaken but for the fact that you had also represented Donald Taylor? * * * * * * A . . . [T]he investigation wasn't curtailed because of Mr. Taylor. Q Was any of your trial performance curtailed because of Mr. Taylor? A No, but I mean, you know, I don't disagree that maybe I shouldn't have been representing Mr. Derrington. (Emphasis added). [12] According to Wood, Branch was charged with assault with a deadly weapon in an unrelated incident. That case was ultimately dismissed. [13] Wood may perhaps have been referring to members of the R Street Crew, and not Branch specifically, when he used the expression "those guys." [14] As to Sean Branch, the prosecutor asked Wood during the Section 23-110 hearing whether his representation of Branch affected his pretrial investigation of Derrington's case. Wood responded: "[M]aybe if Mr. Derrington had wanted to testify against those guys.... I'm not saying I shouldn't have, you know, persuaded him to do that." On the other hand, the testimony at the hearing did not establish that Wood was aware during his representation of Derrington that Branch was involved in the murder of Michael Green. See United States v. Hopkins, 43 F.3d 1116, 1119 (6th Cir.) ("A conflict is hypothetical where ... the attorney does not in fact know of the conflict from the dual representation."), cert. denied, ___ U.S. ___, 115 S.Ct. 2017, 131 L.Ed.2d 1015 (1995). Because the record is unclear as to whether a conflict of interest was created by Wood's representation of Branch, we focus our discussion on Wood's representation of Taylor and Taylor's connection with the R Street Crew. [15] Grimm apparently shared Wood's belief that Derrington's informant status was problematic. He told the status judge that "it may be a conflict that never comes to a head, but it appears unseemly." [16] The record does not disclose the nature of Taylor's appeal, but that appeal remained pending until it was dismissed in November 1993, seven months after Derrington's trial. [17] Derrington testified that he believed that the information which he had provided led to the arrest of members of the R Street Crew, including Pig Taylor. Wood also acknowledged the possibility that Derrington "could have somehow ended up being a witness against Mr. Taylor." [18] We note that, in the best traditions of the bar, Wood testified with great candor at the Section 23-110 hearing, obviously attempting to promote justice notwithstanding any potential embarrassment to himself. His forthrightness in a difficult situation is to be commended. [19] Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), is not to the contrary. In Burger, the Court concluded that the asserted conflict of interest did not harm the attorney's advocacy, and observed that "[t]he notion that the prosecutor would have been receptive to a plea bargain is completely unsupported in the record." Id. at 785, 107 S.Ct. at 3121. In Burger, however, the district court had found that the attorney "constantly attempted to plea bargain with the prosecutor, but was rebuffed." Id. at 786, 107 S.Ct. at 3121 (internal quotation marks omitted). There was no question in Burger as there is in this casewhether the attorney's failure to engage in plea negotiations in the first place was the result of his conflict of interest. [20] In Gee, the court stated: When still debating within himself as to whether to make such a bargain, [the appellant] was entitled to the best advice and wise experience of single-minded counsel. Notwithstanding [the appellant's] tentative decision to stand by his co-defendant, a lawyer concerned only with [the appellant's] temporal welfare would have read him the riot act, expatiated at length upon the folly of misguided loyalty, and persuaded him to take the "deal" and run. [The appellant's] lawyer, because of his mutual allegiance to [the co-defendant], however, was obviously paralyzed from giving such tactically sound advice. It was in the very failure to receive such advice that [the appellant] was deprived of effective assistance. Id. Likewise, when Derrington was "still debating within himself" whether to go to trial, he was "entitled to the best advice and wise experience of single-minded counsel." [21] Derrington suggests, for example, that "Mr. Wood could have proposed that the government dismiss this case in exchange for a guilty plea in [Derrington's] other pending case or a reduced charge in that pending case, or [dismiss] both cases in exchange for ... cooperation in the R Street case." [22] We do not reach Derrington's Strickland claims. On retrial, however, the testimony of Ricky Monroe, the man who wrote to the judge that he committed the crime and that Derrington did not, may well be available to the defense.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266133/	240 P.3d 1033 (2010) J.D. CONSTRUCTION, INC., a Nevada Corporation; Jerry Daugherty, an Individual; and Carrie Daugherty, an Individual, Appellants, v. IBEX INTERNATIONAL GROUP, LLC, a Nevada Limited Liability Company, Respondent. J.D. Construction, Inc., a Nevada Corporation; Jerry Daugherty, an Individual; and Carrie Daugherty, an Individual, Appellants, v. Ibex International Group, LLC, a Nevada Limited Liability Company, Respondent. Nos. 52543, 52961. Supreme Court of Nevada. October 7, 2010. 1035 Pisanelli Bice, PLLC, and Todd L. Bice, Las Vegas; Peel Brimley LLP and Michael W. Brimley, Robert E. Werbicky, and Gary B. Domina, Henderson, for Appellants. Glaser, Weil, Fink, Jacobs, Howard & Shapiro, LLP, and Adam Smith and G. Lance Coburn, Las Vegas, for Respondent. Before HARDESTY, DOUGLAS and PICKERING, JJ. OPINION By the Court, DOUGLAS, J.: Appellants J.D. Construction, Inc., Jerry Daugherty, and Carrie Daugherty (collectively, J.D. Construction) placed a mechanic's lien on property owned by respondent IBEX International Group, LLC. IBEX sought to expunge the lien, pursuant to NRS 108.2275, arguing that it was frivolous and/or excessive. The district court concluded that the lien was excessive and expunged the lien. In this opinion, we address the proper scope and nature of NRS 108.2275 proceedings where a property owner seeks to expunge a frivolous or excessive lien. We conclude that when a property owner seeks to remove a lien by arguing it is frivolous or excessive, the district court must determine the material facts in order to reach a conclusion 1036 regarding whether a lien is frivolous or excessive. We conclude that in making these factual determinations, the district court is not required to hold a full evidentiary hearing, but instead may base its decision on affidavits and documentary evidence submitted by the parties. We also conclude that this procedure meets due process requirements. However, pursuant to the time frame mandated by NRS 108.2275(3), if the district court determines that a hearing is necessary, the hearing must be held within 15 to 30 days of the court's order for a hearing. And while any hearing must be initiated within that time frame, the statute does not require the district court to resolve the matter within that time frame. Finally, we conclude that, in evaluating whether a lien is excessive, the district court must use a preponderance-of-the-evidence standard, rather than the reasonable-cause standard used for frivolous liens, and the burden is on the lien claimant to prove the lien and the amount claimed. In this case, J.D. Construction had the burden to show the adequacy of its lien, and it failed to do so. Accordingly, we affirm the order of the district court because it reached the right result even though for the wrong reason.[1] FACTS AND PROCEDURAL HISTORY The underlying dispute arises from a contract between IBEX and J.D. Construction for J.D. Construction to build a medical facility for $5,000,000. The contract stated that J.D. Construction was to be paid in installments based upon the percentage completed and required that any changes to the contract amount be priced as a change order. The parties agree that the contract amount was later increased to at least $5,438,761.88. However, they submitted conflicting affidavits in district court regarding whether there were any additional amendments to the contract. J.D. Construction stopped working on the project on January 25, 2008.[2] A few days prior to that, on January 21, 2008, Valley Construction Services, Inc. (VCS), the company designated by the parties to determine the percentage of the project that was complete, sent its inspector, Gary Parrish, to calculate the percentage of completion. At that time, VCS adjusted its calculation of the percentage completed to 23.09 percent from the 39.55 percent it had previously calculated. In his deposition, Parrish stated that the percentage completed dropped because prior to the January inspection he conducted his inspections based on a budget document that indicated a three-story structure. When he received the plans and realized that the project was actually a four-story structure, he had to adjust his estimates of completion accordingly. The parties dispute the percentage of work completed when J.D. Construction stopped work. J.D. Construction recorded a notice of lien on the property in the amount of $1,450,497.90.[3] IBEX filed a complaint, alleging breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, intentional misrepresentation/fraud, and negligent misrepresentation, and requested a court order quieting title to the property and expunging the lien. IBEX then filed a motion to expunge or reduce J.D. Construction's allegedly frivolous and/or excessive lien pursuant to NRS 108.2275. IBEX alleged that the amount of the contract between IBEX and J.D. Construction 1037 was $5,438,761.88 and that because the project was only 23.09 percent complete, J.D. Construction was actually overpaid[4] and the lien was excessive and/or frivolous. J.D. Construction responded with affidavits and documents supporting the amount of its lien.[5] At the July 2008 hearing on the motion to expunge, the district court, after oral arguments, ordered the parties to conduct discovery on the issue of percentage of completion. The district court ordered the parties to depose IBEX's representative at the project and the person at VCS most knowledgeable regarding the percentage completed. J.D. Construction was only able to depose VCS's field inspector, Parrish, regarding the percentage completed.[6] J.D. Construction submitted a supplemental brief, which included an expert report estimating the project was 52 to 55 percent complete as of January 21, 2008. At the continued hearing in September 2008, the district court granted the motion to expunge the lien, finding "the lien is not frivolous, but is excessive."[7] The district court found the amount of the contract was $5,438,751, and stated: "Valley Construction Services, Inc. has provided the most credible estimate of percentage completion, and based upon Valley Construction Services, Inc.'s calculation the Project was 23.09% complete upon J.D. Construction, Inc.'s departure from the Project." J.D. Construction now appeals. DISCUSSION In this appeal, we determine the proper scope and nature of NRS 108.2275 proceedings where a property owner seeks to expunge a frivolous or excessive lien. We first address the proper scope of an NRS 108.2275 hearing. Because the determination of whether a lien is frivolous or excessive requires a determination of the material facts of the case, we conclude that factual determinations are appropriate in an NRS 108.2275 hearing. Second, we conclude that an evidentiary hearing is not required in order for the district court to make factual determinations and this procedure satisfies due process because NRS 108.2275(6) allows both parties a sufficient opportunity to present their case. In reaching this conclusion, we consider the nature and timing of an NRS 108.2275 hearing. We recognize that the use of "if in the statute implies that a hearing will not always be necessary and note that a hearing is not necessarily required for the district court to make a ruling on a motion to expunge a frivolous or excessive lien. Instead, a hearing is necessary only if there is a possibility that the lien will be expunged; the district court can deny a motion based on the supporting documents alone but must have a hearing if there is an issue of fact that needs to be addressed. Further, we note that if the district court issues an order for a hearing, it must strictly follow the timeline for scheduling a hearing set forth in NRS 108.2275. That notwithstanding, we conclude that the statute does not require the matter be resolved within that time frame. Third, we address the standard of proof for evaluating whether a lien is excessive and for determining the sufficiency of the evidence in cases involving motions to expunge mechanics' liens. We determine that the standard for evaluating whether a lien is excessive, pursuant to NRS 108.2275, requires 1038 the lienholder to prove its validity by a preponderance of the evidence; the district court properly applied this standard. Scope of an NRS 108.2275 hearing NRS 108.2275(1) permits a party in interest in a property subject to a lien to move to dismiss the lien if it is frivolous or excessive. NRS 108.2275(2)(b) specifically requires that the party seeking to expunge a lien must submit affidavits and documentary evidence in support of its motion. The statute provides that if the court orders a hearing, the applicant must serve notice of the application and order of the court on the lien claimant within three days of the court's order. NRS 108.2275(3). Any hearing must be held within 15 to 30 days of the court's order for a hearing. Id. After a hearing, the district court shall make one of three determinations: (1) that the notice of lien is frivolous and made without reasonable cause, (2) that the lien amount is excessive, or (3) that the notice of lien is not frivolous or excessive and made with reasonable cause. NRS 108.2275(6)(a)-(c); Crestline Inv. Group v. Lewis, 119 Nev. 365, 371, 75 P.3d 363, 367 (2003). Legislative history The legislative history of NRS 108.2275 provides further insight with regard to the legislative intent concerning the scope of a hearing pursuant to that statute. NRS 108.2275 was originally introduced as Senate Bill 434 (S.B.434). Proponents of S.B. 434 explained that the bill was an attempt "to revamp Nevada Revised Statutes (NRS) chapter 108 in order to bring certainty into the statute and to avoid the need for litigation in every instance where liens are placed against property." Hearing on S.B. 434 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 23, 1995). Charles Cook, legal staff for the Nevada Land Title Association, explained that "S.B. 434 addresses changes to the mechanic's lien statutes only to bring Nevada in line with sister states in terms of competitiveness and in continuity of economic investments." Hearing on S.B. 434 Before the Assembly Comm. on Judiciary, 68th Leg. (Nev., June 26, 1995). The minutes of these committee hearings state that in enacting NRS 108.2275, the Legislature contemplated the gathering of witnesses and evidence and increased the number of days before the district court must conduct a hearing to allow a defendant sufficient time to respond. During one of the hearings, a citizen voiced concern that the section regarding the hearing on frivolous liens removed a "defendant's due process rights, because it does not allow sufficient time to answer or gather witnesses or evidence." Hearing on S.B. 434 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 25, 1995). Senator Adler agreed and the committee discussed how the speedy hearing requirement would be affected by the reality of the court calendar. Id. The committee agreed to extend the time frame for the hearing from between 6 and 15 days to between 10 and 20 days. Id. The minutes also note that "[l]ooking to the level of proof required to show the claim is frivolous, Senator Adler pointed out the burden is such that the plaintiff must show there is absolutely no basis for a claim. If there is any showing of good faith, the court will not dismiss the lien." Id. In formulating the proposed changes to Nevada's mechanic's lien law, "proponents looked at statutes from other states in the region," specifically "Arizona, California, Oregon, and Washington." Hearing on S.B. 434 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 23, 1995). Competing views regarding the scope of a mechanic's lien hearing There are two different views regarding the scope of a hearing to expunge a mechanic's lien. California allows determination of the material facts of the case at a summary proceeding and does not require an evidentiary hearing. See Jasper Constr., Inc. v. University Casework Systems, Inc., 39 Cal. App.3d 582, 114 Cal.Rptr. 143, 144 (1974). The California Supreme Court determined that due process is satisfied by a speedy hearing on the probable validity of the lien. Connolly Dev., Inc. v. Superior Court, 17 Cal.3d 803, 132 Cal.Rptr. 477, 553 P.2d 637, 641 (1976). 1039 In contrast, Washington state courts have interpreted their statute to limit determinations of factual disputes in a hearing to expunge a frivolous or excessive lien. Washington courts have concluded that its statute allows for resolutions of factual disputes but such resolution is "confined to the limited group of cases where the lien claim is clearly merit less." S.D. Deacon Corp. v. Gaston, 150 Wash.App. 87, 206 P.3d 689, 691 (2009). Washington's summary proceeding is similar to a trial by affidavit but is not a substitute for a trial on the merits. W.R.P. Lake Union v. Exterior Services, 85 Wash.App. 744, 934 P.2d 722 (1997). It is unclear what the exact limits of Washington's summary proceeding are for factual disputes.[8] J.D. Construction argues that the district court exceeded its statutory authority by resolving highly disputed factual issues that should have been resolved at trial. J.D. Construction asserts that an NRS 108.2275 hearing is an improper vehicle to resolve disputed material issues of fact concerning the amount of work performed or the payment due or owing. Rather, J.D. Construction argues that a hearing held pursuant to NRS 108.2275 should be limited to the determination of facts that can be determined by affidavit. J.D. Construction urges this court to adopt the approach taken by Washington because Washington's statute for removal of frivolous or excessive mechanics' liens, Washington Revised Code section 60.04.081 (West 2009), is comparable to NRS 108.2275. Washington has interpreted its statute to limit a district court's ability to make factual determinations in a hearing on a motion to expunge, and J.D. Construction argues that NRS 108.2275 should be interpreted in the same manner. IBEX instead argues that Nevada has not adopted Washington caselaw, and urges this court to adopt California's approach, which allows factual determinations to be made at summary proceedings.[9] IBEX argues that the summary procedure in NRS 108.2275 provides a speedy hearing on the probable validity of the lien, just like California. IBEX argues that if the district court is to determine whether the lien was excessive, it must make findings of fact based on the affidavits, documents, and depositions submitted to the district court. We agree with IBEX and conclude that the plain language of NRS 108.2275 requires the district court to consider the material facts of the case in order to make a determination regarding whether the lien is excessive or frivolous. "Lien claims are statutory" and a dispute over the interpretation of a lien statute is one of statutory construction. Crestline, 119 Nev. at 368, 75 P.3d at 365. As statutory construction is a question of law, it is subject to de novo review. California Commercial v. Amedeo Vegas I, 119 Nev. 143, 145, 67 P.3d 328, 330 (2003). When this court engages in a de novo review of an issue of statutory construction, "[t]he `court first looks to the plain language of the statute.'" Crestline, 119 Nev. at 368, 75 P.3d at 365 (quoting A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002)). "Where the language of a statute is plain and unambiguous and its meaning clear 1040 and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself." Madera v. SIIS, 114 Nev. 253, 257, 956 P.2d 117, 120 (1998) (internal quotations omitted). A statute's language is ambiguous when it is capable of more than one reasonable interpretation. Leven v. Frey, 123 Nev. 399, 404, 168 P.3d 712, 716 (2007). We conclude that NRS 108.2275 is unambiguous. The plain language of NRS 108.2275 allows a property owner to challenge a lien as frivolous or excessive and requires the district court to make a finding of whether the lien is frivolous, excessive, or neither. In order for the district court to make a finding that the lien is excessive or frivolous, the district court must consider the material facts of the case. We are unpersuaded that this language can be read any other way. The plain language of the statute requires the district court to determine the material facts in order to make a ruling as to whether the lien is frivolous or excessive. Nature and timing of an NRS 108.2275 hearing In deciding the motion to expunge the lien, the district court held two hearings, ordered two depositions, and received affidavits. Neither party requested a full evidentiary hearing. J.D. Construction now argues that it was a violation of due process for the district court to rule on an NRS 108.2275 motion based solely upon affidavits and that the district court needed to hold an evidentiary hearing and observe live testimony. IBEX argues a mechanic's lien does not create a property right, but is instead a taking without due process that is only permissible because of the expedited hearing available pursuant to NRS 108.2275. IBEX also argues that J.D. Construction was afforded due process; there were two hearings with the opportunity for both sides to present their case through motions and affidavits, as well as the opportunity to conduct discovery in between the two hearings. We agree. NRS 108.2275(2) requires a party to set forth its legal and factual grounds for its motion to expunge, supported by an affidavit and documentary evidence. NRCP 43(c) provides that "[w]hen a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." Moreover, NRCP 78 provides that "[t]o expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition." We conclude that NRS 108.2275 and the NRCP do not require an evidentiary hearing; instead, as discussed further below, a decision based on affidavits and deposition testimony can satisfy due process. Due process considerations A mechanic's lien is a "taking" in that the property owner is deprived of a significant property interest, which entitles the property owner to federal and state due process. Connolly Develop., Inc. v. Sp. Ct. of Merced Cty., 17 Cal.3d 803, 132 Cal.Rptr. 477, 553 P.2d 637, 644 (1976). Due process is satisfied by giving both parties "a meaningful opportunity to present their case." Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In determining whether a procedure meets the due process requirements of notice and an opportunity to be heard, as set forth in Mathews, we note that "due process is flexible and calls for such procedural protections as the particular situation demands." Burleigh v. State Bar of Nevada, 98 Nev. 140, 145, 643 P.2d 1201, 1204 (1982) (internal quotations omitted). In reaching a determination regarding due process, the court considers, [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. The California Supreme Court determined that due process is satisfied by a 1041 speedy hearing on the probable validity of the lien and that "the safeguards provided by California law to protect property owners against unjustified liens are sufficient to comply with due process requirements." Connolly, 132 Cal.Rptr. 477, 553 P.2d at 654. In so doing, the court opined that while "the taking of property occasioned by a stop notice or mechanics' lien is not de minimis, it is nonetheless of relatively minor effect." Connolly, 132 Cal.Rptr. 477, 553 P.2d at 652. "The mechanics' lien ... does not deprive the owner of the interim possession or use of the liened property...." Id. However, "the laborer and materialman have an interest in the specific property subject to the lien since their work and materials have enhanced the value of that property." Connolly, 132 Cal.Rptr. 477, 553 P.2d at 653. We are persuaded by the California Supreme Court's reasoning. Nevada has previously agreed with this reasoning and held that "[t]he object of the lien statutes is to secure payment to those who perform labor or furnish material to improve the property of the owner." Schofield v. Copeland Lumber, 101 Nev. 83, 85, 692 P.2d 519, 520 (1985). In considering the procedure to expunge a lien, both the property owner and the lien claimant's rights must be addressed. While a mechanic's lien is a "taking," the protections provided by NRS 108.2275 are sufficient to comply with due process requirements. The district court does not violate due process when it decides factual issues on the basis of affidavits and supporting documents. As the United States Supreme Court recognized in Mathews, due process is not a fixed concept susceptible to rigid definition. 424 U.S. at 334, 96 S.Ct. 893. Instead, "`[d]ue process is flexible and calls for such procedural protections as the particular situation demands.'" Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Due process is satisfied where interested parties are given an "opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 333, 96 S.Ct. 893 (internal quotation omitted). Applying the factors enumerated in Mathews, we recognize that the owner has a significant interest in having his or her property be free of encumbrances. We also recognize that the state has a significant interest in securing payments for those who improve the owner's property. Schofield, 101 Nev. at 85, 692 P.2d at 520. The lien claimant also has an equally strong interest in ensuring that there are adequate assets available to collect from if it obtains a favorable result. However, there is little risk of erroneous deprivation. NRS 108.2275(7) expressly provides that a determination as to the validity of the mechanic's lien does not affect the other rights and remedies available to the parties. Therefore, we conclude that a determination on expunging a mechanic's lien does not provide any law-of-the-case or preclusion effect. While there are strong competing public and private interests, an evidentiary hearing is not mandatory in these situations because of the low risk of an erroneous deprivation. Furthermore, the probative value of additional procedures will be very limited this early in the litigation. Under the procedure described here, both the property owner and the lien claimant are provided a meaningful opportunity to present their case and their right to due process is satisfied. In this situation, due process was satisfied, as both parties were afforded sufficient opportunity to present their case through affidavits and supporting documents.[10] J.D. Construction was not denied due process in the proceedings on the motion to expunge its lien. We also note that in arguing that the district court should not consider the material facts of the case, J.D. Construction argued that the time frame mandated by the statute would not allow for a full consideration of the facts necessary to make a ruling. However, to satisfy the mandates of due process and the requirements of NRS 108.2275, any hearing 1042 held by the district court must be held within 15 to 30 days of the court's order for a hearing. While any hearing must be initiated within that time frame, the statute does not require the district court to resolve the matter within that time frame. This conclusion comports with the interests of justice as the district court should be permitted the latitude to decide to order additional depositions or another hearing with live testimony. While the district court does not have to resolve the matter within the time frame, we note that the matter should be addressed expeditiously. Standard of proof and sufficiency of evidence In finding J.D. Construction's lien excessive and expunging it pursuant to NRS 108.2275, the district court applied a preponderance-of-the-evidence standard. J.D. Construction asserts that NRS 108.2275 only requires it to show a good faith basis for its lien amount and therefore the district court applied the wrong standard of proof in making its factual determinations. IBEX contends that because NRS 108.2275 requires a determination of the amount of a lien to determine if it is excessive or frivolous, the district court properly followed the enumerated procedures, and that J.D. Construction's lien was properly expunged. Determination of the correct standard of proof to be used by a tribunal is a legal question, subject to de novo review. Matter of Halverson, 123 Nev. 493, 509, 169 P.3d 1161, 1172 (2007). If the statutory language does not address the issue, then this court looks to reason and public policy to determine the Legislature's intent. Crestline, 119 Nev. at 368, 75 P.3d at 365. NRS 108.2275(6) provides for the summary discharge of a mechanic's lien: If, after a hearing on the matter, the court determines that: (a) The notice of lien is frivolous and was made without reasonable cause, the court shall make an order releasing the lien and awarding costs and reasonable attorney's fees to the applicant for bringing the motion. (b) The amount of the notice of lien is excessive, the court may make an order reducing the notice of lien to an amount deemed appropriate by the court and awarding costs and reasonable attorney's fees to the applicant for bringing the motion. (c) The notice of lien is not frivolous and was made with reasonable cause or that the amount of the notice of lien is not excessive, the court shall make an order awarding costs and reasonable attorney's fees to the lien claimant for defending the motion. (Emphases added.) The statute does not clearly state what standard of proof the district court should use in determining whether the lien is excessive. The plain language of NRS 108.2275(6) is clear that if the district court determines that a mechanic's lien was made "without reasonable cause," then the lien is frivolous and the district court may expunge the lien. However, the "without reasonable cause" language does not appear in the paragraph relating to whether the lien is excessive. Therefore, the statute "is capable of more than one reasonable interpretation" and is ambiguous. Leven v. Frey, 123 Nev. 399, 404, 168 P.3d 712, 716 (2007). As a result, we must look beyond the plain language of the statute to determine what standard of proof the district court should use to determine if a lien is excessive. Id. Here, the legislative history does not provide any assistance, as it refers only to determinations of whether a lien is frivolous there is no mention of what level of proof is required to show that the lien is excessive. The legislative history of S.B. 434 states: "Looking to the level of proof required to show the claim is frivolous, Senator Adler pointed out the burden is such that the plaintiff must show there is absolutely no basis for a claim. If there is any showing of good faith, the court will not dismiss the lien." Hearing on S.B. 434 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 25, 1995) (emphases added). Because the legislative history is not helpful, this court must look to reason and public policy to determine what the Legislature intended the *1043 evidentiary standard to be for the district court to determine whether a lien is excessive. We conclude that the district court must apply a preponderance-of-the-evidence standard to determine whether a lien is excessive. We conclude that this standard comports with reason and public policy because the preponderance-of-the-evidence standard is the general civil standard. Irving v. Irving, 122 Nev. 494, 497, 134 P.3d 718, 720 (2006). "`[Preponderance of the evidence' merely refers to `[t]he greater weight of the evidence.'" McClanahan v. Raley's, Inc., 117 Nev. 921, 925-26, 34 P.3d 573, 576 (2001) (quoting Black's Law Dictionary 1201 (7th ed.1999)). If parties present conflicting evidence during an NRS 108.2275 hearing, the district court should determine which evidence has greater weight and, accordingly, whether the lien is excessive. Thus, the district court applied the correct standard in evaluating the evidence presented in this case. J.D. Construction further argues that the district court erred in concluding the mechanic's lien was excessive because the district court's decision was not based on admissible, reliable, or substantial evidence. We disagree. This court will not disturb the district court's factual determinations if substantial evidence supports those determinations. Radaker v. Scott, 109 Nev. 653, 657, 855 P.2d 1037, 1040 (1993). "Substantial evidence is that [evidence] which "`a reasonable mind might accept as adequate to support a conclusion.'"" Id. (quoting State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971))). Therefore, this court will only set aside findings that are clearly erroneous. Id. While we do not agree completely with the district court's reasoning regarding who was the most credible witness in this case, we affirm its decision because we conclude that it nonetheless reached the correct result. Sengel v. IGT, 116 Nev. 565, 570, 2 P.3d 258, 261 (2000) (affirming where the district court reached the right result for the wrong reason). J.D. Construction had the burden to show the adequacy of its lien, but it failed to do so. J.D. Construction failed to address the subcontractors' claims and whether its lien included money for the subcontractors. Further, despite being given the opportunity to depose the person with the most knowledge regarding the completion of the project, J.D. Construction failed to present substantial evidence regarding the percentage completed and the total amount of the contract in light of affidavits and evidence submitted by IBEX. Therefore, J.D. Construction's claims must fail. We conclude that the district court did not err in expunging the lien because it applied the correct standard of proof and substantial evidence supported its decision. Accordingly, we affirm the order of the district court. We concur: HARDESTY and PICKERING, JJ. NOTES [1] J.D. Construction also argues that the district court abused its discretion in awarding attorney fees to IBEX. We conclude that the district court did not abuse its discretion in awarding attorney fees to IBEX. Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). [2] J.D. Construction stopped work because it claimed IBEX had failed to pay as agreed under the contract. [3] The lien noted the original contract amount ($5,000,000), the total increase on the base contract amount ($1,700,041), the total amount of complete additional work above the base contract amount ($271,864), the total amount of all payments received ($1,709,573.95), and the amount of the lien after deducting just credits and offsets ($1,450,497.90). [4] IBEX claimed that J.D. Construction had already been paid $1,709,573.95, which was $453,764.04 in excess of the work actually completed on the project at the time. IBEX also paid $363,000 directly to a subcontractor, Pacific Coast Steel, on May 1, 2008, to remove Pacific Coast Steel's lien. [5] J.D. Construction never accounted for its payments to subcontractors or whether it still owed subcontractors money, or if they were included in the lien claim. [6] Parrish did all the field inspections for VCS as to work completed; however, he submitted his reports to VCS, which calculated the percentage completed in house. [7] The district court held oral argument on the motion but did not hear live testimony. The parties were permitted to argue regarding the motion but did not present evidence beyond the submitted moving papers, affidavits, and depositions. [8] Arizona and Oregon do not use a similar hearing to quickly challenge excessive or frivolous liens. [9] The summary proceedings for stop notices is codified in California and provides: If the original contractor asserts . . . that the amount of the claim as specified in the stop notice is excessive, or ... there is no basis in law for the claim ... he may have the question determined in a summary proceedings in accordance with the provisions of Sections 3198 to 3205, inclusive. Cal. Civ.Code § 3197 (West 1993). Either the original contractor or claimant may file an action entitling them to a hearing within 15 days for the purpose of determining each party's rights. Cal. Civ.Code § 3201 (West 1993). The original contractor, who is challenging the stop notice, has the burden of proof at this proceeding. Cal. Civ.Code § 3202 (West 1993). Importantly, [n]o findings shall be required in a summary proceeding under this article. When the hearing is before the court sitting without a jury and no evidence other than the affidavit and counteraffidavit is offered, if the court is satisfied that sufficient facts are shown thereby, it may make its determination thereon; otherwise, it shall order the hearing continued for the production of other evidence, oral or documentary, or the filing of other affidavits and counteraffidavits. Cal. Civ.Code § 3203 (West 1993). [10] In this case, the district court also granted J.D. Construction's request to conduct depositions. However, J.D. Construction did not request live testimony as to any material issue of fact, and we do not consider any abuse of discretion at this time as to any issue not raised before the district court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266134/	293 N.J. Super. 491 (1994) 681 A.2d 671 DANIEL F. NEWMAN, PLAINTIFF v. BRIAN DELAHUNTY, DEFENDANT. Superior Court of New Jersey, Law Division Ocean County. Decided August 15, 1994. 495 Charles Starkey, Toms River, for plaintiff (Starkey, Kelly, Blaney & White). Brian Delahunty, defendant, pro se. PISCAL, J.S.C. I. BACKGROUND This case poses the question: is it possible to defame an incumbent candidate for Mayor in a political campaign? The answer is yes. The setting is the Brick, Ocean County mayoral campaign of 1989. II. PROCEDURAL HISTORY This complaint for defamation was filed on September 24, 1990. Essentially, Daniel F. Newman, hereinafter Mr. Newman, sued Brian Delahunty, hereinafter Mr. Delahunty, and others connected with him. Mr. Newman was mayor and ran for reelection as the Democratic candidate. Mr. Delahunty ran as an independent candidate. The voters chose the Republican candidate on November 7, 1989. Mr. Newman alleged that the campaign as waged by Mr. Delahunty and his supporters, was concentrated to defeat him. Mr. Delahunty was charged with publishing and communicating numerous defamatory writings. See Appendix. The six count complaint alleges that the defamatory statements were "made with actual malice, with knowledge that the allegations were untrue, with a reckless disregard of whether the statements were true or not, and with knowledge that the allegations 496 constituted a charge of unlawful conduct on the part of the plaintiff." Each count contained a demand for "judgment against the defendants jointly and severally for punitive damages and costs." Michael Miller, named as a defendant in the complaint, was never served. The other defendants, "Concerned Citizens For Delahunty" and "Committee To Elect Brian Delahunty", had been ad hoc committees that no longer exist. No service was made on them or the fictitious defendants. Thus, the case proceeded with one plaintiff and one defendant. On February 18, 1992, Mr. Delahunty filed an answer to the complaint on his own behalf, essentially denying the allegations. On March 25, 1992, a pleading designated "Countersuit" was filed by Mr. Delahunty consisting of five counts alleging malicious conduct/harassment, the making of false statements, delaying his applications before the Planning Board, circulation of a letter alleged to be authorized by the defendant to put him in a false light, and uttering false rumors about the defendant. No jury was requested in either the complaint or the countersuit. The trial took five and one-half days; then a one day trial as to punitive damages. The plaintiff called eight witnesses and one rebuttal witness. The defendant called six witnesses in addition to himself during the liability phase of the case. III. POLITICAL CANDIDATES ARE PUBLIC FIGURES At the outset the Judge raised the question as to whether the parties were to be considered "public figures" as that phrase is used in Lawrence v. Bauer Pub & Print. Ltd. See Lawrence v. Bauer Pub. & Print. Ltd., 89 N.J. 451, 462-463, 446 A.2d 469 (1982) (the successful invocation of a constitutional privilege is controlled by whether defendants fall into the category of public or private figures); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Mr. Newman was willing to stipulate to that status, nonetheless, the 497 Judge, on the basis of plaintiff's position as then incumbent mayor and Mr. Delahunty's position as active candidate in the mayoral race, found each to be a "public figure" for the issues set forth in this case. IV. THE ELEMENTS OF DEFAMATION The United States Supreme Court has enumerated the basic principles in New York Times Company v. Sullivan. See New York Times Company, supra, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The Court once again recognized the general proposition that "freedom of expression upon public questions is secured by the First Amendment." New York Times Company, supra, 376 U.S. at 269, 84 S.Ct. at 720, 11 L.Ed.2d 686. Furthermore, "the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Id. (citing Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 [1931]). This court is cognizant of the valuable rights at stake and is mindful of this country's "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." See New York Times Company, supra, 376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d 686 (citing Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 [1949]). However, it was Justice Holmes who recognized that freedom of speech does not give one the right to falsely yell "Fire" in a crowded theater. See Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). Freedom of speech is a phrase that raised concerns from both poles, i.e. freedom of expression and the right to one's good name. 498 As was written by Professor Eldredge in his treatise The Law of Defamation (1978): The Courts are in a most critical and delicate area in considering what persons, who voluntarily inject themselves into public controversies and take positions on matters which are clearly "public issues," should be subject to the New York Times standard. A broad extension of this standard could be an instrument to destroy the very freedom of speech in whose name the extension is demanded. One of the great needs in contemporary America is to encourage more good people to participate in government, to speak out and stand up and be counted, on important questions.... Unbridled defamation concerning matters of public concern was a tool the Nazis used in pre-World War II Germany to destroy important men and render useless what they said, the men whose messages desperately needed to be heeded.... I fully realize that this argument cuts both ways. But the only justification for New York Times, in its drastic cutting down of the scope of actionable defamation, (and its destruction within its scope of the precious right of public vindication of one's good name) is that it is necessary in order to encourage people to speak out on important questions. If, in fact, the privilege will in some situations encourage people to speak out and, in others, discourage them, then only the net gain for free speech should be weighed against the value of reputation, in striking the balance on the scale of constitutional law. [Lawrence, 89 N.J. at 477, 446 A.2d 469, (Schreiber, J. dissenting) (citing L. Eldredge, The Law of Defamation (1978)).] Thus, the familiar standard that "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is with reckless disregard of whether it was false or not," applies to the case at bar. See New York Times Company, 376 U.S. at 279-280, 84 S.Ct. at 726, 11 L.Ed.2d 686. In New Jersey, it is clear that in actions for public defamation i.e. defamatory statements against a public official involving a matter of legitimate public concern, the plaintiff must prove each of the following five (5) elements by clear and convincing proof: 1) The statements must be defamatory statements of fact. 2) The statements must concern the plaintiff. 3) The plaintiff must prove the defamatory statements were false. 499 4) The plaintiff must prove the defamatory statements were communicated to persons other than the plaintiff. 5) Plaintiff must prove that defendants communicated the false statements to others with the actual knowledge that it was false or with a reckless disregard of whether it was true or false. (See Model Civil Jury Charge § 3.11A and cases cited therein). V. A REVIEW OF THE ALLEGED DEFAMATORY MATERIALS The alleged defamatory materials will now be scrutinized for these elements. See Appendix A-J. These exhibits may be referred to collectively as "the materials." The materials consist of the following: first, three editions of "The Bricktown Investigator" (Appendix A-C)[1]; second, five cartoons or caricatures (Appendix E-I); third, two double sided "flyers" or "hand outs" (Appendix D, J). The plaintiff has sustained his burden of proving by clear and convincing evidence each element of defamation with respect to the three editions of "The Brick Investigator", the flyer designated "Where your tax dollar really goes", and the cartoon designated, "Flyer Fast and Easy." See Appendix A-D, G. The cartoons, with the exception of Appendix G, and the flyer, "Justice for Sale" are protected by the first amendment. A. AS TO THE BRICKTOWN INVESTIGATOR The Bricktown Investigator has a newspaper like format consisting of several pages containing some red lettering and some pictures, but basically black print on a white ground. The first of the three editions entered into evidence, Appendix A, headlines on page two "Justice for Sale" in red capital letters. On page three it declares in red capitals that "Newman's Corruption Will Bring 500 Increase in 1990 Taxes" and "Newman's Land Deal Cheats Every Taxpayer in Bricktown". See Appendix A. "Corruption" is defined as, "the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person contrary to duty and the rights of others. See bribe, extortion." Black's Law Dictionary 345 (6th ed. 1990). "Justice For Sale" and "Newman's Land Deal Cheats Every Taxpayer in Bricktown" are not defamatory statements of fact. However, "Newman's Corruption Will Bring Increase in 1990 Taxes" charges Mr. Newman with corruption and is libel per se. See Lawrence, supra, 89 N.J. at 459, 446 A.2d 469 (1982). See also Ward v. Zelikovsky, 136 N.J. 516 (1994) at pg. 526, 643 A.2d 972. (The four recognized categories of slander per se are that the statements impute commission of a crime, contraction of a loathsome disease, occupational incompetence or misconduct and unchastity of a woman). Thus, element one is established. It is clear that the statements concern Mr. Newman, the incumbent Mayor, so element two is established. As to element three, falsity of the statements, it is usually as hard to disprove a charge of "corruption" as it is to prove the "malice" element. However, this case presents unusual facts. Mr. Newman denied the charges of "corruption" and "land deals." In support of his denial, he offered into evidence a letter from the State of New Jersey, Commission of Investigation, dated August 27, 1992. There was no objection and it was marked into evidence pursuant to Evid.R. 803(c)(8). The letter indicated the investigation concerning his "activities as Mayor of Brick Township" had been concluded and stated in pertinent part: "There will not be a public hearing or report on this matter. The Commission now considers this inquiry closed." Mr. Newman made no attempt to prove that the whole investigation may have been caused by Mr. Delahunty nor should the court leap to such a conclusion. There has been enough of that in this case. 501 If "land deals" was a reference to out of state property holdings by Mr. and Mrs. Newman, Mrs. Newman's testimony established that the only out of state property they own is a modest Florida condominium purchased in 1988. Evidence was produced that the funds used for the purchase were from a Home Equity Loan. See P29, 30, 31. It became clear from the case presented that what Mr. Delahunty meant by "corruption", "land deals" and "justice for sale" was a product of his own malice, a misconstruction of various to him, inexplicable land transactions and a hyperbolic spin on the use of the car provided by the Town for the Mayor's use. What did Mr. Delahunty have to say about "corruption" and "land deals" when the opportunity arose during his case and when pressed during cross examination? The most serious charge presented was that Arthur Cierzo, the head construction official for Brick Township since 1980, solicited a bribe from Mr. Delahunty when he, his partners and brothers-in-law, Peter Ferro and Anthony Ferro, and their partner, Mr. Richard Carroll, stood outside of the Town Hall after a meeting. Mr. Cierzo was said to approach them and say, "I want a lot (from the Jackob's Farm subdivision?)[2] for my daughter". This was first brought out by Mr. Delahunty asking Mr. Cierzo himself, (subpoenaed by Mr. Delahunty), who denied any such conversation. Later, Anthony Ferro did give Mr. Delahunty some support that the bribe was solicited in their presence. Curiously Peter Ferro who was supposed to be there said nothing of this. Mr. Delahunty addressed the issue in this fashion. He admitted that P33 (a check to Arthur Cierzo for his mileage on the subpoena) had a legend on it "bag man", a term which he wrote on the check. He still calls Mr. Cierzo "bag man" and dares him to do something about it. This is an example of recklessness from his own lips! And for the first time, Mr. Delahunty says that Mr. Cierzo also asked for plumbing business be sent to Pineland 502 Plumbing (Newman's company). Did this happen? Would one seeking a bribe solicit it in front of four people? Why didn't the testimony of the two witnesses who did testify as to this mesh? From Mr. Delahunty's own testimony the Federal Bureau of Investigation was not impressed with this bribery story, and he refused their request to wear a "wire" to tape Mr. Cierzo. The court places no credence in this bribe story and the feeble last second attempt to tie it to Mr. Newman. No credit is given to this tale of alleged bribery. "Land deals" was a charge against Mr. Newman. What did Mr. Delahunty mean by this? Was it the removal of a drainage pipe from the Poppy Court subdivision? First, no testimony established that Mr. Newman had anything to do or say about this. Second, testimony failed to establish that the removal of this pipe had anything to do with the subsequent drainage problems there. On the contrary, Mark Speir, the construction supervisor on the project, testified that the drainage problem was due to an adjacent subdivision. Was Mr. Delahunty's source for this information on "land deals" and "corruption" the rumors that Township workers would discuss at Mr. Delahunty's headquarters? No attempt was made to go into any of this material. Was "land deals" a reference to other Brick Town developments or was it the out of state properties impliedly gained by Mr. Newman in an allegedly ill gotten fashion?[3] Mrs. Newman adequately explained the Florida transaction and no attempt was made to explain any others by the defendant, nor was there any attempt to refute her testimony. The zoning code enforcement officer, Sean Kinnevy, was called by Mr. Delahunty. He testified that a building known as Parkwood Plaza remained vacant for a long time (whatever that means) but no Code Violations were issued. No link of this was made to Mr. Newman though it is presumed to have happened during his 503 tenure as Mayor. Nor was anything said to indicate any violations existed. Mr. Kinnevy spoke of a Meadow Run subdivision. Mr. Newman's Pineland Plumbing Co. did work on this job. Some homes were begun without issuance of building permits. However, Mr. Kinnevy said this was common i.e. a builder under construction of a large subdivision would move ahead of his paper work. Eventually all the paper work was straightened out. Again, no direct involvement by Mr. Newman as having intervened at Town Hall or the like was established. Mr. Delahunty's suspicions do not amount to evidence in a court of law! An example of how Mr. Delahunty thinks is instructive. He marked Exhibits D3 (a deed between Mr. Newman and the Gunthers, Mr. Newman's brother-in-law and member of the Planning Board), D41 (Deed from Anastasiades to Daniel Newman) and testified in summary that he once worked as a title searcher, and that he did title searches on all of the principals involved in this matter (including Mr. Starkey, plaintiff's attorney!). From these deeds and other matters, Mr. Delahunty concluded some kind of "corruption", or dishonest "land deal." Furthermore, he marks a picture D4 which shows pilings sunk on land he says is the property in question in deeds, D3 and D41. How can someone get a permit to erect pilings on what is to him, obviously wetlands he asks? His answer is that this bespeaks corruption on the part of Mayor Newman. Mr. Gunther was called as a rebuttal witness. He established that he does own the property described in Deeds D3 and D41. He paid for it with a loan from United Savings Bank (P34). He believed he purchased it directly from Anastasiades, that closing was delayed due to "riparian problems." He said that Anastasiades did not want to sell to him (this was not explained any further), and he was unaware that Mr. Newman's name was on a deed in his chain of title. From this Mr. Delahunty concluded "corruption" and "land deal," but the Court finds this is susceptible of a non corrupt interpretation, i.e. the use of Mr. Newman as 504 a "straw man" by Gunther's closing attorney to facilitate the transaction. Element four, communication (referred to in older cases as the "publication" of the libel to others), was clearly and convincingly proven by just about every witness plaintiff called. Each said he or she received "The Brick Investigator" and was given the flyers by Mr. Delahunty himself or a member of Delahunty's family. There was no testimony as to the exact date of publication or distribution except that it was in the fall of 1989. Mr. Delahunty, the Ferro brothers and his wife testified that they handed out "The Brick Investigator" and some of the cartoons. The cartoons and flyers were distributed by fax and by hand as several witnesses testified to receiving them and several testified as having handed out or placed them on door knobs of homes. According to the testimony of Mr. Newman and Mr. Peter Ferro, Appendix D ("Where Your Tax Dollar Really Goes") was faxed to Brick Municipal Offices and other business offices. Delivery of the defamatory material to people who understand that the statement is defamatory is a part of element four. See Restatement (Second) of Torts § 577 cmt. b-c (1977). The witnesses called by Mr. Newman each had received the Brick Investigator and the other materials and each understood the statements in the defamatory sense. Moreover, Mr. Delahunty, Peter Ferro, and Mrs. Delahunty admitted they made wide delivery of the materials. Therefore element four is proven. Element five, knowledge that the statements were false or reckless disregard has also been proven in this case. First, as to Mr. Delahunty's mind set, Mr. Newman testified that the first time he was aware of Mr. Delahunty stemmed from a Planning Board meeting in 1988. The meeting room was packed with people who had been informed by Mr. Delahunty that a certain tract of land, the so called "Jackob Farm" tract was about to be rezoned for "shopping centers." Mr. Delahunty, the Ferro brothers 505 and a Richard Carroll were said at various times during the trial to have bought this property or have an option on it or some contingency contract to buy it. Mr. Delahunty's testimony varied from that of Peter Ferro in this regard. Mr. Newman testified that he had no knowledge of any plan to rezone this property for shopping centers. He indicated this became a very heated planning board meeting because the crowd was fired up about a "shopping center" plan and the Board didn't know what was going on. This property was a constant reference point by witnesses called by each side at trial. Mr. Delahunty and his in-laws had an application before the Board of Adjustment as well as the Planning Board regarding this property. There were stories about it in the papers; Could it be a park site for "Green Acres" money? The site was a source of constant speculation in the local press. Eventually, Mr. Delahunty's application for this site would be approved by the Planning Board. In fact, it was admitted by Mr. Delahunty that during the late nineteen eighties he made six (6) applications to the Planning Board (one would be withdrawn and resubmitted). All were approved. Peter Ferro, was called as a witness by Mr. Newman. As to the Jackob's Farm property he said, "Newman took hold of the Board (Planning) and suddenly it was (zoned) commercial." Herbert Stephens, a man with over forty years in the printing business, was assisting Mr. Delahunty in his campaign and helped him in discussions with a printer. When asked if Mr. Delahunty ever told him how he felt about Dan Newman he said "yes." He then testified, "I could tell there was animosity there", he (Delahunty) intended to "harass him" and Mr. Delahunty also told Mr. Stephens, "I got it out for Dan Newman." During Mr. Delahunty's case, he called witnesses who were asked questions about the Jackob's Farm property and the hearing before the Planning Board. No one supported a thesis that Mr. Newman had any hidden, improper motives with regard to the 506 property. But all contributed to the concept that Mr. Delahunty was infuriated that he did not get his way quickly and that Mr. Delahunty blamed this delay on Mr. Newman. Mrs. Carol Delahunty said she felt that she and her husband were treated unfairly by the Planning Board. She was not sure she had been to any of the meetings on the Jackob's Farm property! She said she was probably at the Pine Street application meeting. From where did she get this impression? The court infers she got this from her husband. Mr. Delahunty spent a great deal of his direct testimony on the Jackob's Farm/Planning Board matter. From his remarks I conclude as a matter of fact that this property was a hotly contested issue, i.e. what zone of the new Master Plan should the property be designated. However, I could discern nothing improper by members of the Board or by Mr. Newman. Yet, it is clear that this battle was the cause of Mr. Delahunty's animosity towards Mr. Newman; the cause of his concentration on Mr. Newman in the mayoral campaign. (A scrutiny of the "materials" submitted shows no mention of the other candidate and eventual winner Zaboyan!) Mr. Delahunty denied any animosity towards Mr. Newman. He testified Mr. Newman had it in for him because Mr. Delahunty and his family signed the change of government petition (as did hundreds of others). This petition eventually led to partisan elections in November and Mr. Newman's loss of office. Mr. Newman testified that his campaign strategy was to ignore Mr. Delahunty during the campaign believing him to be insignificant. Moreover, while there were constant references to delays by the Planning Board, no witnesses, much less an expert, was called to give a time table as to what was normal for a Planning Board application in Brick at this busy time. However, there was testimony that the Board had very crowded agendas and that this was a "boom" time for building in Brick (as it was in all of Ocean County). Lastly, this application was approved according to Mr. Delahunty just before the election! 507 A perusal of most New Jersey cases on defamation of public figures reveal that most causes of action fail for inadequate proof as to actual malice, i.e. plaintiffs must prove that defendant communicated the defamatory statement to others with actual knowledge that it was false or with a reckless disregard of whether it was true or false. The Court finds this element has been proven in this case by clear and convincing evidence for the reasons stated herein. Not only did Mr. Delahunty bear Mr. Newman ill will because of what he perceived to be Newman's manipulation of the Planning Board against him as explained above, and not only did he express these sentiments to his campaign workers (see Herbert Stephens above), but he had reckless disregard for whether the materials distributed were true or false, and I find actual knowledge that he knew some of these charges were false. As to "reckless disregard" we have the testimony of Peter Ferro, an admitted member of the "Committee To Elect Brian Delahunty." It was clear from his testimony that he and the Delahunty group wanted to put distance between themselves and Mike Miller, (who is said in the publication to be the editor of "The Bricktown Investigator"), and also between themselves and the printing of, content of and payment for the Bricktown Investigator. Peter Ferro's testimony nonetheless was revealing as to the thought process of the "Committee To Elect Brian Delahunty." The court finds that Peter Ferro and Paul Wild were, along with Brian Delahunty, the only members of the committee. From the court's observation of him, CPA Paul Wild appeared to be greatly upset and embarrassed about being involved in this affair. Mr. Wild disclaimed any political discussions with the committee at any time! At one time Peter Ferro said he "didn't pay much attention to this (referring to Appendix A-C) and then admitted he knew it contained "rumor, hearsay and some lies." He opined that "some of the charges had validity;" "someone obviously believed it was true or they wouldn't have printed it;" "we did not attempt to 508 justify all of the statements in the material;" and "yes, you are allowed to call a politician a crook." What clearer proof can one hope to have as to the knowledge and attitude of the defendant than these words from his main campaign aide? Peter Ferro did admit his signature on P22 and P23, (delivery tickets for 3,000 and 2,400 copies of Appendix C, "The Brick Investigator"). The owner of Hatteras Press, Robert Duerr testified that Appendix C, an issue of "The Bricktown Investigator", P4 in evidence, was produced by his company, and that the bill for the printing of some 20,000 copies was paid for by a set off against debts his company owed to Ameritel, the company of the Ferros. Mr. Delahunty and his witnesses tried to distance themselves from these materials by trying to disguise payment for the printing in their filings on campaign expenditures. However, plaintiff's attorney, produced clear and convincing evidence through a trail of receipts, bills and invoices tying this directly to Mr. Delahunty and his brothers-in-law, with payment through Ameritel, the Ferro owned company. Herbert Stephens, the Delahunty campaign worker with forty years in the printing business, said he would never print these materials because they were too "harsh." Mr. Delahunty was more circumspect in his testimony. He denied knowing the Mike Miller who worked for Ameritel, who claimed to be the editor of "the Brick Investigator" until confronted with this fact at his deposition; then testified he never discussed the campaign with Mike Miller. (Incidentally, the Delahunty campaign headquarters was the Ameritel offices). He admitted the campaign committee to elect Brian Delahunty consisted of himself, Peter Ferro, Mr. Wild and maybe Anthony Ferro, Jr. He said as to the content of "The Brick Investigator" he looked into some of these things to the best of his ability and "it was not wrong (to distribute these materials) if you believed it was true." Asked what he did to find out if it was true, he answered "I knew the S.C.I. was investigating," "I knew Cierzo tried to shake me down," and "I followed Newman in the town 509 car." (As to the latter item, he said he spent one day following Mr. Newman on his routine; stopping at plumbing job sites as well sites in Brick requiring his attention as Mayor; facts freely admitted by Mr. Newman). Eventually, he admitted he was responsible for what the "committee" put out. All of this more than meets the standards set forth in Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 152-158, 516 A.2d 220 (1986) and Lawrence, supra, 89 N.J. 451 at 466-469, 446 A.2d 469. The second "Bricktown Investigator" offered into evidence also contained defamatory statements of fact. See Appendix B. (This was a 8 page hand-out. Only page 6 is reproduced here). On page six of this edition a bold capital headline declaims "THE TRUTH-Newman's Record." One third of the way down there is a subheadline stating "Voters of Brick Township The Facts About Newman"; eight items are listed as "fact". The obvious defamatory statements therein are to be discussed. They are: Fact 1 Newman awarded high priced contracts. Fact 2 Newman has given high priced vouchers for hundreds of thousands of dollars to his personal friends. Fact 3 Newman uses his public office for his own personal gain. Fact 4 Millions of dollars in special tax abatements to his friends in special deals. Fact 8 Newman has put a $price on everything in Brick Township. Whether a statement is one of fact is a question of law for the court. Gertz, supra, 418 U.S. at 339-340, 94 S.Ct. at 3006-3007, 41 L.Ed.2d 789; Kotlikoff v. The Community News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). Each of these five statements of fact, when read along with the allegations of "Corruption" in bold type at the top of the page, are clear expressions of fact that Newman is engaging in illegal 510 conduct while in office. This scenario is similar to Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716 (1983), cert. denied 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111 (1983). In Silsdorf, supra, charges that "it pays to do business with the mayor"; that "plaintiff is profiting in his law practice at the Village's expense"; and that "his administration is corrupt" were statements of fact capable of being defamatory. Id. at 825, 449 N.E.2d at 719. The opinion holds: Even privilege has its limitations and even a public figure in the midst of a political campaign is entitled to some degree of protection. It is true that our society places a high value on the uninhibited and open debate necessary for the responsible functioning of political processes, to the extent even of protecting some falsity to avoid creating a chilling effect upon that expression (New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686; Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-341, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 supra). But sufficient protection is afforded defendants by virtue of the requirement that plaintiff prove actual malice (emphasis added). [Silsdorf, supra, 462 N.Y.S.2d at 827, 449 N.E.2d at 721.] Thus, Silsdorf bears a similarity to the case at bar and the first element of defamation is found by clear and convincing evidence. Elements two, three, four and five are as set forth above. The third "Bricktown Investigator" offered into evidence contained defamatory statements of fact. See Appendix C. (This was a 4 page hand-out. Only pages 1 and 3 are reproduced here). This issue contains on the bottom right of page 1 in bold red the headline "NEWMAN'S THUGS ATTACK SENIOR CITIZEN" with a picture beneath it of Anthony Ferro, Sr. taking oxygen. Next to the picture in small letters is "The Whole Truth, Nothing But the Truth on Page 3." On page 3 under the bold red statement in caps is "Newman's Thugs." To charge that Mr. Newman had this man (the father-in-law of Brian Delahunty, a fact not disclosed in the story), beaten is to charge criminal activity and is a defamatory statement of fact. Thus, it is libel per se, see above. Element two is clearly proven since the statement concerns Mr. Newman. As to elements four and five see above. Thus, element three remains to be discussed. 511 Was this a false statement? Compare the story on page 3, see Appendix C, with Mr. Delahunty's cross examination testimony. He testified that he was at a meeting in Town Hall sitting in the rear of the room. From outside he heard his father-in-law cry out from the direction of the Planning Board. He rushed out to find his father-in-law and others being restrained. An ambulance took his father-in-law to the hospital. (D4 admitted as the hospital bill indicated a diagnosis for hypertension). An attorney, John Doyle, went back to presenting his application before the Planning Board. The only arrest was that of Mike Miller, the same unserved defendant in this case. No connection of this is made to Mr. Newman. Mr. Newman testified he was not at Town Hall that night! No one refuted this. Was Mr. Ferro struck? If so, by whom? Or was he overexcited? (See D4 diagnosis for hypertension). Mr. Delahunty presented no further testimony as to these matters and made no connection to Mr. Newman. Now if the facts as Mr. Delahunty testified were put into a story without the headlines "Newman's Thugs", if Mr. Ferro's relationship to Mr. Delahunty was given, if no hearsay was used, if you let the reader conclude that Mr. Newman may be behind this, then this story could have an impact and pass constitutional muster as an "expression of opinion" on matters of public concern. However, no such attempt was made. Just the assertion as fact that Newman's thugs beat up a senior citizen complaining about "higher taxes" and trying to "end corruption." This story was clearly designed to injure Newman's reputation, expose him to hatred, contempt and ridicule and have a tendency to injure him not only in his business but as a candidate for office. This is stated as fact not as opinion. The story, besides using poor grammar, is defamatory, false and actionable! B. THE FLYERS The flyer, Appendix J, "Justice for Sale" (also reprinted in page 2 of Appendix A) is borderline. "Kick backs for him" is defamatory but in the context is stated as being "if he could" and 512 thus, is protected as opinion. Kotlikoff, supra, 89 N.J. at 68, 444 A.2d 1086 (adopting the Gertz v. Robert Welch Inc. rationale). As to the Flyer, Appendix D, I find this is a defamatory statement of fact. The legend "Where Your Tax Dollar Really Goes" with a revised dollar bill beneath it (Dan Newman's picture, called a Dan Dollar), with the coins beneath it amounting to one hundred cents. The legends ascribed to the coins I find to be defamatory statements of fact are: A) Quarter Newman's Florida Investments; B) Quarter Special favors to increase his Pineland Plumbing Business aka Newman Enterprises. Along with the statement in capital letters at the bottom of the page "End Corruption", these items charge Mr. Newman with taking money from the Brick tax payers through various corrupt schemes which lead to him having Florida investments and getting plumbing business by arranging special favors. This is similar to what the New York Court of Appeals found actionable in Silsdorf v. Levine, supra. It is clear that elements one and two are proven. That the statements are false was proven by the testimony of Mr. and Mrs. Newman (see above) and the conclusion of the S.C.I. No attempt was made at trial to justify these comments. Mr. Delahunty tried to distance himself from making or publishing this item but distribution was clearly and convincingly proven from the testimony of plaintiff's and defendant's witnesses as set forth in detail above. The discussion of element five as set forth above covers this item as well. C. THE CARTOONS AS DEFAMATION No New Jersey case seems to have addressed this aspect of defamation. Cartoons and caricatures have a special place in the history of politics and the law. This was recently declared by the United States Supreme Court in Hustler Magazine v. Falwell, 485 513 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). The relevant facts of that case were as follows: The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody." [Hustler Magazine v. Falwell, 485 U.S. at 47, 108 S.Ct. at 878, 99 L.Ed.2d 41.] Hustler recognizes the historical challenges presented by an allegedly defamatory cartoon: Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New Unabridged Twentieth Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events-an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57 (Nov. 1962). Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved "because of the emotional impact 514 of its presentation. It continuously goes beyond the bounds of good taste and conventional manners." C. Press, The Political Cartoon 251 (1981). Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate.... From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them. [Hustler, supra, 485 U.S. at 55, 108 S.Ct. at 881, 99 L.Ed.2d 41.] The Court held that any recovery, whether for defamation or intentional infliction of emotional distress, must include as an element of proof that a false statement was made with knowledge that the statement was false or with reckless disregard as to whether or not it was true. See Hustler, supra, 485 U.S. at 55, 108 S.Ct. at 882, 99 L.Ed.2d 41. Furthermore, as to parody, an added element seems to be necessary for an action to succeed, namely, "whether the speech could reasonably be interpreted as stating actual facts about the public figure involved." Hustler, supra, 485 U.S. at 51, 108 S.Ct. at 879, 99 L.Ed.2d 41. Generally cartoon and caricatures are so exaggerated in their comment that the reader cannot take it as being a true statement of fact. A lack of New Jersey cases on cartoons as defamation led us to the following: In King v. Globe Newspaper Co., 400 Mass. 705, 512 N.E.2d 241 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988), the former Governor of Massachusetts sued the Globe newspaper, two of its columnists and a cartoonist. Summary judgment motions were granted by the trial court. The cartoons involved are printed in the Appendix to that case. The motions as to the cartoons were upheld as being "artistic rhetorical hyperbole" commenting that the governor was responsible for several ill advised appointments. See King, supra, 512 N.E.2d at 245. It was further stated that "cartoons are seldom designed to disclose facts, but rather are ordinarily understood by reasonable views to be rhetorical, exaggerated means of expressing opinions." Ibid. 515 Appendix C of that case involved a cartoon as a billboard sign with caricatures of the governor and the president of Ackerley Billboards holding bags of money. The legend says "Ackerley Billboards Can Put Money in Your Pockets Too." There was an editorial by the same paper that asserts that the billboard industry which has been dying suddenly revived after a $7,000.00 campaign contribution from Ackerley Communications dropped into the Governor's campaign treasury. The Court held: The billboard cartoon must be viewed as a protected expression of opinion. We do not agree with the plaintiff that the cartoon depicts him "accepting cash bribes ... in return for his support of the efforts of Ackerley Communications." Rather, we agree with the judge that "[t]he alleged facts figuratively conveyed by the cartoon (that the plaintiff and Locke received personal cash contributions and/or payoffs from Ackerley) simply do not flow from a form of expression that clearly draws upon overstatement and extravagant symbolism to make its point. The cartoon implies nothing more than Szep's editorial judgment that the plaintiff's association with Ackerley raised questions of public concern. [King, supra, 512 N.E.2d at 246.] The interpretation of the cartoon was aided by the accompanying editorial, which was found to be an expression of opinion protected by the Gertz v. Robert Welch Inc. rationale. The case of Celebrezze v. Dayton Newspapers Inc., 41 Ohio App.3d 343, 535 N.E.2d 755 (1988) involved a suit by a State Supreme Court judge who sued the newspaper over a cartoon that ran during the judge's campaign for reelection. (The cartoon is reprinted as an appendix to the case 535 N.E.2d at page 760). The cartoon shows an automobile bearing the judge's name on its license plate carrying a machine gun firing at passengers at a store front with the sign overhead "Ohio Bar Association" and a doubled over man in front of the doorway as if just shot, another shot man in the gutter and a skunk sitting on the curb. Summary judgment dismissing the claim below was affirmed with these words: One element of a cause of action for libel is that the defamatory publication be an assertion of a fact. There is no such assertion here. No reasonable person could conclude from viewing Priggee's cartoon that he was accusing Celebrezze of the criminal act of murder or attempted murder. The scene depicted was exaggeration, 516 hyperbole, much as in Matalka v. Lagemann (1985) 21 Ohio App.3d 134, 21 OBR 143, 486 N.E.2d 1220, where one cartoon portrayed the presiding officer of the city council as an auctioneer selling off the council vote to the highest bidder, and another cartoon portrayed council as a prostitute willing to sell her favors. The decision in Matalka, supra, relied on Greenbelt Coop. Publishing Assn., Inc. v. Bresler (1970), 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6, which characterizes these types of expressions as "rhetorical hyperbole" and "a vigorous epithet * * ." Id. at 14, 90 S.Ct. at 1542. The cartoon in this case was likewise rhetorical, perhaps allegorical, but not capable of being interpreted as being factual or defamatory. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. [Celebrezze, supra, 535 N.E.2d at 758.] We review the cartoons in light of these standards and search for whether the cartoons assert facts or opinion. Appendices E, F, H, I can be taken together. Each of these contains those elements of exaggeration, hyperbole and obvious overstatement. Each requires the observer to read in a great deal of his own facts and opinions to gather the theme of the cartoon. For example, as to Appendix E, without more one cannot conclude the deeds in the belt of the colossal figure represent an allegation of corrupt money used to buy out of state properties. (Charges which are false as proven above). This and the others are no more than exaggerated hyperbolic opinion. Appendix G is different. Here the message is plain. One figure standing before a store having an "Opening" sign in its window. "Spring 1988" is slashed. "Fall 1988" is slashed. Spring 1989 remains. A figure in front (the owner) says "Hey Joe How'd you get your stores up so fast Site Plan, Town Council Approvals, Building Permits, Inspections and C.O. I applied a year ago and I'm still waiting." On the right side of the cartoon is another store with Grand Opening announced and banners flying. A portly figure with drooping mustache and thick glasses stands next to a truck with lettering (PL or P1) visible on its side. (This represents an exaggerated Newman). 517 A figure opposite the "owner" replies "Its fast and easy in Brick! Just use Pineland Plumbing. The Mayor owns the company." In a second comment, this figure, holding a brief case says, "Comming [sic] Dan." "I've got it here." It takes very little local knowledge and imagination to conclude what the point here is: use Mayor Dan Newman's plumbing company and he will use his influence to get your store approvals and a certificate of occupancy. This is a not so subtle return to the theme that Mr. Newman is corrupt. Is this a statement of fact or is it opinion? We apply the principles stated in Gertz, supra, and more recently in Ward, supra, (involving an oral statement at a condominium meeting discussing the concept of verifiability as it relates to opinion versus fact). "Unless a statement explicitly or impliedly rests on false facts that damage the reputation of another, the alleged defamatory statement will not be actionable.... [O]nly if ... it suggested specific factual assertions that could be proven true or false could the statement qualify as actionable defamation." Id. at 531, 643 A.2d 972. There is no opinion stated in this cartoon. The message is simply this, pay off Newman by using his plumbing company or with money from the brief case and he will grease the approval process at Town Hall. In essence, then, I find cartoon, Appendix G, to be another charge of corruption. As the explanation of this charge has been covered completely in discussion of "The Bricktown Investigator", (Appendix A-C), each of the necessary elements has been found to exist and thus, this cartoon is defamatory fact, concerns the plaintiff (the cartoon uses his name "Dan", a caricature that is consistent with others depicting Dan Newman, and refers to "Pineland Plumbing", "the Mayor owns the company"), charges of corruption have been proven false (see P3 and refer to the testimony of Mr. and Mrs. Newman), there has been communication 518 and there has been proven reckless disregard and/or knowledge of falsity. See above. VI. THE "COUNTERSUIT" This pleading filed by Mr. Delahunty on March 25, 1992 contained five counts. The only proofs offered as to any defamation of Mr. Delahunty came during Mr. Delahunty's testimony. He stated that in a May 1989 Asbury Park Press article, Mr. Newman called him a builder developer who is trying to rip off and rape the Township of Brick. The article, D21, was marked into evidence. Applying the five elements set forth and discussed above, this statement must fail as defamation for the following reasons: it is a statement of opinion not of fact; there is no proof that it was communicated with actual knowledge of its falsity or with reckless disregard; and there was no proof that this was actually stated by Mr. Newman. In a similar vein was the article from the Observer newspaper of September 16, 1989, D44, in which it was alleged that Mr. Newman compared Mr. Delahunty's action to those of a "Columbian Drug Lord". This is clearly opinion. No reasonable man would in the context accept this as a statement of fact charging Delahunty with being a Columbian drug lord. Nor is there any proof that this was an actual and accurate statement by Mr. Newman. The comment in the article does not even have quotation marks around it. Thus, for the law as expressed in Kotlikoff, supra, 89 N.J. at 68-73, 444 A.2d 1086, these are statements of opinion and not defamatory. VII. DAMAGES At the outset of trial, it was noted that the principles of Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 627 A.2d 1081 (1993) would be followed and thus no proofs as to punitive 519 damages would be taken during the trial. The complaint never sought "compensatory damages." It would have been difficult to prove any compensatory damages in this factual setting. To conclude that because of these defamatory attacks Mr. Newman lost the election would have been speculative. To attempt to prove loss of profits from the plumbing business in an economy that has been less than robust for the building business in Ocean County would have been futile as the law requires loss of profits to be proven with specificity. J.L. Davis & Associates v. Heidler, 263 N.J. Super. 264, 276-277, 622 A.2d 923 (App.Div. 1993). There was some testimony as to emotional distress both from Mr. and Mrs. Newman. Mr. Newman testified that during the campaign these materials had an effect on him; that he did not have a desire to go out campaigning and suffer the abuse that was being directed to him. Thus, he avoided some campaign events and some social events. Mrs. Newman testified that Mr. Newman did not sleep well, she would see him late at night at the kitchen table contemplating one of the materials and shaking his head in dismay and disgust. Mrs. Newman also testified that she was involved in fifteen election campaigns and this was the most bitter. These materials had an effect on her and the whole family, (their daughter, a school teacher, was confronted with these materials by her students), and she also felt no desire to continue former social and civic activities during and after the election. Nonetheless, it has long been the law in New Jersey that in slander per se actions (for instance, when the plaintiff is charged with theft), the plaintiff need not prove "special damages" i.e. compensatory damages. Hall v. Heavey, 195 N.J. Super. 590, 594-597, 481 A.2d 294 (App.Div. 1984). Therefore, the Court found nominal damages in the sum of $1,000.00 and declared that under the circumstances that punitive damages would be awarded. 520 PUNITIVE DAMAGES Following the precepts set forth in Herman, supra, the parties were advised at the outset of trial that evidence as to punitive damages would be submitted if, and after, a verdict was entered as to liability. The trial ended on June 28, 1994. The attorney for the plaintiff asked for additional time to present evidence as to punitive damages and to do discovery, (apparently testimony from defendant and his partners about ownership of the Jackob Farm tract was in conflict with information plaintiff's counsel had). Thus, I allowed some forty-five days. The defendant later moved for additional time and answers to certain interrogatories. I allowed the answers but kept August 15, 1994 as the firm date for continuing and ending the trial. Herman, supra, establishes parameters for the award of punitive damages. The following factors are to be considered: (1) there should be a reasonable relationship to the actual injury; (2) defendant's financial condition, i.e. the ability to pay, which makes sense from both the deterrence aspect and the punishment aspect (twin goals to be achieved in awarding punitive damages); and (3) the plaintiff's litigation expense. Factor four, punishment from other sources, would seem to relate to possible criminal punishment, not relevant here. Factor five, profits that defendant made by his conduct, is apparently a Corvair like products liability situation e.g. how much money did General Motors earn by not putting the gas tank within the frame of the car? N.J.S.A. 2A:58C codifies criteria for punitive damages in products liability cases. It adds to the above factors a focus on the defendant's awareness of the harm being caused and the tortfeasors actions after awareness of the harm caused and the duration of the conduct. Fischer v. Johns Manville Corp., 103 N.J. 643, 655, 512 A.2d 466 (1986), focuses on whether the wrongdoer's conduct is "especially egregious." The case repeats earlier sentiments that the punitive damages serve "to express the community's disapproval 521 of outrageous conduct." Id. at 657, 512 A.2d 466. Hustler, supra, condemned false statements of fact. "False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counter-speech, however persuasive or effective." Hustler, 485 U.S. at 48, 108 S.Ct. at 880, 99 L.Ed.2d 41 (citing Gertz 418 U.S. at 340, 344, n. 9, 94 S.Ct. at 3007, 3009, n. 9). Considering these precepts and applying them to the facts in this case, Mrs. Newman was eloquent in conveying the sense of outrage and helplessness that these attacks had upon the entire Newman family and Mr. Newman in particular. Mr. Newman could not campaign with vigor and avoided certain situations and opportunities. This testimony establishes a real injury with manifestations of suffering just as if Mr. Newman had been injured in an automobile accident and remains with a "psychic overlay." The harm and damage lasted throughout the campaign and continues. As William Shakespeare said of reputation some four hundred years ago: Iago. Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed. (emphasis added). [William Shakespeare, Othello, Act III Scene III, Iago to Othello, lines 155-161 (A.L. Rouse, 1st ed., 1978).] It is difficult to restore a good name once it has been damaged. Thus, it is arguable that Mr. Newman can never fully recover from the harm, so in a sense then his injury and damage is to be considered permanent. I find the persistent conduct of Mr. Delahunty to be outrageous; that Mr. Delahunty showed no restraint with regard to the material he distributed; that he made little or no attempt to 522 distinguish fact from rumor and seems to have invented material. He had no consideration for the harm that he would inflict with his malicious misstatements of fact. Such conduct, if it goes unpunished, would deter good people from participating in the political process. See Eldredge "The Law of Defamation" (1978), cited above at page 498, 681 A.2d at 674. At the trial on August 15, 1994, Mr. Newman's attorney presented Mr. Delahunty's income tax returns over several years. He also presented evidence relating to partnership interests in real estate holdings having substantial value. The Jackob's Farm tract is listed for sale at $1.3 million. I find Mr. Delahunty has a 25% interest in that property as well as others (one property has a $198,000.00 contract on it at present). While it is difficult to ascertain the present market value of all but the property that has a contract, it is clear that he has substantial equity in real estate. It is also clear from other testimony that he has capacity to earn money as a builder and in other fields as well. In fact his talent and demonstrated intelligence makes his actions in this case all the more sad. Mr. Delahunty raises a smoke screen as to various outstanding debts, many of which are owed to his mother and are unsupported by legal instruments of debt. The Court does not believe it must make a definite finding as to his exact net worth in order to assess punitive damages. To find he has assets of substance and the capacity to earn a comfortable living is sufficient. Mr. Delahunty has also made several transfers of property from joint names to his wife's name. These may require future scrutiny. Therefore, having in mind all of the above and especially considering that this is not an isolated instance of defamation, but a course of conduct with five separate instances of defamation, (Appendicies A, B, C, D and G); I enter an award of $200,000.00 to Mr. Newman to redress the harm suffered, to deter future conduct of this nature and to punish Mr. Delahunty for the persistent outrageous conduct. 523 To this I add the sum of $1,000.00 and the sum of $13,388.49 which I find to be the reasonable and necessary legal fees expended by Mr. Newman to vindicate his good name; making a total award of $214,388.49 nominal and punitive damages, plus interest as provided by the Rules of Court. 524 525 526 527 528 529 530 531 532 533 *534 NOTES [1] The original trial opinion contained all of the publications alleged to be libelous. This opinion for the sake of brevity eliminates several of the publications found not libelous. [2] The Jackob's Farm subdivision is discussed at length at p. 504 infra. [3] This cartoon is Appendix E.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266148/	681 A.2d 1168 (1996) STATE of Maine v. Leland COLLINS. Supreme Judicial Court of Maine. Submitted on Briefs November 15, 1995. Decided April 29, 1996. David W. Crook, District Attorney, Augusta, ME, for the State. Ronald Bourget, Bourget & Bourget, Augusta, ME, for Defendant. Before WATHEN, C.J. and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ. LIPEZ, Justice. Leland Collins appeals from a judgment entered in the Superior Court (Kennebec County, Delahanty, C.J.) granting the probation officer's motion to amend the conditions of his probation. Collins contends that there was an insufficient basis for amending his probation conditions. We affirm the judgment. Collins was indicted on one count of gross sexual assault, 17-A M.R.S.A. § 253 (Supp. 1995); one count of kidnapping, id. § 301 (1983); one count of aggravated assault, id. § 208 (1983); and one count of criminal threatening with a dangerous weapon, id. § 209 (1983). Collins entered pleas of guilty to aggravated assault and criminal threatening with a dangerous weapon. In exchange for Collins's guilty pleas the State dismissed the gross sexual misconduct and kidnapping charges. On the aggravated assault conviction Collins was sentenced to ten years in prison with all but six years suspended and four years probation.[1] The conditions of probation included, inter alia, Collins's participation in alcohol, substance abuse, and 1169 psychiatric counseling and treatment as recommended by the probation officer, and his refraining from the possession or use of intoxicating liquor[2]. During the time that Collins was reporting to his probation officer, the probation officer became aware of circumstances suggesting that Collins may have been using illegal substances or alcohol in violation of his conditions of probation. As a result of this suspicion, the probation officer asked Collins if he had been using drugs or alcohol the previous weekend. Collins smiled and replied no. Believing that Collins was lying, the probation officer asked Collins to take a urine test for drug analysis. Collins refused to take this test, stating that his conditions of probation did not require such a test. Collins's probation officer filed a motion to amend the conditions of probation, requesting that the court clarify that Collins shall abstain from the use and possession of alcohol and drugs and that it add the condition that Collins submit to random search and testing for the presence or use of alcohol and drugs[3]. Following a hearing the court granted the motion and amended the conditions of probation to include, in addition to the original conditions of probation, the requirements that Collins submit to random search and testing for alcohol, drugs, fire-arms and dangerous weapons, refrain from possession and use of unlawful drugs or intoxicating liquor, and sign releases required by his probation officer to monitor compliance with the terms of his probation. Right of Appeal Collins filed a notice of appeal pursuant to M.R.Crim.P. 37. M.R.Crim.P. 37(a) provides that "[w]henever a judgment, order or ruling of the Superior Court is by law reviewable by the Law Court, such review shall be by appeal." The State argues, preliminarily, that Collins lacks the statutory right to directly appeal to the Law Court an error in modifying a condition of probation. We disagree. "Appellate review in Maine is strictly statutory as the common law provided no appeal. The right of review by the Law Court is not a constitutional one and must, as a matter of jurisdictional concern, rest upon enabling legislation empowering the Court to act." Dow v. State, 275 A.2d 815, 818 (Me. 1971) (citations omitted). The statutory right of appeal from a revocation of probation decision is set forth in 17-A M.R.S.A. § 1207 (Supp.1995).[4] Although neither section 1207 nor any Maine statute specifically addresses a probationer's right of direct appeal of a court's decision to modify probation, 4 M.R.S.A. § 57 (1989) sets forth a general legislative grant of jurisdiction to the Law Court to entertain appeals by authorizing us to review "[c]ases on appeal from the Superior Court . . . questions of law arising on reports of cases . . . [and] cases presenting a question of law. . . ." See 2 Cluchey & Seitzinger, Maine Criminal Practice § 37.2 at VII-49 (1994). In Dow v. State, 275 A.2d 815, 824 (Me.1971), we concluded that 4 M.R.S.A. 1170 § 57 provides a right of appeal from an order revoking probation because a revocation of probation proceeding is a "`case presenting a question of law' within the meaning of 4 M.R.S.A. § 57 as amended by Public Laws, 1965, Chapter 356, § 1." Although 17-A M.R.S.A. § 1207, enacted subsequent to our decision in Dow, currently provides a specific statutory basis for the right of appeal in probation revocation proceedings, we do not read into this specific statutory grant a negative implication that there is no right of appeal pursuant to 4 M.R.S.A. § 57 from a decision modifying a condition of probation.[5] Given that a probation revocation decision can be appealed pursuant to 17-A M.R.S.A. § 1207, and that the original imposition of a condition of probation can be appealed either as part of a direct appeal from a judgment of conviction or as part of a sentence appeal, see State v. Coreau, 651 A.2d 319, 320-22 (Me. 1994) (in a sentence appeal defendant challenged a condition of his probation); State v. Plante, 623 A.2d 166, 167-68 (Me.1993) (in an appeal from a judgment of conviction defendant challenged court's order to pay restitution as a condition of his probation), it would be illogical to conclude that a decision to modify a condition of probation is not subject to appeal pursuant to 4 M.R.S.A. § 57.[6] Modification of Probation Conditions Collins contends that although 17-A M.R.S.A. § 1202(2) (Supp.1995)[7] requires a hearing on notice to the probationer if the probation officer wants to modify or add to the conditions of probation, the statutory provision fails to provide any standard that must be satisfied for a court to modify the conditions of probation. He contends that a change in circumstances or some action by the defendant must be shown before the court can modify a condition of probation. We disagree. Title 17-A M.R.S.A. § 1202 incorporates the standards set forth in 17-A M.R.S.A. §§ 1204(1) and 1204(2-A)(M)[8] (1983 & Supp. *1171 1995). When presented with a request to modify a condition of probation, the trial court must find that the requested condition would advance one of the purposes set forth in the statute. The court in the instant case concluded that Collins was already prohibited from the use of alcohol or drugs as a condition of his probation, and further found that providing Collins's probation officer with the authority to conduct random searches or tests would be a useful and reasonable means of monitoring Collins's compliance with the terms of his probation. The court's determination is not clearly erroneous. Collins's probation officer testified that he felt the conditions sought to be imposed were necessary because of Collins's past criminal history, which involves alcohol and substance abuse; that the court ordering substance abuse counseling omitted the testing requirement only because of an oversight; that these conditions are generally ordered; that the amended conditions were necessary to supervise Collins adequately; and that random search and testing acts as a deterrent to the prohibited use of alcohol and illegal substances. The entry is: Judgment affirmed. All concurring. NOTES [1] On the criminal threatening with a dangerous weapon conviction Collins was sentenced to five years in prison to run concurrently with his sentence on the aggravated assault conviction. [2] There is conflicting evidence in the record regarding whether Collins was ordered to refrain from possession or use of intoxicating liquor. On the preprinted page of the probation order, general conditions of probation are listed including the condition that Collins must refrain from the use or possession of alcohol. On the second page which lists special conditions of probation, the provision for refraining from alcohol is not checked off. Although Collins's probation officer thought this arguable inconsistency gave Collins an unclear message, he took the position that the conditions of probation included the requirement that Collins refrain from the use or possession of alcohol. If this ambiguity was the result of a clerical error which did not memorialize accurately the probation condition imposed by the judge orally from the bench, a transcript of the sentencing hearing could have resolved it. However, neither party provided that transcript. See M.R.Crim.P. 50. [3] This condition of probation requires that Collins shall "submit to random search and testing for (alcohol) (drugs) (firearms) [and] (dangerous weapons)." [4] 17-A M.R.S.A. § 1207 (Supp.1995) states: Review of a revocation of probation pursuant to section 1206 must be by appeal. . . . In a probation revocation proceeding in the Superior Court, a person whose probation is revoked may appeal, as under Title 15, section 2115 and the applicable Maine Rules of Criminal Procedure, to the Supreme Judicial Court, sitting as the Law Court. [5] The legislative history of 17-A M.R.S.A. § 1207 reveals that, as originally enacted, this section provided that review of a revocation of probation "shall be by post-conviction review as provided in Title 15, sections 2121 to 2132." P.L.1979, ch. 701, § 29. Section 1207, enacted to simplify the criminal procedure relating to probation, was one of the provisions of an amendment to a bill amending criminal laws and procedures. Comm.Amend. A to L.D.1925, No. S-456 (109th Legis.1980). In 1981 section 1207 was amended to provide that review of a revocation of probation "shall be by appeal." P.L.1981, ch. 238, § 9. The reference to "post-conviction review as provided in Title 15, sections 2121 to 2132" was deleted because it conflicted with another provision in the bill regarding 15 M.R.S.A. § 2121(2) that stated that a "post-sentencing proceeding" did not include revocation of probation. L.D. 1281 (110th Legis.1981). In 1993 section 1207 was again amended and provides the current version of this statute. P.L.1993, ch. 234, § 3. It was amended to ensure that the provisions of the Maine Rules of Criminal Procedure regarding appeals apply to an appeal from a revocation of probation in the District Court or in the Superior Court. L.D. 1162, Statement of Fact (116th Legis.1993). [6] In reaching this conclusion we recognize that in State v. Colson, 472 A.2d 1381, 1382 (Me. 1984), we held that post-conviction review was the exclusive method of review for orders resulting from hearings dealing with non-payment of fines. We further noted that "the statutory scheme of post-conviction review `shall provide a comprehensive and . . . exclusive method of review. . . of post-sentencing proceedings.'" Id. (quoting 15 M.R.S.A. § 2122 (Supp.1995)). Although a modification of probation hearing is a post-sentencing proceeding in the sense that it occurs subsequent to sentencing while the sentence is being served, this proceeding is not included in the definition of a post-sentencing proceeding set forth in the post-conviction review statute. Moreover, a revocation of probation has been specifically excluded from the definition of a post-sentencing proceeding. See 15 M.R.S.A. § 2121(2) (Supp.1995). Thus it would be anomalous to treat a modification of probation hearing as a post-sentencing proceeding governed by the statutory scheme of post-conviction review. [7] 17-A M.R.S.A. § 1202(2) (Supp.1995) states: During the period of probation specified in the sentence . . . and upon application of a person on probation, the person's probation officer, or upon its own motion, the court may, after a hearing upon notice to the probation officer and the person on probation, modify the requirements imposed, add further requirements authorized by section 1204, or relieve the person on probation of any requirement that, in its opinion, imposes on the person an unreasonable burden. [8] 17-A M.R.S.A. § 1204 (1983 & Supp.1995) states: 1. If the court imposes a section 1152 sentencing alternative which includes a period of probation, it shall attach such conditions of probation, as authorized by this section, as it deems to be reasonable and appropriate to assist the convicted person to lead a law-abiding life, provided that in every case it shall be a condition of probation that the convicted person refrain from criminal conduct. . . . . 2-A. As a condition of probation, the court in its sentence may require the convicted person: . . . . M. To satisfy any other conditions reasonably related to the rehabilitation of the convicted person or the public safety or security.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373084/	137 Ga. App. 192 (1976) 223 S.E.2d 239 JACKSON v. THE STATE. 51210. Court of Appeals of Georgia. Argued September 29, 1975. Decided January 6, 1976. Araguel & Sanders, Jerry D. Sanders, for appellant. Claude N. Morris, District Attorney, for appellee. STOLZ, Judge. This is an appeal from defendant Jackson's conviction of theft by conversion in failing to pay for construction materials used to build swimming pools for his customers. When the customers, prosecutors in this action, paid the defendant for their pools, they did so with the understanding that Jackson would pay for all labor and materials used. Jackson admits this and also admits that it is he, not his customers, who is indebted to the supplier. Yet defendant Jackson failed to pay for the materials used and consequently, the supplier placed a materialman's lien on the real estate of the two customers. 1. Appellant first enumerates as error the trial court's failure to dismiss the charges, claiming that theft by conversion under our statute (Code Ann. § 26-1808) is unconstitutional insofar as it provides for imprisonment for debt. This argument is controlled by Smith v. State, 229 Ga. 727 (194 SE2d 82), wherein the Supreme Court upheld the statute, interpreting it as creating a form of larceny after trust. This contention is therefore without merit. 2. The essence of this case is fraudulent intent, for that distinguishes theft by conversion from a simple breach of contract. The fact that the prosecutors may have a civil remedy under Code Ann. § 67-2001 (2) is of no consequence in this criminal action. Witness the availability of both civil and criminal actions for assault and battery, for wrongful death and homicide, and for trover and fraudulent conversion. The criminal statutes are not superfluous but rather, are designed to satisfy a 193 different purpose than restitution to the prosecutor, which is accomplished through a civil suit. The evidence in this case showed that the defendant contracted to build swimming pools at stipulated prices, that the contracts contemplated the defendant's being responsible for paying the costs of labor and materials, that in one case the defendant agreed in writing to be responsible for these costs, that the defendant had been fully paid by his customers, but had failed to pay his supplier in turn, and that the supplier placed liens on the customers' property because of the outstanding debt. The state cannot prove that a person's intent is fraudulent other than by inferences arising from his conduct. "[T]he proof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract." Baker v. State, 131 Ga. App. 48, 51 (205 SE2d 79). When the state offered the above evidence, the burden of proof shifted to the defendant to account for the funds by showing that they were used to pay for the materials or, at least, that their use was not fraudulent as to the prosecutors of this action. Moore v. State, 104 Ga. App. 93, 94 (121 SE2d 75); Baker v. State, supra. In a subsequent appeal of Baker v. State, 135 Ga. App. 500 (218 SE2d 171), we held that, where the state merely proved a breach of contract, this could not support a conviction for fraudulent conversion. The evidence in Baker was that the defendant was fully paid for construction of two houses, yet he completed neither because he had run into unforeseen difficulty with a subcontractor. Each of his customers was required to pay off materialman's liens on his property. Notably, in Baker, there was not the slightest inference that any amount of the money advanced was converted to his own use. Baker and the case sub judice differ factually. Here, defendant Jackson admitted that he received the money and knew that he was expected to pay the bills for supplies. He testified that he had not paid these bills, yet he had used the money, although he stated that he did not know what he had done with the funds. His wife corroborated the fact that he had received and spent the money advanced by his two customers. In light of this 194 evidence, an acquittal was not required. The jury resolved the factual issue of intent and the jury's verdict, supported as it is by evidence, should be upheld. Parrott v. State, 134 Ga. App. 160 (1) (214 SE2d 3). 3. The trial judge charged the jury, in part, that: "The Georgia Criminal Code, § 26-1808, provides that a person commits Theft by Conversion, when having lawfully obtained funds or property of another under an agreement or other known legal obligation to make a specified application of such funds, or specified disposition of such property, he knowingly converts the funds or property to his own use, in violation of such agreement or legal obligation. The section applies whether the application or disposition is to be made from the funds or property of another, or from the accused's own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own." The defendant had requested the court to charge "... that in order to convict the defendant of each of the charges in the indictment, you must find that an agreement and a known legal obligation existed for the defendant to make a specified application of certain funds." Since the given charge included the substance of the defendant's requested charge, it was not error for the court to fail to charge in the specified language requested. 4. The fourth enumeration of error is without merit. Judgment affirmed. Deen, P. J., Clark, Webb and Marshall, JJ., concur. Bell, C. J., Pannell, P. J., Quillian and Evans, JJ., dissent. EVANS, Judge., dissenting. The prosecutor in this case paid the defendant for the construction of a swimming pool, and defendant did not pay for the material and labor that went into the pool. Prosecutors proceeded under Code Ann. § 26-1808, and 195 secured a conviction. The prosecutor had ample remedy by requiring the defendant to make an affidavit as provided for in Code Ann. § 67-2001 (2), to the effect that defendant had been paid for all material and labor, before the owner made payment to the contractor. They ignored this remedy and placed the money in defendant's hands without requiring such affidavit. When the money was placed in defendant's hands, it became his money, albeit he owed for material and labor. Under these circumstances, if he failed to pay for them (which was proven to be the case), then both the owner and those who furnished material and labor had the right to proceed against him in a civil action. In my opinion, Code § 26-1808 is much too broad, in part, to be effective. This statute makes it a crime to fail to pay money over to others "under an agreement or other known legal obligation." (Emphasis supplied.) If the owners had attached a condition to the payment that he must use it to pay for labor and material, it would have been criminal not to do so. But the broad and general language "or other known obligation" in my opinion would make every employee, who receives a salary, a criminal if he did not use that salary for paying his "known legal obligation[s]." Suppose the bank pays its teller, and the teller fails to pay the rent and grocery bill? Here, he would be guilty because these are "known legal obligation[s]." Is it intended that the statute shall be that broad? Is every person guilty who does not pay his debts? This runs squarely counter to the constitutional provision as set forth in Code Ann. § 2-121: "There shall be no imprisonment for debt." It is said that Georgia was settled by persons who were in prison in England for debt, and were brought to these shores to start a new life where there would be no imprisonment for debt. Respectable historians dispute this slander on our heritage and contend that all of our forebears were noble characters, "poor but proud." Be that as it may, we do have the constitutional provision set forth above in our State Constitution. We are quite conversant with Smith v. State, 229 Ga. 196 727 (194 SE2d 82) wherein the Supreme Court held this statute to be constitutional, but it dealt only with that part of the statute where there was an agreement to use the funds for a specified purpose and not with that part where there was merely a known legal obligation, and consequently, any part of this decision which suggests the entire statute is constitutional is mere obiter dictum and not binding. Mobley v. Macon Nat. Bank, 42 Ga. App. 267 (1) (155 S.E. 778), affirmed in 174 Ga. 256 (162 S.E. 708). (The Supreme Court has not repealed the rule as to obiter dictum so far as we can learn.) Recently, the Supreme Court held in the case of Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839), that the rule as to our being governed by the oldest full bench decision has been repealed. While such well-established principles as "stare decisis" and "oldest unreversed full bench decisions of the Supreme Court" are now being held no longer binding, perhaps the Supreme Court might take a second look at another old and venerated principle, to wit, that the Supreme Court decisions take precedence over decisions of the Court of Appeals. If we can bury that principle in the same grave with "stare decisis" and "oldest unreversed full bench decision of the Supreme Court," we can all make a fresh start and begin the contest between the Supreme Court and the Court of Appeals on equal terms. Happy day! The Court of Appeals in Baker v. State, 131 Ga. App. 48 (205 SE2d 79) held contrary to this dissent, but it is not shown whether there was an agreement by the defendant to use the money for a specified purpose or simply a known legal obligation to do so; hence, we cannot say that there is any conflict between Baker, supra, and this dissent. But if there is a conflict, Baker v. State, should be overruled. To illustrate the ridiculous position this statute would place a builder in, suppose his contract is to build a pool for $10,000, and at the end he finds himself owing $7,500 for labor and $7,500 for material, a total of $15,000, or $5,000 more than the owner pays to him. Because he made an error in judgment in placing his bid at too low a figure, is he to be prosecuted and placed in jail? Suppose he pays out the entire $10,000 to the laborers and *197 materialmen, but he still lacks $5,000 of making full payment? The statute (Code § 26-1808) would nail him to the wall because when he uses the money as his own (conversion), and makes his own election as to how much he will pay on the debt for material and how much he will pay on the debt for labor, then this would certainly fit that language in the statute which provides "... knowingly converts the funds or property to his own use ..." So long as he exercises the right to determine how much he will pay Peter and how much he will pay Paul, he has converted it to his own use, and thereafter pays it out as his own money and as he decides to pay it, and to whom and in what amounts he decides to pay it. Suppose the bank pays its teller $750 for one month's work, and the teller owes $750 in back rent, $750 in back grocery bills, and $750 to a friend who loaned it to him so he could go to see part of the World Series baseball games. He cannot pay all of them they are all "known legal obligations" (provided he confided in his employer as to his situation) and the poor fellow would have to go to jail because he did not use the $750 to pay the total of $2,250 that were known legal obligations. I repeat that the owner of the pool had but to require an affidavit before they paid one red cent to the builder, which affidavit stated that all labor and material had been paid for. Then the owner would be scot-free regardless of whether the affidavit was true or false. The owner had a perfect remedy under Code Ann. § 62-2001 (2), and they should not be allowed to prosecute defendant because the owner would not use his legal remedy. I am authorized to state that Chief Judge Bell, Presiding Judge Pannell, and Judge Quillian concur in this dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373085/	535 P.2d 1232 (1975) STATE of Utah, Plaintiff and Respondent, v. Larry D. SCHIEVING, Defendant and Appellant. No. 13930. Supreme Court of Utah. May 27, 1975. David Paul White, Salt Lake City, for defendant and appellant. Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent. TUCKETT, Justice: Defendant was found guilty of mishandling of public monies, a felony under the laws of this State. Defendant appealed from his conviction requesting this court to reverse or, in the alternative, to grant him a new trial. Defendant was employed in the Traffic Department, Violations Division, of Salt Lake City, as an assistant director of the department. One of his duties was the handling of bail money and bail receipts from the county jail. On January 7, 1974, two copies of a bail receipt and the corresponding *1233 money in the sum of $170 were discovered missing by the head of the department. Defendant was subsequently charged with mishandling the missing $170. Defendant claims that the trial court was guilty of error in admitting evidence of another shortage within the Traffic Violations Bureau. The general rule is that in a criminal case evidence which shows or tends to show that the defendant had committed another crime in addition to that for which he is on trial is inadmissible. However, an exception to the rule is that evidence of another crime is admissible when it tends to establish motive; intent; absence of mistake or accident; or to show a common scheme or plan embracing commission of similar crimes so related to each other that the proof of one tends to establish the crime for which the defendant is on trial. In this case evidence of another shortage within the defendant's department was not prejudicial, and this is especially true in view of the fact that defendant testified as to the other shortage, and it was his testimony that introduced the subject into the trial.[1] As a second claim of error, the defendant urges that admission of evidence tending to show that he was heavily indebted and that his financial condition was poor was prejudicial. Evidence was admitted by the court that two garnishments had been issued and served against the city which attached the defendant's salary. Evidence of the defendant's indebtedness and financial condition tend to establish material matters concerning motive and intent. A showing that a defendant is in straitened circumstances and that he owes money tends to show a motive for embezzlement.[2] Likewise a similar showing would tend to show the defendant's motive for the misapplication of public monies. The defendant assigns other errors which we deem to be without merit. The conviction of the defendant is supported by ample evidence, and we find no error which would justify a reversal or a new trial. The verdict and judgment of the court below are affirmed. HENRIOD, C.J., and CROCKETT, ELLETT and MAUGHAN, JJ., concur. NOTES [1] State v. Harries, 118 Utah 260, 221 P.2d 605; State v. Christiansen, 98 Utah 278, 94 P.2d 472; State v. Lopez, 22 Utah 2d 257, 451 P.2d 772. [2] Dimmick v. United States, 70 C.C.A. 141, 135 F. 257; Wigmore on Evidence, 3d Ed., Vol. II, Sec. 392.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373083/	535 P.2d 1244 (1975) STATE of Utah, In the Interest of PITTS, Erika R. and Pitts, Vallarey L., persons under 18 years of age, Gloria Gandy, Appellant. No. 13882. Supreme Court of Utah. May 14, 1975. 1245 Gordon F. Esplin, of Salt Lake County Bar Legal Service, Salt Lake City, for appellant. Vernon B. Romney, Atty. Gen., Frank V. Nelson, Asst. Atty. Gen., Salt Lake City, for the State. HENRIOD, Chief Justice: Appeal from the denial of a motion to vacate a juvenile court order permanently depriving the parents of custody and terminating all parental relationship of and to their two minor infant girl children, and placing them with an agency for adoption. It is adjudged that said order (July 16, 1974) be vacated as prayed. This case is here solely on the record before us having to do only with the motion to vacate, the evidence adduced at the hearing thereon, the order denying it, October 17, 1974, and the order of permanent deprivation, July 16, 1974. The two orders above followed the delivery of the children by the paternal grandmother, Hattie Pitts, to a Welfare Department "shelter" on or about November 9, 1973, (because, as the record reflects, she was financially incapable of supporting them). One Carlson, an employee of the State Division of Family Services, testified that he filed a petition on November 30, 1973 (which is not in the record before us), which contained allegations that the children had been left with an acquaintance at a Baywood Hotel, where some days later the room caught fire, and the children thereupon were delivered to Hattie;[1] that the whereabouts of the parents were unknown, and that the parents had failed to provide adequate support and supervision for the children. This petition was heard on January 8, 1974. Prior thereto, said Carlson, he had 1) "checked with the postoffice to see if the father or mother were listed as receiving mail in the Salt Lake Valley," receiving a "No" answer. He then checked the Baywood Hotel (after the fire that apparently caused a transfer of the children to Hattie), to see if the parents were getting mail there, then checked with the local power company to see if they were customers, being told they were not, after which he filed in the clerk's office, the petition with an affidavit for publication 1246 of notice thereof, and that's all he did. One Meyers, who is completely unidentified in the record, said he did two things after Carlson had made inquiries, which were done in January or February, so that they were done long after the petition was filed on November 30, 1974, and hence of no probative value whatever in connection with "due diligence" in locating the parents.[2] A Mrs. Lu Jean Smith, D.F.S. worker, testified that she knew Hattie when the latter brought the children to the shelter and said she didn't know where the parents were. She checked with the baby sitter who had been at the Baywood Hotel, who didn't know where they were either. Betty Mattson, another D.F.S. employee, knew the children's mother. This employee said she filed a Petition for Permanent Deprivation of the parental rights on May 9, 1974, since "the parents had not made contact" with the children "since November 9, 1973 ... a period of more than six months"[3] and "it appeared to me that neither parent was going to return at that point." She also said she signed an Affidavit for Publication of Notice. Finally, after the July 16, 1974, hearing and order of Permanent Deprivation, Miss Mattson had contact with the mother between August 5 and 10, 1974, when the latter, after returning to Salt Lake, had called upon the former inquiring as to the whereabouts of her children, when Mattson told the mother in no uncertain terms that "she had been permanently deprived" of the children and that "the children were being placed for adoption, and that she could not see them," nor would Mattson "tell her the foster home at which they were placed" and that she (the mother) seemed upset. Based on the evidence as recited above, the juvenile court made a finding of fact that "The efforts of the ... Division of Family Services to locate an address for the parents were diligent pursuant to Section 55-10-88, Utah Code Annotated 1953." It is suggested that the evidence recited above clearly indicates that there was no "diligent inquiry" made and that this matter is dispositive in favor of the mother and father of these children, if, for no other reason than that there is no evidence whatsoever, of any effort to locate the father except for an alleged telephone check with the postoffice, power company, and a hotel where there is no evidence that either parent resided, and a doubtful Publication of Notice, so far as this record is concerned, there having been no inquiry of any persons or relatives or anything else with respect to the children's father. In 1247 addition to and a further weakening of such weakness of inquiry, the following uncontradicted facts are reflected in the record to enhance the ridiculosity of permanently stripping parents of their parental rights, which means forever, gentle reader: Gloria Gandy, is the mother of the children, Lawrence Pitts is the father, and his mother, Hattie Pitts, is the paternal grandmother. Clara Gandy is the maternal grandmother. In October or November, 1973, Gloria saw Hattie to see if she would take care of the children for awhile, while she (Gloria) was gone. She did not leave them at that time with Hattie for some undisclosed reason, but left them with Wanda Brown, a friend, who was happy to have them and wanted to keep them until she got back. Gloria told her to keep them a few days, then take them to Hattie. She went to Tampa, Florida, was there with the children's father until the following July, during which time she tried to make contact with the children. She called her mother several times and wrote to Hattie, with no reply. She got in touch with her mother, through her sister, who answered the phone, about April or May, near her birthday. She gave her sister her address and asked how the kids were. She kept writing to Hattie, with no response. When she came back she called on Hattie but was told the latter had moved. Then she saw her mother who told her the children were up for adoption. She called Betty Mattson who told her she couldn't see the children nor would she be told where they were. At this juncture she hired a lawyer; she volunteered that: "I love my children very much and really do care for them... . I just had to leave town but was planning to send for them. I didn't think anything like this would happen. No one contacted me about the proceedings with the Court." She talked to her mother the end of July or in August, 1974. On cross-examination she said she went to Tampa because she "was in trouble with the law." No reason therefor was requested and none was volunteered. She said she didn't expect Hattie to take care of the children, but knew she would manage, and that she didn't think she'd be gone away so long. Asked if the postoffice returned any letters she sent to Hattie, she said "no, why should they?" which makes sense. Gloria's mother, Clara Gandy, said the Division of Family Services did not contact her at any time. She didn't contact Gloria until July or August. She said Gloria contacted her other daughter by phone, that she, Clara, tried unsuccessfully to contact Hattie until August and was told that she took the children to the Welfare. She said no one contacted her by mail, phone or personally to ask where Gloria was. There is no evidence that the other daughter ever was contacted. She said her daughter gave her Gloria's address around March or April, "after the kids' birthday." Counsel for the court, at some length, and in a somewhat uncavalier manner, elicited an answer from Hattie to the effect she didn't really know and was confused. Gloria, on the sideline, volunteered "Mom, I called you in March. It was right after my birthday." Counsel for the court responded by saying, "Will you shut up and let her answer the question?" evincing some sort of inverted saintly effort to get at the truth, it would seem. The judge backed him up with an admonishment. The only substantial or effective impeachment as to the facts were on cross-examination of the grandma, Clara, who not only confessed her confusion as to what appeared to be a rather immaterial fact, but who obviously displayed considerable affection for her daughter and grandchildren. The facts abstracted above presented by Gloria are uncontroverted save as mentioned above. The state presented only facts relating to time Gloria was absent, 1248 and what some aides of the Division of Family Service did that was claimed to constitute "diligent inquiry." It is significant that the children's grandmother, Clara Gandy, was a resident, knew Gloria's address, as did Gloria's sister. More significant is what the State did not do. It did not do anything showing any diligent inquiry with respect to the children's father, and so far as this record is concerned apparently did not even inquire of his own mother where he was. It did not contact Clara, made no phone calls to any of what amounted to only two Gandys in the phone book, did not bother to examine the 1974 directory that presumably had all the names and addresses of all the residents in the Salt Lake area, and if it did examine such directory it failed to find the name and address of Mrs. Clara Gandy plainly printed therein. The weekly newspaper in which it published notice of hearing, had a comparatively small circulation in Salt Lake County, which likely may not have had as wide a potential for notification and which, in a case like this, along with other claimed acts of diligence, would seem not to constitute reasonable diligence in alerting someone, nor the most "diligent" means of notice, since it is fairly common knowledge that its circulation is about one per cent of that of the largest metropolitan daily paper published in Utah, where the chance of reaching the parents here, or interested relatives who might be alerted, is one hundred to one. If the people involved in this case had shown as much compassion for the parent-child relationship, and less for split-second speed in procedure designed to accommodate the baby market that flourishes in this country, whether black, gray, red or statutory, the State, with its facilities, certainly could have used better and faster means for finding the whereabouts of this mother. This writer is impressed with a concession made by counsel for respondent, nonetheless, to the effect that: Respondent cannot help but agree with appellant's contention that the deprivation of parental rights is a drastic action which must be handled through in personum procedures. Children are not realty, and rights pertaining to them must be handled with care and proper procedure. Appellant, however, wants this Court to believe that such is an absolute standard which has very few exceptions, if at all. We believe such language comes close to our thinking to the effect that a child should not be taken from its parents save by clear and convincing evidence of intention to give up parental rights, something almost akin to proof beyond a reasonable doubt. The respondent, having made the quoted pronouncement must have difficulty, particularly with that part about realty, when it cites Redwood v. Kimball,[4] to support the chopping off of parents' rights, since that was a suit to quiet title to realty. This provokes some interesting language of the U.S. Supreme Court in Walker v. Hutchinson City:[5] "It is common knowledge that mere newspaper publication rarely informs the landowner of proceedings against the property," and "In too many instances notice by publication is no notice at all." Certainly this language is quite apt in this case where a paper's circulation is so small as to be about one per cent of that which would be provided in a paper whose circulation is a hundred times as great in circulation, all for a very few dollars more. Respondent's citing of Lloyd v. Third District Court,[6] also has its differences between the instant case, since it is a divorce action with the so-called marital res extant in this state. It is quite understandable *1249 that married people who have no other kinship, and who are adults, should be amenable to service by publication, a lot more and perhaps with a little less "diligent inquiry" than where a blood relationship is involved, not the case two adults, a man and wife, but between an adult and a minor. Some social service workers in their zeal, may be naturally the victims of some sort of biological myopia, or are unenlightened or calloused as to the depth of motherly affection, sometimes forgetting that blood is thicker than printer's ink, that absence makes the heart grow fonder, and that instinct itself waters down the oft-repeated, but as often trited aphorism that the welfare of the child is the only concern of the judiciary. They sometimes forget that even though a mother disciplines her child by administering a spanking, the one spanked almost always seeks asylum and confort in the very arms that administered the discipline. We believe that the evidence in this case is almost a complete stranger to and hardly equates with that high standard of care and diligence necessary in seeking out parents when troubled human waters brew. Any fracture of such relationship should be condoned only by clear evidence of the highest quality. We are of the opinion and hold that the proof here does violence to the far reaching order of permanent deprivation of parental rights, amounting to forever, which is a long, long time. ELLETT, TUCKETT and MAUGHAN, JJ., concur. CROCKETT, Justice (concurring separately). In view of the fact that the majority of the court are of the opinion that the order should be set aside, I voice no objection thereto. This, because I assume that opens the way for proceedings on the merits as to what should be done about these children. I realize that the requirement of diligent search for a parent in such situations is not without difficulties. Nevertheless there are circumstances where the duly authorized publication "in a newspaper having general circulation in the county in which the action is pending" serves a necessary and useful purpose. It is authorized by our Rule 4(f)(1), U.R.C.P., and had since time immemorial been recognized as valid by our statutory, (see former Section 104-5-12, U.C.A. 1943), and by our decisional law, see Ricks v. Wade, 97 Utah 402, 93 P.2d 479; and 126 A.L.R. 664. It is worthy of comment here that Rule 4(f)(1), just referred to, was amended on June 26, 1972, to provide that if "... the court determines that service by mail is just as likely to give actual notice as service by publication, the court may order that service ..." may be made by mail. NOTES [1] Who, as stated above, delivered them to the shelter. [2] We list his efforts here, for informational purposes only and to show not "diligent inquiry" but the lack of "diligent inquiry," and to show that even though he may have made the effort before the petition was filed, in no way would it have been the kind of diligence required to strip away from a mother and father all parental rights. He went to Hattie's home, and was told that she did not know where Gloria, the mother of the children, was, but there is no evidence whatever, to indicate that be bothered to ask where Hattie's own son, the father of the children, was. Then he looked in the phone book to see if he could locate Clara Gandy, the maternal grandmother. He said "I found four Gandys listed, none of which were Mrs. Gandy." There is nothing in the record to indicate he called any of those listed, but it is highly significant that he said one was a wrecking company. Two of the three numbers of persons listed represented the same phone, and the same address, and referred to a husband and wife. A bit of "diligent inquiry" would have shown this fact, had he looked in Polks 1974 Salt Lake City Suburban Directory on page 312. Such bit of "diligent inquiry" would have revealed in the same directory on the same page, the listing of a Mrs. Clara Gandy, the name of the very person he was seeking. [3] It was six months to the day, which suggests an unwarranted and premature effort to place these children out for adoption before the parents' return (which the petition she filed called for), and the resulting default judgment of July 16, 1974, ordered placement of the children with D.F.S. "for placement in a suitable adoptive home." [4] 20 Utah 2d 113, 433 P.2d 1010 (1967). [5] 352 U.S. 112, at 116-17, 77 S. Ct. 200, at 202-203, 1 L. Ed. 2d 178. [6] 27 Utah 2d 322, 495 P.2d 1262 (1972).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373090/	137 Ga. App. 13 (1975) 223 S.E.2d 27 McNAIR v. JONES. 51485. Court of Appeals of Georgia. Argued November 5, 1975. Decided December 5, 1975. Allison W. Davidson, for appellant. Page, Scrantom, Harris, McGlamry & Chapman, John T. Laney, III, Vincent P. McCauley, for appellee. QUILLIAN, Judge. Plaintiff brought an action for damages contending that he sustained injuries from wrecking a motorcycle as a result of being pursued by defendant's dog. Defendant and plaintiff moved for summary judgment. The trial judge sustained the defendant's motion and denied that of the plaintiff. Appeal was taken to this court. Held: 1. The plaintiff contends "if domestic animals are wrongfully in the place where they do the mischief the owner is liable though he had no notice that they were accustomed to do so before," citing Wright v. Turner, 35 Ga. App. 241 (132 S.E. 650); Reed v. Southern Exp. Co., 95 Ga. 108 (22 S.E. 133); Browder-Manget Co. v. Calhoun Brick Co., 138 Ga. 277 (75 S.E. 243); Caldwell v. Gregory, 120 Ga. App. 536 (171 SE2d 571); Sullivan v. Goss, 133 14 Ga. App. 217 (210 SE2d 366). In a whole court opinion we declined to apply this rule to cases involving the liability of the owner of a dog. Jett v. Norris, 133 Ga. App. 596 (211 SE2d 639), (cert. denied). Accord: Connell v. Bland, 122 Ga. App. 507 (177 SE2d 833). See Sellers v. Woods, 129 Ga. App. 383 (199 SE2d 555). The owner is not responsible for the acts of his dog where there is a lack of scienter. 2. Did the proof offered in this case show that the defendant lacked knowledge of the propensities of his dog to chase vehicles (alleged to be the cause of the plaintiff's injuries)? The affidavit of the defendant stated: "That at no time prior to said incident had she seen, heard, or had knowledge of her dog's chasing any motorized vehicle." The plaintiff by deposition introduced the following proof. He stated that he knew the defendant and had visited her home. He had seen the dog and "I visited them before and before they let you in the house they have to lock him in a room. I have been shooting basketball at some of the neighbors' houses and he gets loose and everybody runs." He didn't remember who locked the dog in the room but "they kept him chained up all the time most the time ... in the backyard." He then explained that on one occasion while playing basketball at a neighbor's house the dog got loose and the plaintiff ran because he heard that one of his friends had been chased before. That on this occasion the defendant's child came and got the dog. This evidence failed to show defendant's knowledge of acts by the dog related to those which caused the motorcycle wreck. "`It is not enough ... that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.'" Carter v. Ide, 125 Ga. App. 557, 558 (188 SE2d 275). Accord: McCree v. Burks, 129 Ga. App. 678, 680 (200 SE2d 491). In view of the defendant's positive statement of lack of knowledge, the plaintiff was faced with the necessity of rebutting same. On his failure to do so, summary judgment was properly granted for the defendant. Judgment affirmed. Pannell, P. J., and Clark, J., 15 concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373120/	236 Ga. 308 (1976) 223 S.E.2d 689 STILTZ v. STILTZ. 30654. Supreme Court of Georgia. Submitted January 9, 1976. Decided February 17, 1976. Smith, Robertson & Sparrow, George T. Smith, for appellant. Custer, Smith & Manning, Lawrence Custer, for appellee. INGRAM, Justice. Appellant filed the present action in Cobb Superior Court seeking a reduction in his periodic alimony payments to appellee, his former wife. They were divorced in 1965 and the decree entered at that time (based on an agreement between the parties) required him to pay $300 per month alimony and the sum of $175 per month child support. In a 1967 modification case filed by appellant, the jury reduced his alimony payments to $150 per month but left undisturbed the amount of the monthly child support. Appellant no longer pays child support as the only child of the parties has reached the age of majority and is self-supporting. Thus, the present action sought only to reduce the present alimony payments of $150 a month to the former wife who has not remarried and was in ill health and unemployed at the time of the trial court's consideration of the case. 309 Both parties agreed for the trial judge to hear and determine this case without the intervention of a jury. The trial judge, after considering evidence and briefs of law submitted on behalf of both parties, entered an order, with findings of fact and conclusions of law, denying the prayers for modification. The former husband appeals and asserts three reasons for his contention that the trial court erred in not reducing his monthly alimony payments to his former wife. Appellant first argues that under the law (Code Ann. § 30-220) he is required to show an adverse change in his income and financial status only by "satisfactory proof" rather than by a "preponderance of the evidence" which he contends the trial judge erroneously applied to the evidence in this case. Appellant bases this argument on that part of the statute which says that after a hearing, "the judge . . . may modify and revise the previous judgment . . . in accordance with the changed income and financial status of the husband, if such a change . . . is satisfactorily proved, . . ." Did the trial judge err in requiring appellant to prove his case by a preponderance of the evidence? We think not. The same general rules of procedure applicable to divorce cases apply to proceedings brought under Code Ann. § 30-220 for revision of permanent alimony judgments. The language of the statute relied on by appellant does not reduce the required burden of proof to less than a preponderance of the evidence. Instead, we think it is implicit in the statute that the petitioner must "satisfactorily prove" his or her case by a preponderance of the evidence. Otherwise, a solemn judgment previously entered by the court could be altered by proof comprised of less than the greater weight of the evidence. We are not persuaded the General Assembly intended a lesser standard of proof to modify a judgment than the standard required to obtain it in the first instance. Under our view of the statute, the trial court correctly ruled that appellant had the burden of satisfactorily proving his case by a preponderance of the evidence. Appellant also argues the trial court erred in taking into consideration the appellee's financial needs because, under Code Ann. § 30-221, the only issue before the court 310 was whether there had been a substantial change in appellant's ability to pay the monthly alimony. See Schuster v. Schuster, 221 Ga. 614, 615 (146 SE2d 636) (1966). In McBrayer v. McBrayer, 227 Ga. 224 (2) (179 SE2d 772) (1971), this court cited Schuster, supra, and Holland v. Holland, 222 Ga. 467, 468 (150 SE2d 673) (1966) in stating the issue as presented by appellant. However, the court in McBrayer, went on to say that "evidence as to increased earnings of the wife did not authorize a change in the amount of alimony . . . in the absence of evidence as to a change in the income or financial status of the husband." Thus it is clear that unless there is evidence of a substantial change in the husband's ability to pay, evidence of the wife's income and financial status becomes immaterial. But the statute (Code Ann. § 30-220) itself provides that "testimony may be given and evidence introduced relative to the income and financial status of the wife." Consequently, after appellant introduced evidence to show a substantial change in his income and financial status, the trial court correctly received and considered evidence of the wife's income and financial status. No error appears here. We consider next appellant's contention that the trial court erred in determining that appellant had abandoned gainful employment in order to circumvent his obligation to pay the monthly alimony to appellee and therefore was not entitled to relief. The trial court did rule, in effect, that appellant's decision to enroll in a seminary to prepare himself for the ministry could not be used to justify his loss of income necessary to pay alimony when he was capable of earning a sufficient sum to pay it. Appellant has previously been employed in the aerospace and mobile home industries but was unemployed at the time of the hearing when he revealed his plans to enter the ministry. This presents a difficult situation because appellant feels he cannot pursue his plans for the ministry and also earn a sufficient sum of money to sustain himself and pay $150 a month alimony to his former wife at the same time. However, we have no choice in the matter as we have no authority to relieve appellant of his obligations even for the worthy purpose of entering the ministry. He took on the obligation to *311 support his wife beyond their marriage and must continue to honor that obligation under the trial court's judgment in this case. We find no merit in this contention by appellant. Cf. Hamner v. Hamner, 223 Ga. 463 (156 SE2d 19) (1967). The evidence authorized the trial court to find that appellant was mentally and physically capable of earning sufficient monies to make the alimony payments to the appellee and that there had not been a substantial change in his ability to pay the alimony. Since the evidence does not demand a finding in favor of appellant, we cannot hold the trial judge, as the arbiter of law and fact, abused his discretion in this case. See McCoy v. Pinnell, 231 Ga. 648 (203 SE2d 529) (1974). Also, see Knox v. Knox, 225 Ga. 481 (1) (169 SE2d 805) (1969). Judgment affirmed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373127/	217 Kan. 251 (1975) 535 P.2d 881 STATE OF KANSAS, Appellee, v. JULIAN BEY, Appellant. No. 47,731 Supreme Court of Kansas. Opinion filed May 10, 1975. Michael Lerner, of Barnett & Lerner, of Kansas City, argued the cause, and was on the brief for the appellant. Nick A. Tomasic, district attorney, argued the cause, and Curt T. Schneider, attorney general, was with him on the brief for the appellee. The opinion of the court was delivered by SCHROEDER, J.: This is an appeal in a criminal action by Julian Bey (defendant-appellant) from a conviction of first degree murder (K.S.A. 21-3401) while perpetrating the crime of aggravated robbery (K.S.A. 21-3427). The questions raised on appeal pertain to: (1) the use of transcript testimony of a prosecution witness who testified at the preliminary hearing but was unavailable to testify in person at the trial; (2) the lineup identification procedures; and (3) the sufficiency of the evidence to support the appellant's conviction under the felony-murder rule. Testimony received at Bey's trial disclosed that on September 11, 1973, John Lomax, Wilbert Etier and appellant drove to the offices of the Prolerized Steel Corporation in Kansas City, Kansas, to commit a robbery. Lomax and Bey entered the office building while Etier waited behind the wheel of the get-away car. As Bey and Lomax entered the office a young man, Roy Lake, ran from the building and shouted that a robbery was taking place. Etier emerged from the driver's side of the waiting automobile and fired his rifle at Lake, resulting in his death. The appellant was charged and tried for the robbery and the killing. Two men working in the Prolerized Steel office at the time of the robbery, Mr. Richard Glasscock and Mr. Rudy Roth, identified the appellant as one of the robbers. Lomax admitted participating in the robbery and testified for the prosecution. Etier was killed by unknown persons prior to the trial of Bey. According ao Lomax's testimony, Lomax, Julian Bey and Wilbert Etier drove in a blue Pontiac to the Prolerized Steel plant on the morning of September 11, 1973. After arriving Lomax entered the business office and requested a job application but was told they were not hiring. 253 Lomax testified he started to leave the office when the appellant entered the office. The appellant was armed with a shotgun; Lomax had a .32 chrome revolver; and Etier, who stayed with the car, had a rifle and a pistol. Lomax further stated as the appellant was about to enter the office, there was a young man standing just inside the door. When the appellant entered the young man ran out the door. The appellant told Lomax to "stop him," but Lomax just let him go. Once inside Lomax and the appellant ordered the men in the office to lie down and then took money from a drawer and the safe, a total of approximately $500. When the robbery was completed Lomax and the appellant returned to the car and departed with Etier driving. According to Lomax, as the three were riding in the car, Etier asked why Lomax and the appellant had "let the dude run?", and Etier then stated that he "had to do away with him." Lomax testified that he neither saw nor heard the shooting. Additional evidence before the jury included a reading of the transcript of one Bobby Arnold's testimony from the preliminary hearing. Arnold was an independent truck driver who was present outside Prolerized Steel's business office at the time of the robbery. He testified that he saw a blue Pontiac parked by the office and observed a white boy walking toward the car when two black men got out of the Pontiac and walked toward the office with the boy. He next saw the boy break away from the two men and start running in Arnold's direction shouting "Holdup run". The two men continued on into the office building. Arnold then saw another black person get out from the driver's side of the Pontiac and fire several shots at the running boy. Predicated upon the evidence presented the jury found Bey guilty of first degree murder under the felony-murder rule, and he was sentenced to life imprisonment. Bey moved for a new trial. That motion was overruled by the trial court and Bey has duly perfected this appeal. The appellant contends the trial court erred in refusing to exclude the reading of the preliminary hearing testimony of Bobby Arnold because Arnold was not properly served with a subpoena for appearance at the trial, and that a diligent effort was not made to secure his appearance. The provisions of K.S.A. 60-460 (c) (2) permit testimony of a witness given at a preliminary examination to be used at the trial 254 only if it is shown that the witness is unavailable to testify personally. K.S.A. 60-459 (g) provides in part that: "`Unavailable as a witness' includes situations where the witness is ... (5) absent from the place of hearing because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts." This court has considered the admissibility of the testimony of an absent witness given at a preliminary hearing, or at a former trial, on many occasions. In State v. Washington, 206 Kan. 336, 479 P.2d 833, the rule is stated as follows: "Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a `good faith effort' to obtain the witness's presence at trial (Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459 [g])." (p. 338.) (See also State v. Kirk, 211 Kan. 165, 505 P.2d 619; State v. Calvert, 211 Kan. 174, 505 P.2d 1110; State v. Ford, 210 Kan. 491, 502 P.2d 786.) This court has not attempted to define the term "reasonable diligence" with the preciseness that other legal phrases have been characterized. Analysis of our previous decisions establishes that each case turns on its own facts and circumstances to determine the availability of a witness. (State v. Kirk, supra.) To support its motion requesting the trial court to authorize the reading of the transcribed testimony of Arnold at the preliminary hearing to the jury, the state called Joseph A. Horvat, an investigator in the Wyandotte County district attorney's office, to testify concerning efforts he made to contact Arnold for the trial. According to Horvat following the preliminary hearing, he and the district attorney talked with Arnold to verify the fact that he would be available to testify at the trial. Arnold was cooperative, and gave his street address in Marshall, Missouri, and his phone number. In preparing for the trial the investigator issued a subpoena to Arnold at the given address on January 8 (trial commenced on January 14). After learning the subpoena was not served, the investigator 255 attempted to telephone Arnold at the number given but the line had been disconnected. An officer of the Marshall, Missouri, police department was then contacted and asked for assistance in locating Arnold. The Marshall police officer learned that Arnold no longer lived in Marshall but had moved to Fair Play, Missouri, which is located in Polk County. Through directory assistance the investigator obtained a phone number for Arnold, but he was unable to get an answer when he called, so the aid of the Polk County sheriff's office was solicited. A deputy from the Polk County sheriff's office drove to Arnold's residence on several occasions over a five day period. He left a note on one occasion directing Arnold to contact the Wyandotte County district attorney or the sheriff's office, and the note apparently was picked up but Arnold did not contact any of the authorities. The Polk County deputy also made numerous telephone calls to Arnold's house but they were never answered. The investigator also sought assistance from two friends of Arnold's who worked at Prolerized Steel, Arnold's brother and nephew, and others. The investigator also stated a subpoena was not issued to the sheriff of Polk County to be served upon Arnold. The appellant objected to the reading of the transcript into evidence on the grounds that the legal requirements for showing unavailability of a witness had not be fulfilled, no subpoena having been issued to Mr. Arnold at his Polk County address. The appellant was represented at the preliminary hearing by counsel and Arnold was subjected to some cross-examination at that time. In sustaining the state's motion, the trial court said: "Well, I believe I would have to find that the County Attorney has made a diligent effort to locate this witness. I think it would probably have been a useless gesture to issue a subpoena to another county to be served when the sheriff down there had been unable to locate or contact the man at all." In our opinion the trial court was correct in concluding that the issuance of a subpoena to Arnold's Polk County address would have been a useless act in view of the efforts made by the Polk County sheriff's office. Though the state might well have allowed itself more time in which to serve Arnold, Arnold had given the impression of being a willing and cooperative witness and there was no reason to anticipate difficulty in serving him. We think 256 the evidence was sufficient to establish that reasonable diligence had been used by the state in seeking to ascertain the whereabouts of Arnold and to procure his attendance at the trial. The appellant next argues that his rights to due process were violated by pretrial identification procedures with respect to Rudy Roth, who was employed and present at the office of Prolerized Steel at the time of the robbery. Four days subsequent to the robbery a lineup comprised of four suspects, including the appellant, was conducted by the Kansas City Police Department and witnessed by Mr. Roth. Roth testified that at this lineup the suspects were requested to speak and make some movement. After viewing the lineup, Roth was unable to positively identify any of the suspects as one of the robbers, though he testified at the trial that he thought he could identify the appellant. Five days later a second lineup was conducted and Roth was present with Mr. Glasscock, who had been present in the office at the time of the robbery, but had not been present at the first lineup. On this occasion, Roth was able to positively identify the appellant as one of the holdup men, as was Glasscock. Roth could not account for the fact he was able to identify the appellant during the second lineup but was unable to do so on the first occasion. Roth could not recall whether or not any individuals appearing in the second lineup, other than the appellant, had also appeared in the first, though to the best of his knowledge the appellant was the only individual to appear in both. He testified that when he viewed the second lineup he remembered having seen the appellant in the previous lineup. It should be noted the appellant was represented by counsel at both lineups in accordance with United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. Evidence taken by the trial court on the appellant's motion to suppress the lineup testimony of Roth was not in the presence of the jury. The trial court ruled Roth's testimony concerning the second lineup and his in-court identification of the appellant should be presented to the jury. The appellant argues the appearance of a single familiar face at the second lineup is a violation of constitutionally fair lineup standards as enunciated in the cases of Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); Foster v. California, 257 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1969); and Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). In Stovall, supra, it was recognized that, judged by the "totality of the circumstances," the conduct of identification procedures may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be a denial of due process of law. In Biggers, supra the central question before the court was whether under the "totality of the circumstances" the identification was reliable even though the confrontation procedure was suggestive, and it was stated that factors to be considered in evaluating the likelihood of misidentification include: "... [T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation...." (pp. 199, 200.) In Stovall and Biggers the court held, upon facts inapposite to those in the case at bar, that due process had not been violated. In Foster the defendant was placed in a lineup in which he stood out from the other men. There was a contrast by reason of his height and by the fact that he was wearing a jacket similar to that worn by the robber. When this did not lead to an identification the police permitted a one-to-one confrontation between the defendant and the sole witness to the crime. The witness' identification remained tentative and a few days later a second lineup was arranged in which defendant was the only member who had appeared in the first lineup. This finally produced a positive identification. The court, in refusing to hold that the lineup procedure constituted harmless error, stated: "The suggestive elements in this identification procedure made it all but inevitable that David [the witness] would identify petitioner whether or not he was in fact `the man.' In effect, the police repeatedly said to the witness, `This is the man.' See Biggers v. Tennessee, 390 U.S. 404, 407 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process." (p. 443.) The appellant argues that although Roth had ample opportunity to view the two robbers during the crime, he was completely unable to make an identification at the original lineup, and he admitted that nothing in particular caused him to make the identification at the second lineup, all of which suggests that this identification was merely the identification of a familiar face and 258 not the identification of an assailant at the scene of the crime. The appellant asserts that under a fair reading of the totality of the circumstances rule, the circumstances surrounding his identification were suggestive and improper to the extent that his right to due process was violated. The state's position is that the lineup procedures with respect to witness Roth were not violative of the appellant's due process rights within the cases discussed above, and further that Roth's in-court identification was capable of supplying the requisite identification regardless of any alleged deficiency in pretrial confrontations. On the basis of the record before us we are unable to conclude that the appellant's constitutional rights were violated. The facts in the instant case do not go to the extreme proportions as they did in Foster, supra; consequently it is not controlling authority that the procedures utilized in this case were impermissibly suggestive. In the case at bar, Roth's testimony on cross-examination concerning whether or not anyone other than the appellant appeared in both lineups went as follows: "Q. Can you recall if anybody other than the defendant was in both the first and the second lineups you viewed? "A. No. "Q. He was the only one in both those lineups, wasn't he? "A. Well, as far as I could tell. I can't remember, you know. You mean the same party in both lineups? "Q. I am saying the same party, that is right. "A. I really don't know whether there was. "Q. You don't recall? "A. I can't recall it, no, whether there was or not. "Q. To your knowledge, then, the defendant was the only individual who was in both the first and second lineups? "A. As best I can recall now, yes. "Q. And when you viewed the second lineup, did you recall having seen the defendant in the first lineup? "A. Yes. "Q. And did you recognize anybody else in the second lineup as having been in the first lineup? "A. Not that I can recall now." It is obvious from the foregoing testimony that the fact that the appellant appeared in both lineups did not make a significant impression on Roth and he was unsure as to whether other members of the original lineup also appeared in the second one. 259 We do not agree with the appellant's contention that the fact he may have been the only person appearing in both lineups ipso facto invalidates Roth's identification at the second lineup. Indeed the United States Supreme Court decisions cited by the appellant and discussed above require us to review the "totality of the circumstances," and in so doing we note the appellant was represented by counsel at both lineups; the exhibits before the trial court included a photograph of the second lineup and the height and weight of each suspect was listed on the lineup waiver; there is no contention by the appellant that he stood out from the other three men in the lineup because of any physical contrast; Roth had an ample opportunity to view the robbers at the time of the crime; and both lineups were conducted within nine days of the holdup. While it may be preferable for the authorities to use the same participants in each lineup, that would frequently be impossible due to the fact that the participants other than the primary suspect are usually persons who happen to be in custody at the time of the lineup and they would not be available for any length of time. After personally hearing the testimony the trial court concluded the procedures utilized were not unduly suggestive, and we are not persuaded otherwise. It should also be noted that in the present case Roth was not the sole witness to the robbery. The appellant was identified by Glasscock, another Prolerized Steel employee, and his accomplice, Lomax. In addition, it must be pointed out that Roth identified the appellant during the trial as one of the men who robbed the office. This court has held that in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations. (State v. Kelly, 210 Kan. 192, 499 P.2d 1040; State v. Calvert, 211 Kan. 174, 505 P.2d 1110; and State v. Lora, 213 Kan. 184, 515 P.2d 1086.) Under these circumstances, Roth's in-court identification would be sufficient regardless of any alleged deficiency in pretrial confrontations, though Roth's failure to identify the appellant at the first confrontation was properly a basis for cross-examination and jury argument. The appellant's final point is that the trial court erred in refusing to grant his motion for judgment of acquittal because the evidence was legally insufficient to uphold a conviction under the felony-murder rule (K.S.A. 21-3401). In a murder committed during the commission of a felony the 260 felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony. (State v. Reed, 214 Kan. 562, 520 P.2d 1314 and the cases cited therein.) The appellant argues the felonious conduct must have a factual connection with the conduct which caused the death, and that in this case the state's evidence failed to bring forth a sufficient link between actions taken by the parties inside the office at Prolerized Steel and the actions taken by Etier outside the office which resulted in Roy Lake's death. It is argued that other than the testimony of Lomax there is no clear and convincing proof that the appellant was involved in the perpetration of a felony which had any factual link to Lake's death. This court has long recognized that uncorroborated testimony of an accomplice is sufficient to sustain a conviction. (State v. Shepherd, 213 Kan. 498, 516 P.2d 945.) The credit to be given such testimony is a matter for the jury's determination. Lomax's testimony discloses that Etier, Lomax and the appellant had conspired to rob the Prolerized Steel office and had driven there together for that purpose on the morning of September 11, 1973. Etier, who was armed with a rifle and a pistol, remained in the driver's seat of the automobile for the obvious purpose of allowing the threesome to make a quick get-away, and also to be on the alert in the event they were discovered. In performing these duties Etier was a participant in the robbery and was as guilty as Lomax and the appellant. (State v. Turner, 193 Kan. 189, 392 P.2d 863; and K.S.A. 21-3205.) In State v. Turner, supra, it was held that where the evidence disclosed the defendant participated in the commission of a burglary, during which the victim was killed by another participant, the defendant was equally guilty of the murder of the victim, and it was only necessary for the state to produce evidence which tended to connect the defendant with the commission of the crime of burglary, and show that the victim was murdered in the perpetration of such acts. (See also, State v. Boone, 124 Kan. 208, 257 P. 739; and State v. Bundy, 147 Kan. 4, 75 P.2d 236.) Furthermore in The State v. Roselli, 109 Kan. 33, 198 P. 195, *261 it was held that if, in the execution of a common purpose of two persons to rob, one of them murders the victim, the other is guilty of murder. Accordingly we conclude Etier's murder of Lake was in furtherance of the threesome's common design to rob the office. Etier remained in the get-away vehicle armed with a rifle and a pistol which shows he was expected to prevent any exposure of the crime being committed inside the office, and the shooting of Lake who discovered the robbery was a natural and probable consequence of the common purpose. The judgment of the lower court is affirmed. FROMME, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1762253/	184 N.W.2d 586 (1971) JOHNSON & PETERSON, INC., Plaintiff, v. Thomas J. TOOHEY and Gloria Toohey, Respondents, John W. Lund, Appellant, Crystal Linoleum & Tile Company, Inc., et al., Defendants. No. 42443. Supreme Court of Minnesota. February 26, 1971. Bernard M. Harroun, Minnetonka, for appellant. Swanson & Preuter, Minneapolis, for respondents. Heard before KNUTSON, C. J., and NELSON, MURPHY, PETERSON, and ROSENGREN, JJ. OPINION NELSON, Justice. Appeal from an order of the District Court of Carver County denying the motion of defendant-appellant, John W. Lund, for the production of documents and from an order granting the motion of defendants-respondents, Thomas J. and Gloria Toohey, for summary judgment. This case, which was originally one to foreclose a mechanics lien, was appealed to this court for the first time in 1968. Johnson & Peterson, Inc. v. Toohey, 285 Minn. 181, 172 N.W.2d 326. The issues on that appeal were whether defendant Lund's materialman's lien was timely filed against property owned by the Tooheys and whether *587 the general contractor, who had requested labor and material from Lund to construct a house for the Tooheys, was their agent, thereby rendering them liable to Lund for labor and material supplied. This court affirmed the lower court's finding that Lund's materialman's lien was not timely filed but reversed the trial court's finding that the services and materials furnished by Lund were supplied at the request of the general contractor acting as agent for the owners. We held that an owner of real estate is not liable for materials furnished a contractor where the owner is not a party to the contract between the contractor and subcontractor or materialman; and that the owner's consent to the making of an improvement does not of itself impose on him any personal liability, nor does the fact that he benefits therefrom impart contractual liability. We also stated that we found no evidence which would establish an express agency, nor any facts and inferences which might establish the existence of an agency between Lund and the Tooheys from the evidence as a whole. However, we granted a new trial on the issue of the owners' personal liability. After that opinion was handed down, Lund moved the district court for an order compelling the Tooheys to produce documents which he claims would show that the general contractor, Suburban Equipment Company, was acting as the Tooheys' agent in the construction of their home. The Tooheys thereupon moved for summary judgment under Rule 56, Rules of Civil Procedure, alleging that there was no genuine issue as to any material fact. The trial court, after receiving affidavits and hearing arguments on both motions, denied Lund's motion for the production of documents and granted the Tooheys' motion for summary judgment. This appeal followed. 1. We do not proceed to the merits of the appeal. Rule 103.03, Rules of Civil Appellate Procedure, lists those orders from which an appeal may be taken to the supreme court. Appellant has failed to perfect appeals from orders which were appealable. This court held in Nelson v. B & B Investment Co. Inc., 264 Minn. 393, 119 N.W.2d 713, that an order granting a motion for summary judgment is an intermediate order and not appealable under Minn.St. 605.09 (superseded by the substantially identical Rule 103.03, Rules of Civil Appellate Procedure). In that case we stated (264 Minn. 394, 119 N.W.2d 713): "We have held that this court's jurisdiction as to appeals is limited to those instances set forth in Minn.St. 605.09. We have also held that an order granting summary judgment is an intermediate order which requires a subsequent judgment to give it effect and is not appealable. Shema v. Thorpe Bros., 238 Minn. 470, 57 N.W.2d 157." See, also, Crum v. Anchor Cas. Co., 264 Minn. 378, 119 N.W.2d 703; In re Estate and Guardianships of Williams, 254 Minn. 272, 95 N.W.2d 91.[1] 2. Likewise, the order denying appellant's motion to compel production of documents is an intermediate order and may not be reviewed on appeal except when the appeal is taken from a final judgment. Asplund v. Brown, 203 Minn. 571, 282 N.W. 473; In re Trusteeship Under Will of Melgaard, 187 Minn. 632, 246 N.W. 478; In re Estate and Guardianships of Williams, supra. Appeal dismissed. NOTES [1] However, we have held an order denying summary judgment appealable under Rule 103.03(i), Rules of Civil Appellate Procedure, if the trial court certifies that the question presented is important and doubtful. The Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289, appeal dismissed, 395 U.S. 161, 89 S. Ct. 1647, 23 L. Ed. 2d 175; In re Estate and Guardianships of Williams, 254 Minn. 272, 95 N.W.2d 91.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2169049/	235 Wis. 2d 325 (2000) 2000 WI 51 611 N.W.2d 659 Christine MORDEN, Plaintiff-Respondent-Cross-Appellant-Petitioner, Thomas MORDEN, Plaintiff-Respondent-Petitioner, CITY OF MILWAUKEE, Wisconsin Health Organization and Compcare, Plaintiffs, v. CONTINENTAL AG, Defendant-Appellant-Cross-Respondent,[] MR. P'S IDEAL TIRES CORPORATION, Defendant. No. 98-0073. Supreme Court of Wisconsin. Oral argument November 30, 1999. Decided June 16, 2000. 332 For the plaintiff-respondent-cross appellant-petitioner and the plaintiff-respondent-petitioner there were briefs by Robert A. Slattery, Alan E. Gesler, and Slattery & Hausman, Ltd., Waukesha, and M. Nichol Padway and Padway & Padway, Ltd., Milwaukee, and oral argument by Robert A. Slattery. For the defendant-appellant-cross respondent there was a brief by Frank J. Daily, Francis H. LoCoco, Daniel J. LaFave and Quarles & Brady, LLP., Milwaukee, and oral argument by Frank J. Daily. ¶ 1. DAVID T. PROSSER, J. Christine and Thomas Morden (the Mordens) seek review of an 333 unpublished, per curiam decision of the court of appeals[1] that reversed a judgment of nearly $7 million entered in their favor by the Circuit Court for Milwaukee County, Francis T. Wasielewski, Judge. The circuit court ordered the judgment after a jury found Continental AG (Continental) negligent in the design or manufacture of two mud and snow tires mounted on the rear of the Mordens' vehicle. ¶ 2. This action arose from an accident in which Christine Morden suffered spinal cord injuries that rendered her a quadriplegic. In March 1991 Christine was traveling with her family to a Florida vacation in a Volkswagen (VW) Vanagon. She and her husband, Thomas, had shared the driving responsibilities during the course of the 23-hour drive from Milwaukee. Shortly before entering Florida, Christine took over at the wheel. When the Vanagon crossed an overpass, the Mordens felt a dip in the road and heard a pop. They assumed that their tires had blown out. Christine Morden lost control of the Vanagon. The Vanagon rolled over onto the grass median, landing on its left side. The roof of the vehicle crushed, and Christine Morden was not able to move. ¶ 3. The Mordens pursued both negligence and strict liability claims against Continental for the testing, design, and manufacture of the rear tires. The Mordens also sought recovery from VW, the manufacturer of the Vanagon, Ernie von Schledorn Imports, Inc. (EvS), the dealer that serviced the Vanagon, and Mr. P's Ideal Tire Corp. (Mr. P's), the retailer that sold the tires to the Mordens. Less than two weeks before the jury trial began, the Mordens reached an agreement with VW, under which the Mordens received a 334 settlement of $500,000 in exchange for a covenant not to sue VW. ¶ 4. After a four-week trial, the jury unanimously found Continental negligent in the design or manufacture of the tires. It also determined that Continental was strictly liable for producing tires that were unreasonably dangerous. The circuit court, however, found the strict liability verdict defective because the same 10 jurors did not agree on answers to the questions relating to strict liability and damages. The jury also concluded that Christine Morden was negligent in the operation of the vehicle and that her negligence was a cause of the accident. Although the jury decided that Thomas Morden was negligent in the maintenance or selection of the tires, it answered that Thomas Morden's negligence was not a cause of the accident. The jury determined that Mr. P's and EvS were not negligent. The jury did not hear evidence about the covenant-not-to-sue agreement with VW, and therefore the court submitted no question about VW's negligence to the jury. The jury awarded $10,467,408 in damages to Christine Morden and $1,237,830 to Thomas Morden. It also apportioned 50 percent of the causal negligence to Continental and the other 50 percent to Christine Morden. ¶ 5. The circuit court approved the jury's verdict, with the exception of the strict liability determination, and entered a judgment on the Mordens' negligence claim. Taking into account the 50 percent negligence allocated to Christine and adding additional costs and interest, the circuit court ordered that Continental pay $6,206,699.91 to Christine Morden and $636,328.04 to Thomas Morden. ¶ 6. Continental appealed. The court of appeals reversed, holding that the evidence presented at the 335 trial was not sufficient to maintain the jury's finding that Continental was negligent. The court concluded that the Mordens had not proved that Continental breached a duty of care to them. The court reasoned that the Mordens failed to present evidence that Continental knew or should have known the design or manufacture of the tires was unsafe. ¶ 7. We frame four issues in this case. First, the Mordens ask this court to address numerous questions underlying the broad issue of whether the evidence offered at trial was sufficient to sustain the jury's finding that Continental was negligent in the design or manufacture of the tires. Second, the Mordens would like us to determine whether the jury returned a defective verdict for the strict liability claim. The Mordens present this second issue as an alternative to the first and ask us to consider it only if we affirm the court of appeals on the negligence claim. Third, the Mordens propose that this court revise the rules of appellate procedure to prevent the court of appeals from filing per curiam, unpublished decisions in complex cases that reverse judgments entered after a jury verdict. Fourth, in its cross-response, Continental maintains that the circuit court erred when it did not advise the jury about the covenant not to sue negotiated between VW and the Mordens. Continental argues that the exclusion of this evidence prevented it from receiving a fair trial. Consequently, Continental asks that we grant its request for a new trial if we reverse the decision of the court of appeals. ¶ 8. We conclude that the evidence presented at trial was sufficient to sustain the jury's finding that Continental was negligent. Under a reasonable view of this record, we find credible evidence to support the determination of the jury. Accordingly, we reverse the 336 court of appeals. Because we decide this case based on this first issue, we do not reach the Mordens' second, alternative issue relating to the validity of the strict liability verdict. Similarly, we do not address the third issue pertaining to the scope of per curiam opinions because our decision today reverses the decision of the court of appeals. For the fourth issue, we hold that the circuit court appropriately exercised its discretion when it declined to admit the evidence of the covenant not to sue. We also find a new trial is not warranted because Continental has not shown that the real controversy at issue was not tried or that the trial resulted in a miscarriage of justice. FACTS ¶ 9. The record in this case is extensive and reflects the protracted and acrimonious nature of the litigation. Although the underlying facts are not in dispute, the parties challenge the inferences and conclusions drawn from those facts. ¶ 10. On March 21, 1991, Christine and Thomas Morden left Milwaukee in their 1985, four-cylinder, VW Vanagon with two of their children, Melissa and Matthew, for a spring vacation in Florida. They had made this trip about 15 times before in the years between 1977 and 1990, usually timing the vacation so that it would coincide with the Easter holiday. The Mordens hoped to spend one week to ten days in Bonita Springs, a Gulf-side location where their parents have cottages. ¶ 11. The Mordens began the trip at about 6:00 p.m. on the Thursday preceding Easter. Christine worked as a daycare provider, and the Mordens waited to depart until the client parents had picked up their children at the end of the day. Thomas returned from 337 his job at 8:00 a.m. that morning after completing a 24-hour shift as a firefighter for the Milwaukee Fire Department. Neither he nor Christine slept during the day of the departure, but Thomas testified that he was not tired and that he typically was able to sleep at work during an 11-hour period between fire calls. Each Morden expected to sleep during those portions of the trip when the other drove. ¶ 12. The Mordens planned to drive straight through to their Florida destination, taking turns at the wheel in 200-mile shifts between tanks of gas. Thomas Morden estimated they would travel between 26 and 28 hours. They had driven straight through in this manner during their previous 15 road trips to Florida. ¶ 13. Thomas Morden loaded the Vanagon for the vacation. Having made the trip before, he testified that over time the family had been taking fewer things with them. In addition to four suitcases, Thomas Morden packed a 10-pound microwave oven, a cooler containing a 12-pack of soda, a few board games, and pillows and blankets. He also mounted a Lazer, a one-person 14-foot sailboat, to the roof of the Vanagon. The Lazer is a flat-decked, fiberglass craft, similar to a surf-board, that weighs about 135 pounds.[2] Thomas Morden also attached a Hobie Cat, a lightweight sailboat consisting of a canvas stretched across two catamaran pontoons, to a trailer at the rear of the Vanagon. VW had advertised a Vanagon/Hobie Cat package in the mid-1980s. One such promotion, apparently targeting VW retailers, featured a Hobie Cat perched on the roof of a Vanagon and promised that "these Vanagons will 338 be sailing out of your showroom."[3] Although VW promotional materials were not shown to Thomas Morden during the trial, Thomas recalled seeing a Vanagon/Hobie Cat advertisement, and he believed that the Vanagon was designed for the purposes advertised, namely family trips and vacations. ¶ 14. During the drive, the Mordens traveled through Illinois, Indiana, Kentucky, Tennessee, and Georgia. They had followed this route on previous trips, and, depending on the date of the Easter holiday, the Mordens occasionally ran across inclement weather. For instance, the family once encountered nearly eight inches of snow one spring near Atlanta. Taking into account the potential conditions and the fact that the holiday fell early in the calendar that year, Thomas decided it was better to leave snow tires on the Vanagon. ¶ 15. When the Mordens reached the last stop in Georgia before the Florida border, Christine assumed the driving responsibilities from Thomas. They had been on the road for roughly 23 hours and were about 360 miles from their destination. During that time, the Mordens experienced no problems with the Vanagon or its tires. Thomas Morden did not notice any swaying of the trailered Hobie Cat. Thomas explained that he had 339 traveled so many times with the Hobie Cat in tow that he would check the trailer during stops, walking around to verify that it was tied down properly.[4] He conceded, however, that the Hobie Craft "waddled a bit" if a semi-trailer passed alongside the Vanagon. ¶ 16. Christine had been driving for about 30 minutes on Interstate 75 when the Mordens noticed heavy traffic as they approached Florida. Thomas Morden was not able to see the speedometer from his position in the passenger seat, but he estimated that the Vanagon was traveling anywhere from 55 to 65 miles per hour, moving with the flow of traffic. The posted speed limit was 65 miles per hour. Another driver traveling on the interstate, Scott Leonhard, testified that his cruise control was set at 72 miles per hour and that he and the Vanagon occasionally passed each other. ¶ 17. As Christine continued down Interstate 75, she drove onto an overpass. Thomas and Christine Morden felt a "dip" in the asphalt when the Vanagon crossed the overpass and returned to the highway. After passing the dip, the Mordens heard a "pop" and assumed that the tires had blown. Witness Leonhard observed the back of the van lift up off the ground. To the Mordens, the Vanagon felt as if it were fishtailing on ice, light in the rear and lacking stability. Christine slowed down to 35 or 40 miles per hour and made slight steering maneuvers, keeping her feet off the brake and gas pedals. She continued in this manner for about a distance of three blocks, when the Vanagon lost control.[5] At that point, the vehicle rolled to its right side, 340 swerved left, slid, and then bounced and rolled to the grass median, coming to rest on the left, the driver's side. ¶ 18. Thomas Morden noticed that Christine was down low, lying on her left side behind the steering wheel. At first, she told Thomas that she was okay, but she was not able to move or to lift herself from the vehicle. Christine Morden was wearing a three-point restraint seat belt. The belt allowed slack to travel down through the restraint to her lap. Consequently, when the accident occurred, Christine's head hit the roof of the vehicle. The roof of the Vanagon also caved in over her head. After paramedics removed the driver's seat and extricated Christine, she was transported 75 miles by helicopter to a hospital in Jacksonville, Florida. The Morden family learned that Christine suffered a spinal cord injury that resulted in paralysis. Christine Morden now is a quadriplegic. ¶ 19. After the crash, Florida State Trooper Harry Fouraker, the accident investigation officer, inspected the area around the overpass and noticed nothing on the road surface that could have caused the accident. Upon looking at the Vanagon, Trooper Fouraker saw that its rear tires were blown out and punctured and that the tires' sidewalls were ripped. The Mordens' accident reconstruction expert, Morrie Shaw, later testified that both wheels on the Vanagon had ruptured simultaneously and suggested that a 341 bump or dip in the overpass triggered the rupture. Similarly, Continental quality assurance engineer Victor Bleumel, who inspected the tires, hypothesized that the tires struck something that precipitated the blowout.[6] ¶ 20. Trooper Fouraker found the damaged tires unique and suggested to Thomas Morden that they deserved further investigation. The officer made no similar recommendation about the Hobie Cat trailer, the Lazer sailboat, or the Vanagon itself. Fouraker did characterize the loading of the vehicle as more consistent with a "mini-move" than a family vacation, but reconstruction expert Shaw calculated that the actual loaded weight of the Vanagon was less than the load capacity of the rear tires by a total of 1,178 pounds. Similarly, Mr. P's tire consultant, Donald Avila, testified that loading had nothing whatsoever to do with the failure of the tires. ¶ 21. The rear tires that blew out on Interstate 75 were Continental mud and snow tires that Thomas Morden purchased from Mr. P's in November 1989, about one and one-half years before the accident. Previously, Michelin tires were mounted on the rear wheels of the Mordens' vehicle. Morden read the Vanagon's Owner's Manual, which instructed owners to purchase tires with the same specifications when making replacements. In fact, Morden had worked as a VW mechanic at two different dealerships during the early 1970s. Thomas Morden was not able to locate the same type of Michelin replacement tires. When Morden acquired the Continental tires, he knew that they were bigger than what the Owner's Manual recommended, but he testified that he was "told they would work." 342 Thomas Morden also explained that he thought he "was getting a bigger, stronger tire that would work on the back of the car." ¶ 22. As far as Morden knew, the Continental tires were a comparable size to the Michelins and thus would suit the Vanagon. Tire consultant Avila found the dimensions of the tires and their loading capacity appropriate for the Vanagon. Similarly, the owner of Mr. P's and the employee who sold the tires to Thomas Morden stated that the Continental tires were acceptable. Reconstruction expert Shaw and the Mordens' tire expert, John Taylor, disagreed, however, and stated that Morden had bought the wrong tires for the vehicle. ¶ 23. When Morden purchased the tires, the invoice stated that the tires came from "old stock." Both tires had been manufactured at the same plant in 1979 and were in Mr. P's stock for about 10 years. Taylor admitted that he had no information about where or how the tires were stored during that 10-year interval, whether they were stored properly, or whether they had been used before. Taylor suspected, however, that the tires had only 12,000 to 20,000 miles on them. Avila testified that the age and storage of the tires did not affect their failure. ¶ 24. Thomas Morden did not know that the Continental tires carried a maximum tire inflation pressure rating of 36 pounds per square inch (psi). Visually, the tires had looked fine to Morden from the day he purchased them until the accident, but he could not recall ever checking the pressure personally to determine whether the tires were overinflated or underinflated. An employee of Tech Lube, a garage that serviced the Vanagon, stated that the vehicle's tires were inflated to 45 psi, or 25 percent beyond the 343 maximum rating of 36 psi, just three months before the accident. The Mordens' own tire expert, Taylor, observed that the vehicle had been driven with overinflated tires for some time. Taylor agreed that overinflation can contribute significantly to separation between the steel belts in radial tires. On the other hand, tire consultant Avila explained that overinflation did not cause these tires to rupture. ¶ 25. Steel-belted radial tires contain two belts, a top belt and a bottom belt, that adhere together. The area between the belts is vulnerable: When driven, the tires experience high centrifugal forces that tend to pull the two belts apart as the tires whirl. Progressive belt separations can lead to the sudden failure of a tire. If the belts pull apart, the tire can split open and flatten. ¶ 26. To perform properly, steel-belted radial tires rely on adhesion between the belts to ensure that they do not separate. As tires age, they normally undergo some loss of adhesion. A nylon device, the "cap ply," functions as an additional adhesive to prevent belt separation. The cap ply wraps over the steel belts, runs around the circumference of the tire like an athletic bandage, and holds the belts down together. The cap ply also prevents the tire from expanding in size as the tire makes its revolutions. According to tire expert Taylor, manufacturers usually do not install cap plies in normal passenger tires, such as mud and snow tires, unless the tires are likely to experience a problem with belt separation. ¶ 27. The weakest point of a cap ply is the splice, the area at which one end of the cap ply joins or overlaps the other end. Cap plies can join in one of two ways: (1) A "single wrap" design creates one layer of nylon cording with an area of overlap at the point of 344 unison; or (2) a "double wrap" design winds the nylon cording around the belts twice so that the splice overlap covers the entire area of the belts. Although a 1974 patent for steel-belted radial tires acknowledged that single-wrapped cap splices were "known in the art," Taylor testified that double-wrapped cap splices were already in use in the 1960s and 1970s. Taylor explained that the double wrap makes the splice area less critical by minimizing the possibility that the cap ply will pull apart at the splice. Double-wrap splices, Taylor suggested, eliminate the weaknesses usually associated with a single splice. ¶ 28. The Continental tires that ruptured on the Mordens' vehicle featured a single-wrap cap splice. The record does not reveal whether Continental tested the strength of the single-wrap cap splice on the type of mud and snow tires mounted on the Vanagon. Taylor testified that both tires failed by splitting "right at this cap splice." Continental's quality control engineer, Victor Bleumel, conducted a physical and x-ray examination of the tires. Bleumel found a row of "bubbles" running along the inside of the tire from roughly a 12 o'clock to a four o'clock position. The extent of the bubbles coincided with the length of the belt separation. Taylor explained that the length of these bubbles, which were not visible from outside the tire, suggested that the belt separations had been present in the tire "for a good portion of its life" and had been growing larger as the tire was used. PROCEDURAL HISTORY ¶ 29. The Mordens filed a suit for damages against Continental, VW, Mr. P's, and EvS. On August 1, 1997, 11 days before the trial commenced, the Mordens negotiated a covenant not to sue with VW. 345 They agreed not to sue VW in exchange for a $500,000 settlement. Over a series of motions in limine, the circuit court ruled that evidence of this settlement was not admissible. The court reasoned that the evidence would be admissible only if it would show that the alignment or testimony of a party in the case had changed as a result of the agreement. ¶ 30. As the trial reached the end of its fourth week, the circuit court submitted a Special Verdict of 15 questions to the jury.[7] The Special Verdict asked the 346 jury to determine the negligence of Continental, Mr. P's, and EvS, as well as Christine and Thomas Morden. 347 Because VW was dismissed without objection, the Special Verdict questions did not address whether VW was 348 negligent. The Special Verdict also required the jury to apportion the percentage of causal negligence among Continental, Mr. P's, EvS, Christine Morden, and Thomas Morden. ¶ 31. After five days of deliberation, on September 12, 1997, the jury unanimously found Continental negligent in the design or manufacture of the tires and concluded that this negligence was a cause of the accident. For the strict liability claim, 10 jurors found that the tires were in an unreasonably dangerous, defective condition when the tires left Continental's possession. Two jurors dissented from this answer. Ten jurors also determined that this defective condition was a cause of the accident. Again two jurors dissented. On the damages question, a different juror disagreed with the jury's answer. Both Mr. P's and EvS were found not negligent. The jury concluded that Christine Morden was negligent with respect to her operation of the Vanagon, and it found that her negligence was a cause of the accident. Although the jury also found Thomas Morden negligent in the selection or maintenance of the Continental tires, it did not find his negligence a cause of the accident. The jury apportioned 50 percent of the negligence to Continental and 50 percent to Christine Morden. The jury awarded $10,467,408 in damages to Christine Morden and $1,237,830 to Thomas Morden. ¶ 32. The circuit court considered motions after verdict. Continental asked the court to overturn the jury verdict on the negligence claim and to find the strict liability verdict defective. The court agreed with Continental on the strict liability claim because the same 10 jurors had not agreed about all questions. The 349 court reasoned the strict liability verdict was defective under Giese v. Montgomery Ward, 111 Wis. 2d 392, 401, 331 N.W.2d 585 (1983), which requires that five-sixths of a jury must agree on all questions to support judgment on a particular claim. ¶ 33. The court declined, however, to overturn the negligence verdict. Instead, the court adopted the jury's verdict as its own. The court agreed that it was "reasonably foreseeable" to Continental that the design or manufacture of the tires posed an "unreasonable risk of injury." The court observed that John Taylor had testified about Continental's failure to install the double-wrap cap splice. Furthermore, other manufacturers commonly use double-wraps in the tire industry. The court also responded to Continental's argument that the jury overlooked evidence that Christine Morden was negligent in the manner in which she drove the Vanagon by explaining that product misuse speaks to contributory negligence, and plaintiffs are not required to prove that they were free from negligence. Evidence of misuse was presented at trial, and the jury allocated 50 percent of the negligence to Christine Morden. ¶ 34. Finally, the court addressed Continental's request for a new trial. Continental argued that the decision not to admit evidence of the VW agreement was prejudicial to its case. The court stood on the rulings it had made in earlier proceedings and declined the motion for a new trial. ¶ 35. The circuit court entered an order for judgment on November 24, 1997. The judgment provided that Continental must pay $6,206,699.91 to Christine Morden and $636,328.04 to Thomas Morden. These sums represented the amount of the total verdict of the jury, reduced by 50 percent, plus taxable costs and 350 interest accrued on the award in the interval between the verdict and the judgment. ¶ 36. Continental appealed. The court of appeals reversed the circuit court, holding that the evidence presented at the trial was not sufficient to maintain the jury's finding that Continental was negligent in the design and manufacture of the tires. Morden v. Continental AG, No. 98-0073, unpublished slip op. at 2, 7. The court accepted Continental's argument that it had not breached its duty of ordinary care. In so holding, the court asserted that the Mordens failed to present evidence that Continental knew or should have known that the tires were unsafe. The existence of safer, alternative manufacturing methods, the court said, is not sufficient to establish that a defendant created a product with a lack of ordinary care. Id. at 4, 6 (citing Locicero v. Interpace Corp., 83 Wis. 2d 876, 890, 266 N.W.2d 423 (1978)). Rather, the plaintiff must show that the defendant knew or should have known that the design or manufacture of the failed tires was unsafe. Although the court acknowledged that the Mordens' tire expert testified that the tires ruptured because a separation occurred between the belts in the radial tires, it concluded that the expert had not pinpointed whether that defect arose during the manufacturing process or in the course of the vehicle's operation. ¶ 37. After the court of appeals issued its decision, the Mordens filed a motion for reconsideration, asking the court to reconsider its decision on the negligence issue and remand the case for a retrial on the strict liability claim. Morden v. Continental AG, No. 98-0073, unpublished slip op. (Wis. Ct. App. May 27, 1999). The court of appeals denied the request and held that the Mordens had waived the right to a retrial for 351 two reasons. First, the Mordens failed to ask the circuit court to reinstruct the jury on the strict liability questions and to seek further deliberations. Id. at 3. Second, the Mordens did not raise the defective verdict as a basis for seeking a new trial on the strict liability claim during the motions after verdict. SUFFICIENCY OF EVIDENCE TO SUPPORT JURY VERDICT [1, 2] ¶ 38. We begin our analysis of the first issue, namely whether there was sufficient evidence to sustain the jury's verdict in the negligence claim, by addressing the standard of review. Our review of a jury's verdict is narrow. Appellate courts in Wisconsin will sustain a jury verdict if there is any credible evidence to support it. Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979); Giese, 111 Wis. 2d at 408. Moreover, if there is any credible evidence, under any reasonable view, that leads to an inference supporting the jury's finding, we will not overturn that finding. Ferraro v. Koelsch, 119 Wis. 2d 407, 410-11, 350 N.W.2d 735 (Ct. App. 1984), aff'd, 124 Wis. 2d 154, 368 N.W.2d 666 (1985); Wis. Stat. § 805.14(1).[8] 352 [3-5] ¶ 39. In applying this narrow standard of review, this court considers the evidence in a light most favorable to the jury's determination. Meurer, 90 Wis. 2d at 450; Stunkel v. Price Elec. Coop., 229 Wis. 2d 664, 668, 599 N.W.2d 919 (Ct. App. 1999). We do so because it is the role of the jury, not an appellate court, to balance the credibility of witnesses and the weight given to the testimony of those witnesses. Meurer, 90 Wis. 2d at 450. To that end, appellate courts search the record for credible evidence that sustains the jury's verdict, not for evidence to support a verdict that the jury could have reached but did not. Wheeler v. General Tire & Rubber Co., 142 Wis. 2d 798, 809, 419 N.W.2d 331 (Ct. App. 1987) (citing Gonzales v. City of Franklin, 137 Wis. 2d 109, 134, 403 N.W.2d 747 (1987)). If we find that there is "any credible evidence in the record on which the jury could have based its decision," we will affirm that verdict. Lundin v. Shimanski, 124 Wis. 2d 175, 184, 368 N.W.2d 676 (1985). Similarly, if the evidence gives rise to more than one reasonable inference, we accept the particular inference reached by the jury. Meurer, 90 Wis. 2d at 450; Ferraro, 119 Wis. 2d at 410-11. This court will uphold the jury verdict "even though [the evidence] be contradicted and the contradictory evidence be stronger and more convincing." Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 390, 541 N.W.2d 753 (1995). [6] ¶ 40. The standard of review in this case is even more stringent because the circuit court approved the jury's verdict. We afford special deference to a jury determination in those situations in which the trial court approves the finding of a jury. Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869 (1996). In 353 such cases, this court will not overturn the jury's verdict unless "there is such a complete failure of proof that the verdict must be based on speculation." Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979). ¶ 41. Having addressed the standard of review, we now turn to the heart of the negligence issue by examining whether there is credible evidence in the record to support the jury's determination. Given the narrow standard of review in this case, we undertake our analysis by viewing the evidence in a light most favorable to the jury verdict and by accepting the particular inferences drawn by the jury. [7] ¶ 42. Wisconsin case law allows plaintiffs to seek recovery from a manufacturer for the defective design of a product under a strict liability theory and/or a negligence theory. Sharp v. Case Corp., 227 Wis. 2d 1, 16, 595 N.W.2d 382 (1999) (citing Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677 (1975) (Heffernan, J., concurring)). The coexistence of the two theories has sparked confusion and criticism because both rely on an underlying product defect. See id. at 19; see also Erik J. Pless, Wisconsin's Comparative Negligence Statute: Applying It To Liability Cases Brought Under A Strict Liability Theory, Wisconsin Lawyer (August, 1998). Nonetheless, negligence and strict liability continue to offer separate avenues to recovery: This court recently declined to overrule Greiten, the case in which Justice Heffernan's controlling concurrence set forth the key distinctions that separate the two types of claims. See Sharp, 227 Wis. 2d at 16-17. [8] ¶ 43. The proof required in a strict liability claim differs from the quantum of proof in a negligence claim. Under a strict liability theory, the plaintiff must prove 354 the five elements set forth in Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55 (1967).[9] In Greiten, this court summarized these elements to the effect that, "It is sufficient for the plaintiff to show that the product reached him in a dangerously defective condition." Greiten, 70 Wis. 2d at 601. Claims brought under a strict liability theory thus focus on the condition of the product. Tanner v. Shoupe, 228 Wis. 2d 357, 365 n.3, 596 N.W.2d 805 (Ct. App. 1999) (citing Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 734-35, 218 N.W.2d 279 (1974)). Strict liability requires a showing that the condition of the product was unreasonably dangerous or otherwise posed an extraordinary form of danger. Sharp, 227 Wis. 2d at 19. [9, 10] ¶ 44. In a negligence action, by contrast, it is not necessary to show that the condition of the product reached the level of unreasonable dangerousness. Id. at 7, 16-17; Greiten, 70 Wis. 2d at 603. In that respect, the plaintiff's required proof appears less onerous at 355 first glance. On the other hand, under a negligence theory, a plaintiff will not prevail by showing only that a product was defective. The principles of negligence law hinge on a defendant's conduct, and therefore the plaintiff must show that the defendant was at fault. D.L. v. Huebner, 110 Wis. 2d 581, 610, 329 N.W.2d 890 (1983); see also Greiten, 70 Wis. 2d at 603. [11] ¶ 45. A negligence action requires the proof of four elements: "(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995). ¶ 46. Working under this standard of proof, the first question we ask is whether the Mordens satisfied the first element by showing that Continental owed a duty of care to them. See id. at 419. Wisconsin has long recognized that each individual owes a duty of care to others: The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act. Id. at 419-20 (citing Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928) (Andrews, J., dissenting)). The duty of care of a defendant is established when we can state that it was foreseeable that the defendant's act or omission could harm or injure another person. Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 55, 996 N.W.2d 456 (1999). The first element, duty of care, therefore pivots on foreseeability. Id. at 55-56. 356 ¶ 47. When assessing foreseeability, our courts do not require the plaintiff to prove that a particular injury is foreseeable; rather, it is sufficient to show that "some injury could reasonably have been foreseen." Fischer v. Cleveland Punch & Shear Works Co., 91 Wis. 2d 85, 97, 280 N.W.2d 280 (1979). Moreover, the test of foreseeability expects manufacturers to "anticipate the environment which is normal for the use of his product." Tanner, 228 Wis. 2d at 367 (quoting Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 896, 275 N.W.2d 915 (1979)). Consequently, the duty of care requires manufacturers to foresee all reasonable uses and misuses and the consequent foreseeable dangers, id. at 368 (citing Schuh, 63 Wis. 2d at 742-43), and to act accordingly. [12] ¶ 48. To establish that Continental owed a duty of care to the Mordens, we therefore must determine whether there was any credible evidence or inference therefrom to support the finding that Continental knew or, in the exercise of ordinary care, should have known, that the tires posed a foreseeable risk of injury. This analysis requires us also to consider whether Continental could have foreseen that dangers would result if the Mordens misused the tires. ¶ 49. The court of appeals in this case held that the Mordens failed to prove that Continental owed a duty of care to the Mordens because they did not present evidence that Continental knew or should have known that the tires were unsafe. We respectfully disagree. Credible evidence presented at trial suggests that the Continental tires evinced a belt separation problem that made a rupture possible. Tire expert Taylor testified that manufacturers do not install cap plies in tires unless they are likely to experience belt separation: 357 "[T]he existence of the cap ply indicates that they were using that to overcome the problems of keeping the steel belts together." Taylor explained that, "Normally you don't see a cap ply in a normal passenger tire except if it's needed in order to keep the separation resistance of the tire at acceptable levels." The cap ply functions as "a Band-Aid to fix a problem" and keeps the belts together to reduce separations. Based on this testimony, the jury could have concluded that the presence of the cap ply in the tire design indicates that Continental had actual knowledge of a belt separation problem, and that Continental could have foreseen that a belt separation was possible. The rupture of the tires on the Mordens' vehicle was not a "most unusual and highly coincidental circumstance[] that had to be present for somebody to be injured." Greiten, 70 Wis. 2d at 598; see also Fischer, 91 Wis. 2d at 95. It is not unusual to foresee that if tires are inclined to rupture, they are more likely to rupture and cause injury when a vehicle is traveling at high speeds. ¶ 50. The jury in this case also could have concluded reasonably that Continental foresaw misuse of the tires. Continental's 1988 Tire Guide alerts owners to refer to the tire information placard "for the correct tire size and inflation pressure." The Guide also notes that "replacement tires must have adequate load carrying capacity," and it outlines the proper load/inflation ratios for popular American automobile tire sizes. Continental's inclusion of this information relating to load and tire inflation, designed "to assure satisfactory tire performance," reveals that the manufacturer foresaw at least some types of consumer misuse. [13] ¶ 51. From the testimony and evidence presented at trial, the jury could have inferred that 358 Continental knew or should have known that the tires foreseeably were prone to belt separations and that misuse of the tires would pose a risk of foreseeable injury. Under the deferential standard of this review, we find that it was reasonable for the jury to infer that Continental owed a duty of care to the Mordens. ¶ 52. Having established that Continental owed a duty of care, we now apply our standard of review to the second element of the negligence analysis by considering whether the jury reasonably could have inferred that Continental breached its duty of care. [14] ¶ 53. In determining whether a defendant breached the duty of care, we hold the defendant to the standard of ordinary care: Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any harm, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject the person of another to an unreasonable risk of injury. State v. Bodoh, 226 Wis. 2d 718, 732, 595 N.W.2d 330 (1999) (quoting Wis JICriminal 1260); see also Wis JICivil 1005. [15-17] ¶ 54. Product manufacturers are held to this same standard of ordinary care. Smith v. Atco. Co., 6 Wis. 2d 371, 383, 94 N.W.2d 697 (1959). In gauging the liability of a manufacturer, we ask whether a "reasonably prudent person in the shoes of the defendant manufacturer" would exercise the same degree of care. 359 Id. In a negligence claim against a manufacturer, "the plaintiff is simply required to prove that the defendant failed to exercise ordinary care and the act or omission complained of was the cause, in the legal sense, of the plaintiff's injury." Greiten, 70 Wis. 2d at 601; see also Fischer, 91 Wis. 2d at 92. ¶ 55. To date, our courts have held that a showing by a plaintiff that better methods of manufacture exist does not conclusively prove that a defendant created the product with a lack of ordinary care. Morden v. Continental AG, No. 98-0073 unpublished slip op. at 4; Greiten, 70 Wis. 2d at 602; Locicero, 83 Wis. 2d at 890. Under this approach, negligence usually attaches only when the plaintiff can prove that the defendant selected the more dangerous route of manufacture knowing that it was unsafe. Locicero, 83 Wis. 2d at 890. [18-20] ¶ 56. Manufacturers nonetheless are held to the "reasonable person" standard of customary methods of manufacture in a similar industry. Huebner, 110 Wis. 2d at 616-17. Although nonconformance with industry custom is not conclusive proof of a failure to exercise ordinary care, it does provide evidence to the jury about whether the defendant reasonably could have done something to prevent the harm. Id. at 619; see also Fischer, 91 Wis. 2d at 97. Evidence of "the custom in the industry (what the industry was doing) and the state of the art (what the industry feasibly could have done) at the time" of the design or manufacture is relevant to the jury's determination of negligence. Huebner, 110 Wis. 2d at 616-17. Given evidence of industry practices, the jury can make the determination whether the manufacturer reasonably and economically could have chosen an alternative course of conduct. Id. at 619. 360 ¶ 57. The jury in this case reasonably could have concluded that Continental's failure to take the available precaution of using a double-wrap cap splice constituted a lack of ordinary care, even if the record is silent about whether Continental conducted tests on the single-wrap cap splice. Existing technology addressed the danger of belt separation in the manufacture of radial tires. A 1974 steel-belted radial tire patent states that: "It is known that many types of tires, especially radial ply carcass tires. . .often fail at high speeds because separations occur in the shoulder zones of the tires where the edges of the belt plies are located." Taylor testified that the single-wrap cap splice was not effective in preventing the underlying adhesion problem, adding that the double-wrap technology designed to eliminate belt separation had been known and generally used in the tire industry since the 1960s and 1970s. The patent acknowledges that single-wrap cap splices are "known in the art" but adds that such a design "does not, however, disclose a structure which overcomes either the problem of tire distortion and ply separation at high speeds." The patent alone may not establish the standard in the tire industry. Taken together, however, the patent and Taylor's testimony illustrate industry knowledge and address what feasibly could have been done at the time of the tire's manufacture. [21] ¶ 58. From this evidence, the jury could have reasoned that Continental should have chosen an alternative design to prevent the harm caused by belt separation. Consequently, credible evidence exists that could have led the jury to infer that Continental breached its duty of ordinary care. The inference is not the only one that a jury could reach from the evidence; 361 nonetheless, an appellate court reviewing a jury verdict must accept the particular inference drawn by the jury. Meurer, 90 Wis. 2d at 450; Ferraro, 119 Wis. 2d at 410-11. ¶ 59. We next apply our standard of review to the third element of the negligence analysis by determining whether there is credible evidence to support the jury's conclusion that there was a causal connection between Continental's manufacture of the tires and Christine Morden's injuries. [22-24] ¶ 60. The element of causation turns on "whether the defendant's negligence was a substantial factor in producing the injury." Nieuwendorp v. American Family Ins. Co., 191 Wis. 2d 462, 475, 529 N.W.2d 594 (1995). Our inquiry into causation focuses on the nexus between the design or manufacture of the tires and Christine Morden's injuries. To discern whether such a nexus exists, we must determine whether the defendant's actions were a "cause-in-fact" of the injuries. If they were, we explore whether the conduct of the defendant was a "proximate cause" of the harm sustained by the plaintiff. Proximate cause involves public policy considerations for the court that may preclude the imposition of liability. See Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 264, 580 N.W.2d 233 (1998). After the determination of the cause-in-fact of an injury, a court still may deny recovery after addressing policy considerations, or legal cause. Coffey v. Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132 (1976). This case, however, does not turn on proximate cause. Because legal cause is not at issue in this case, we focus our attention on the question of cause-in-fact. ¶ 61. In this case, the jury found that the design or manufacture of the tires was a cause-in-fact of the 362 accident. In addition, 10 members of the jury concluded that the tires left the possession of Continental in such defective condition as to be unreasonably dangerous to a prospective user and that the defective condition was a cause of the accident. Although the circuit court discarded the strict liability verdict in this case, the jury's answers to Questions 3 and 4 of the Special Verdict prevent Continental from now relying upon the kind of inconsistency in the jury verdicts at issue in Sharp, 227 Wis. 2d at 18-19. ¶ 62. Trooper Fouraker testified that the two rear tires of the Morden vehicle had drawn his attention. The failed tires were the unique thing he saw in his investigation. Accident reconstruction expert Shaw concluded that the two failed tires had undergone a belt separation. According to tire expert Taylor, a degeneration of the adhesion between the radial belts caused the separation. ¶ 63. Taylor hypothesized that the adhesion problems occurred either in the manufacturing process or in the operation of the tires. He described potential manufacturing difficulties ranging from excessive heat to inadequate materials, to dust.[10] Taylor acknowledged 363 that post-manufacturing problems, including the operation and maintenance of the tires, also could have affected adhesion. These problems included heat, age, speed, and overinflation of the tires. More than one factor could have affected adhesion. These problems were foreseeable, whether the adhesion problems began before or after the tires left the Continental plant. Taylor stated that each tire was defective because "the adhesive stem splice wasn't sufficient to take care of the tire during its life." ¶ 64. The two failed tires were made in the same plant at the same time. They were identical in design. The tires failed at the same time in exactly the same waythe cap ply around each tire split at the same spot, the cap ply splice. ¶ 65. Taylor testified that the belt separations in the two tires were of long-term duration. Hence, the jury could have concluded that the separations did not occur on the date of the accident because of speed or the dip in the highway. The speed of the Vanagon, the weight it was carrying, the highway dip, and other factors simply exacerbated the intense pressure that the already separated belts were putting on the "only structure[s] that [were] really left holding the tire[s] together," namely, the single wrap cap plies. As a result, they came apart, and the tires ruptured. ¶ 66. Taylor attributed the belt separation to Continental's use of the single-wrap cap splice. The 364 tires blew out because the "cap ply splice was not strong enough to hold the tire together." Taylor therefore concluded that tires would not have failed had Continental used the double-wrap cap splice.[11] ¶ 67. Similarly, the deposition of a Continental employee, read to the jury at trial, could have led the jury to infer that the tires would not have ruptured but for the failure of the single-wrap cap splice and the ensuing belt separations. Continental's quality control engineer, Victor Bleumel, observed that both tires split open at the weak juncture of the cap ply splice. Bleumel inspected the tires by way of physical and x-ray examination, and he found bubbles inside the tires that coincided with the area of the belt separation. He stated that the belt separation was a cause, "one factor," contributing to the failure of both rear tires and agreed that the tires probably would not have failed absent the separation. ¶ 68. The failure of both rear tires simultaneously at exactly the same points within the tires buttressed tire expert Taylor's belief that a design or manufacturing defect caused the tire failure. Morrie Shaw, the Mordens' accident reconstruction expert, also testified that the simultaneous rupture of the tires precipitated the vehicle's loss of control. Similarly, the director of quality assurance for Continental, Dr. Rainer Stark, indicated that belt separations lead to 365 tire failure, and the sudden failure of two tires simultaneously posed an increased risk of danger. ¶ 69. Mr. P's tire consultant, Donald Avila, presented conflicting testimony. He stated that "the tires had nothing to do with" the Mordens' accident, arguing that "the driver did something improper that caused the driver to lose control of the vehicle." Notwithstanding this testimony, we usually uphold a jury verdict when credible evidence supports that verdict, even if that evidence is contradicted by stronger and more convincing evidence. Weiss, 197 Wis. 2d at 388-90. ¶ 70. Continental contends that a claim for negligent manufacture or design cannot prevail "solely on the failure of the tires" when the plaintiff "failed to exclude other potential causes." It argues that the design of the tires does not give rise to an inference of negligence because other factors, such as the age of the tires and their misuse, were not eliminated as causes of the accident. For instance, Continental maintains that the manner in which the Mordens loaded the vehicle, overinflated its tires, and drove the vehicle caused the Vanagon to bottom out and led the tires to fail simultaneously. ¶ 71. We disagree for two reasons. First, the standard of review in this case requires us to accept the inferences drawn by the jury unless those inferences are completely speculative and unfounded. They are not. The jury heard ample evidence that the Mordens may have misused the Vanagon. The Mordens' own experts, Taylor and Shaw, testified that Thomas Morden purchased the wrong tires for the Vanagon, and Taylor conceded that this constituted misuse of the tires. The Tech Lube employee who serviced the vehicle explained that the tires were overinflated three 366 months before the Mordens departed on their vacation, and Thomas Morden himself conceded that he did not check the tire pressure personally. Taylor agreed that overinflation could contribute significantly to the loss of adhesion between the belts. But the jury also heard expert testimony that minimized the effect of these factors. ¶ 72. The jury's answers to the two Special Verdict questions about Thomas Morden's negligence suggest that the jury did not exclude other factors leading to the accident. To answer those questions, the jury must have pondered testimony that the Continental tires were not the proper ones for the Vanagon, that the tires may have been overinflated, that Thomas may have overloaded the vehicle, and, perhaps, that he did not secure the Hobie Craft well enough to prevent the trailer from swaying. The jury factored this evidence into the equation because it determined that Thomas Morden was negligent in the selection or maintenance of the tires. The jury did not conclude, however, that his negligence was a cause of the accident. These conclusions contradict the suggestion that the jury failed to consider causes other than the negligent design and manufacture of the tires. [25] ¶ 73. Second, product misuse, whether in the maintenance or operation of a vehicle, speaks to the affirmative defense of contributory negligence. Schuh, 63 Wis. 2d at 740-41. A negligence claim does not turn on a plaintiff's ability to exclude other possible causes, and a finding of negligence does not necessarily address the only cause of an accident. Accidents, as Judge Wasielewski remarked, can have more than one cause, and plaintiffs are not required "to show freedom from their own negligence as part of their own case." 367 Instead, "If they were negligent, it's the job of the defendant to allege contributory negligence and to prove it." ¶ 74. The jury in this case did not attribute the sole cause of the accident to Continental's negligence. Rather, it discerned that more than one cause led to Christine Morden's injuries. The jury found Christine Morden negligent with respect to her operation of the vehicle and determined that her negligence was a cause of the accident. Thus, the jury apparently considered witness Leonhard's testimony that the Vanagon was traveling at a speed of about 72 miles per hour and changing lanes abruptly, and it may have taken into account tire consultant Avila's opinion that the driver of the vehicle did something improper that caused the Vanagon to lose control. [26, 27] ¶ 75. The jury is free, as it did here, to assign a percentage of responsibility to the plaintiff for the harm he or she sustained because apportionment of negligence usually is a question of fact for the jury. See Peters v. Menard, Inc., 224 Wis. 2d 174, 193, 589 N.W.2d 395 (1999). The contributory negligence statute does not bar recovery to a plaintiff whose percentage of causal negligence is less than 51 percent. Wis. Stat. § 895.045. The jury apportioned 50 percent of the negligence to Continental and the other 50 percent to Christine Morden. Consequently, the statute does not preclude Christine Morden from recovering damages. ¶ 76. The jury was unanimous in its decision that Continental's negligence was a cause of the accident. Viewing the evidence in a light most favorable to the jury's verdict, we believe that a jury could infer that Continental's failure to implement the double-wrap 368 cap splice design was a substantial factor in the accident and constituted a cause-in-fact of Christine Morden's injuries. ¶ 77. Our review of the negligence claim concludes by addressing briefly the fourth element of the analysis, namely proof that an actual loss or damage resulted from the accident. The Mordens presented abundant evidence of the actual losses they sustained. As the trial court observed, "[t]he damages here could be fairly termed as catastrophic." A good share of the testimony by Thomas and Christine Morden focused on the debilitating nature of Christine's injuries and the care she requires. We have no doubt that the record supports the jury's finding that Christine, a quadriplegic, sustained an actual loss. [28] ¶ 78. Considering the evidence in a manner that is most favorable to the jury's verdict, we conclude that the record reveals credible evidence to sustain the jury's determination that Continental was negligent in the design or manufacture of the tires. Under any reasonable view of the evidence, the jury could have inferred that the Mordens satisfied the burden of proving each of the four elements of the negligence claim. This is not a case in which there was a complete failure of proof that would lead us to find that the jury must have based its verdict on impermissible speculation or conjecture. We therefore uphold the judgment of the circuit court that approved the verdict of the jury and reverse the court of appeals. ¶ 79. Because we reverse the court of appeals on this first issue, we do not reach the Mordens' second alternative issue, namely the finding of the circuit court that the strict liability verdict was defective. Similarly, we do not address the third issue presented by 369 the Mordens that asked us to consider the situations in which the court of appeals may file unpublished, per curiam opinions. CONTINENTAL'S REQUEST FOR A NEW TRIAL ¶ 80. Having concluded that the evidence at trial was sufficient to sustain the determination of the jury, we now turn to the issue Continental presents to this court, namely whether Continental is entitled to a new trial because the exclusion of evidence of the covenant not to sue prejudiced the jury and resulted in an unfair trial. We conduct this analysis in two parts, first looking at the scope of a trial court's discretion in making evidentiary rulings and then turning to the circumstances under which this court will exercise its discretion to grant a new trial. [29-31] ¶ 81. The standard for reviewing a circuit court's evidentiary ruling requires us to determine whether the court exercised its discretion appropriately. Grube v. Daun, 213 Wis. 2d 533, 542, 570 N.W.2d 851 (1997) (citing State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983)). In Grube, we commented that when we are asked to review evidentiary rulings, "we look not to see if we agree with the circuit court's determination, but rather whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." Id. If the circuit court applied the proper law to the pertinent facts and provided a reasonable basis for its ruling, we will conclude that the court acted within its discretion. Id.; see State v. Gray, 225 Wis. 2d 39, 48, 590 N.W.2d 918 (1999). Here, we conclude that the circuit court's decision to exclude the evidence of the covenant was an appropriate exercise of its discretion. 370 ¶ 82. Wisconsin Stat. § 904.08 governs the admission of evidence of a settlement or agreement. The statute provides: Compromise and offers to compromise. (1) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This subsection does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or proving an effort to compromise or obstruct a criminal investigation or prosecution. This statute precludes the admission of settlement evidence to show liability or prove the invalidity of a claim at issue. The last sentence permits admission of settlement evidence if that evidence is offered for other enumerated purposes, but it does not require the admission of such evidence. ¶ 83. Consistent with this statute, a party may offer settlement evidence to prove the prejudice or bias of a witness.[12]Anderson v. Alfa-Laval Agri, Inc., 209 371 Wis. 2d 337, 350, 564 N.W.2d 788 (Ct. App. 1997) (citing Hareng v. Blanke, 90 Wis. 2d 158, 167-68, 279 N.W.2d 437 (1979)). The party may demonstrate prejudice or bias by showing that a witness changed his or her testimony or that the posture of a settling party was significantly different as a result of the settlement. Id. ¶ 84. In this case, Continental argued to the circuit court that the testimony of the accident reconstruction expert, Shaw, changed as a result of the settlement because Shaw did not testify about the crashworthiness of the VW Vanagon. In response, the circuit court examined the last sentence of the rule and reasoned that there was no showing of witness bias by a change in testimony; rather, "[t]he only thing that's been shown is the testimony has been omitted." After all, the court said, it was not appropriate for Shaw to testify about crashworthiness when no question about crashworthiness was put to him. Thus, the court allowed mention of the covenant only for the purposes of showing bias insofar as the testimony of a witness had changed. This colloquy demonstrates that the circuit court exercised its discretion appropriately by applying the proper law to the pertinent facts and by offering a reasonable basis for its conclusions. ¶ 85. Continental argues that the circuit court misconstrued the rule by reading it too narrowly. Continental maintains that Wis. Stat. § 904.08 should be read expansively to include the admission of settlement evidence for purposes other than those enumerated in the last sentence. Section 904.08 is a modification of Federal Rule of Evidence 408. The third sentence of § 904.08 is more expansive than Federal 372 Rule 408 in that it adds the phrase "proving accord and satisfaction, novation or release" to the list of the enumerated purposes that justify the admission of settlement evidence. The Judicial Council Committee's Note to Rule 904.08 cites cases that "admonish trial courts to be cautious in determining admissibility." 59 Wis. 2d at R91 (1973). Because the purposes enumerated in our rule already go beyond Federal Rule 408, § 904.08 should not be expansively construed. See also In Matter of Estate of Ruediger, 83 Wis. 2d 109, 127, 264 N.W.2d 604 (1978). Consequently, this court would find it hard to overrule a circuit judge who thoughtfully articulated a narrow construction of the rule. [32] ¶ 86. Continental also relies on Johnson v. Heintz, 73 Wis. 2d 286, 243 N.W.2d 815 (1976), a case in which this court concluded that "the trial court should have allowed appellants to identify which insurance companies were aligned with which parties and to further introduce the fact of settlement" to the jury. Id. at 300. Despite this observation, Johnson cautioned that admission of evidence pertaining to settlement details would undermine the purpose of § 904.08 and render the statute meaningless. Moreover, although the last sentence of § 904.08 authorizes circuit courts to admit settlement evidence under certain circumstances, the rule does not require a court to admit that evidence. Thus, when parties have the opportunity to question the consistency of a witness's testimony, the exclusion of settlement evidence "can in no way be prejudicial." Id. at 301. In such cases, the error does not warrant sanction of a new trial. Id. ¶ 87. Having considered the discretion of the circuit court in making evidentiary rulings, we now turn to the circumstances under which this court will consider 373 granting a new trial. This court approaches a request for a new trial with great caution. Grube, 213 Wis. 2d at 553. We are reluctant to grant a new trial in the interest of justice, and thus we exercise our discretion only in exceptional cases. Gonzalez, 137 Wis. 2d at 133; State v. Friedrich, 135 Wis. 2d 1, 35, 398 N.W.2d 763 (1987). Where, as here, the circuit court has denied the parties' motion for a new trial, we recognize that "a circuit court is in a better position than an appellate court to determine whether confidence in the correctness of the outcome at the original trial or hearing has been undermined." State v. McCallum, 208 Wis. 2d 463, 491, 561 N.W.2d 707 (1997) (Abrahamson, C.J., concurring). ¶ 88. Bearing this cautionary approach in mind, we concurrently acknowledge the inherent and express authority that this court has to review requests for a new trial independently. See id. at 491 n.13; Grube, 213 Wis. 2d at 553. In determining whether parties are entitled to a new trial, this court "is not strictly limited by its erroneous exercise of discretion" standard of review. McCallum, 208 Wis. 2d at 491 n.13 (Abrahamson, C.J., concurring). Rather, Wis. Stat. § 751.06 grants us the authority to "direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial" in a discretionary review of the case. Id.; Wis. Stat. § 751.06. Under § 751.06, this court may grant a new trial under one of two prongs: If (1) "it appears from the record that the real controversy has not been fully tried;" or (2) "it is probable that justice has for any reason miscarried."[13] 374 ¶ 89. We turn then to the first statutory prong and address whether the record reveals that the real controversy in this case was not fully tried. This court has recognized that there are two circumstances under which it is possible that the real controversy has not been fully tried: (1) "when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case;" and (2) "when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried." State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996). ¶ 90. In this case, Continental questions the decision of the circuit court to exclude the evidence of the covenant not to sue. We examine Continental's request for a new trial, beginning with the first possible circumstance of the first prong, namely that the jury was not given the opportunity to hear important testimony that bore on an important issue in this case. We find that the exclusion of the VW agreement did not diminish the jury's ability to hear testimony. ¶ 91. This case is distinguishable from those situations in which this court previously has found that the exclusion of evidence prevented a full trial of the real controversy. In Hicks, 202 Wis. 2d at 172, we held that a defendant in a sexual assault case was entitled to a new trial because the real controversy, which centered on the defendant's identity, had not been fully tried. In Hicks, the defense counsel failed to secure the DNA evidence that could have excluded the defendant as the donor of a hair specimen critical to the identification of the assailant. Id. at 152, 157. The DNA 375 evidence, we concluded, bore substantially on the defendant's identity and therefore obscured an issue crucial to the case. Id. at 161. ¶ 92. The identity of the defendant was also at issue in Garcia v. State, 73 Wis. 2d 651, 245 N.W.2d 654 (1976). A witness identified Richard Garcia as the person who had been present at a shooting. Id. at 653. At trial, Garcia denied his presence and provided an alibi but did not disclose that a friend actually participated in the incident and that the friend would have testified that Garcia was not involved in the crime. Id. at 654. In granting a new trial, we held that the identification of the defendant and his alibi were central to the dispute and that the testimony of the participating friend therefore was "very material and significant." Id. at 655-56. ¶ 93. In State v. Cuyler, 110 Wis. 2d 133, 327 N.W.2d 662 (1983), a sexual assault case, the central issue hinged on the credibility of the defendant vis-à-vis the credibility of the victim. The defendant in Cuyler testified on his own behalf, and his attorney attempted unsuccessfully to introduce the testimony of police officers who could address the defendant's character. Id. at 136. We held that the real controversy was not fully tried because the circuit court excluded critical testimony about credibility, a determinative issue in the case. Id. at 141. ¶ 94. Generally, this court does not grant a new trial unless it finds that the exclusion of the evidence "so clouded a crucial issue" that it prevented the jury from reaching a fair and just result. Hicks, 202 Wis. 2d at 160. The facts of this case do not present the type of exceptional circumstances that clouded the issues in Hicks, Garcia, or Cuyler. Our decision to grant new trials in those cases bore immediately on the central, 376 sole issue at hand. Here, evidence concerning the VW agreement did not go to the central issue in this case or prevent this case from being fully tried. We therefore find that under the first prong of the statutory test, this case does not present circumstances so exceptional that they warrant a new trial. ¶ 95. We next consider the second statutory prong for a new trial, under which this court may exercise its discretion to grant a new trial when "it is probable that justice has for any reason miscarried." To grant a new trial in the interest of justice, we must find that "there has been an apparent miscarriage of justice and it appears that a retrial under optimum circumstances will produce a different result." Garcia, 73 Wis. 2d at 654. Thus, unlike the first statutory prong, this second prong requires an appellate court to find that there is a substantial probability of a different result on retrial. Vollmer, 156 Wis. 2d at 16-17, 19. ¶ 96. We are not persuaded that admission of the evidence in this case would, under optimum circumstances, have produced a different result. In Wisconsin, our established case law provides that a covenant not to sue does not affect a nonsettling joint tortfeasor. Imark Indus., Inc. v. Arthur Young & Co., 148 Wis. 2d 605, 622, 436 N.W.2d 311 (1989). Rather, the whole cause of action simply remains against the nonsettling defendants. Id. The nature of the case against Continental did not alter as a result of the VW agreement. ¶ 97. Our review of the record does not reveal that admission of the VW agreement would have yielded a different result at trial. Even under optimum circumstances, it is not clear that the agreement with VW, the manufacturer of the vehicle, had any impact on the determination of the jury that Continental was negligent in the design or manufacture of the tires. 377 ¶ 98. Continental argues that by failing to disclose the agreement, the circuit court deprived Continental of its opportunity to impeach the Mordens' witnesses. In particular, Continental points to the bias created by the fact that Shaw, the reconstruction expert, did not testify about the Vanagon's crashworthiness. We disagree. Shaw's pretrial opinions about the vehicle were before the circuit court, and Continental's lawyers could have asked Shaw whether he thought the roof or the tires caused the injuries.[14] At trial, Shaw testified that the roof of the Vanagon caved in, and Continental's lawyers could have used that testimony to probe into more about the vehicle. ¶ 99. Continental has not shown that admission of the VW agreement evidence would have produced a different result at trial. On the contrary, admission of the evidence could have had a prejudicial effect by implying that the Mordens had reached a monetary settlement with one defendant, making it less compelling to find in their favor as against Continental.[15] We therefore conclude that Continental has not satisfied the second statutory prong for a new trial. [33, 34] ¶ 100. The circumstances under which this court will exercise its discretion to grant a new trial are exceptional. Hicks, 202 Wis. 2d at 161. Taking into *378 account the appropriate discretion exercised by the trial court in its review of this evidentiary issue, we are not persuaded that this case presents circumstances exceptional enough to overcome our usual reluctance to grant a new trial. CONCLUSION ¶ 101. In conclusion, we hold that the record contains sufficient, credible evidence to sustain the jury's determination that Continental was negligent in the design or manufacture of the tires. We further hold that Continental is not entitled to a new trial on the basis of the exclusion of the evidence of the covenant not to sue. By the Court.The decision of the court of appeals is reversed. NOTES [] Motion for reconsideration denied September 14, 2000. [1] Morden v. Continental AG, No. 98-0073, unpublished slip op. (Wis. Ct. App. Apr. 13, 1999). [2] Thomas Morden testified that The VW Owner's Manual recommended securing no more than 200 pounds to the roof of the vehicle. [3] The 1986 Fall/Winter issue of Volkswagen Parts and Advice featured on its cover a Vanagon parked on a beach alongside a small, one-person sailboat that resembles the Lazer Thomas Morden described and another sailboat akin to the Hobie Cat. The photo description stated that: [T]he cover picture tells the Vanagon story...a passenger van with versatility, reliability and durability that combine to make the Vanagon the single smartest purchase you can make to meet your personal transportation needs (Note: Cover photograph of the Vanagon GL is for promotional purposes only. Off-road use is not recommended.) [4] The Mordens had towed the trailer for approximately seven years without any mishaps. [5] Although witness Leonhard conceded that he could not see the Vanagon's tires at the time of the accident, he observed nothing to suggest that the vehicle lost control because of the blowout. Rather, Leonhard attributed the loss of control to an abrupt lane change and the swaying of the trailer. Leonhard observed the Hobie Cat trailer swaying severely before the accident. A second witness reported to police that he saw no swaying, weaving, or signs that the driver, Christine Morden, suffered from fatigue. [6] Victor Bleumel did not testify at the trial. His deposition was read into the record by the Mordens. [7] The Special Verdict stated: 1. Was the defendant, Continental Tire, negligent in the design or manufacture of the 215/70 mud and snow tires which were on the rear of the Vanagon at the time of the accident? ANSWER: Yes 2. If you answered Question No. 1 "yes", then answer this question: Was such negligence of Continental Tire a cause of the accident? ANSWER: Yes 3. Were the 215/70 mud and snow tires when they left the possession of Continental Tire in such defective condition as to be unreasonably dangerous to a prospective user? ANSWER: Yes 4. If you answered Question No. 3 "yes", then answer this question: Was such defective condition a cause of the accident? ANSWER: Yes 5. Was the defendant, Mr. P's Ideal Tires, negligent with respect to the selection and [/or] sale of the 215/70 mud and snow tires? ANSWER: No 6. If you answered Question No. 5 "yes", then answer this question: Was such negligence of Mr. P's Ideal Tires a cause of the accident? ANSWER: ____ 7. Prior to the accident, was the defendant Ernie Von Schledorn negligent with respect to the maintenance of the tires on the Vanagon? ANSWER: No 8. If you answered Question 7 "yes", then answer this question: Was such negligence of Ernie Von Schledorn a cause of the accident? ANSWER: ____ 9. Was the plaintiff, Christine Morden, negligent with respect to her operation of the Vanagon at and immediately prior to the occurrence of the accident? ANSWER: Yes 10. If you answered Question No. 9 "yes", then answer this question: Was such negligence of Christine Morden a cause of the accident? ANSWER: Yes 11. Prior to the accident, was plaintiff Thomas Morden negligent with respect to the selection and [/or] maintenance of the tires on the Vanagon? ANSWER: Yes 12. If you answered Question 11 "yes", then answer this question: Was such negligence of Thomas Morden a cause of the accident? ANSWER: No 13. Assuming that the total negligence which caused the accident to be 100%, what percentage of that negligence do you attribute to: A. Continental Tire (If you did not answer either Question No. 2 or No. 4, or answer both "No", then insert "0".) ANSWER: 50% B. Mr. P's Ideal Tires (If you did not answer Question No. 6 or answered it "No", then insert "0".) ANSWER: 0% C. Ernie Von Schledorn (IF you did not answer Question No. 8 or answered it "No", then insert "0".) ANSWER 0% D. Christine Morden (If you did not answer Question No. 10 or answered it "No", then insert "0".) ANSWER: 50% E. Thomas Morden (If you did not answer Question No. 12 or answered it "No", then insert "0".) ANSWER: 0% TOTAL: 100% 14. Regardless of how you have answered any of the preceding questions, please answer the following: What sum of money, if any, will fairly and reasonably compensate Christine Morden for any damages sustained by her as a natural and probable consequence of the March 22, 1991 accident with respect to: A. Past medical, hospital and care expenses: ANSWER: $416,843.00 (answered by the Court) B. Future medical, hospital and care expenses: ANSWER: $2,850,000 C. Past loss of earnings from self-employment: ANSWER: $75,000 D. Future loss of earning capacity: ANSWER: $125,565 E. Past and future pain, suffering and disability: ANSWER: $7,000,000 15. Regardless of how you have answered any of the preceding questions, please answer the following: What sum of money, if any, will fairly and reasonably compensate Thomas Morden for damages sustained by him as a natural and probable consequence of any injuries of his wife in the March 22, 1991 accident with respect to: A. Past and future nursing care and attendant services provided to his wife: ANSWER: $487,830 B. Loss of consortium of Christine Morden: ANSWER: $750,000 [8] Wisconsin Stat. § 805.14(1) provides: (1) TEST OF SUFFICIENCY OF EVIDENCE. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party. All references to the Wisconsin Statutes are to the 1989-90 volumes unless indicated otherwise. [9] In Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55 (1967), this court set forth the five elements of a strict liability claim: [T]he plaintiff must prove (1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it. [10] During the trial, Taylor testified: In the manufacturing process it depends on the control of the materials involved, whether they are correctly formulated, whether they are processed properly. If they are processed too hot, what can happen is your coating, the rubber on here, if it's too hot, the material starts to cure prematurely and then when you build the tire, bond it together, it doesn't bond properly. Instead of getting the meld together, they will not meld properly and they will during the life of the tires cause separation. Conversely, if the material, if it's a tire that's not built often, a lot of times some of the materials have been gathered. Because all the components come from different stations around the plant, if they age too long, they start to cure. Again, with the same results, lack of knitting of the two belts properly. So aging is another property. Just plain collecting dust. All these things should be covered. The materials should be covered in the manufacturing process because it gets dust on it. Anything that can contaminate the surface will lead to separation problems, and then the integrity of the other components is important because you have to protect this area. The material needs to have protection of antioxidants in it, and antioxidants are chemicals that retard the influence of oxygen on rubber. [11] Counsel for Continental conceded at trial that John Taylor's testimony supported the conclusion that belt separations caused the tires to fail: "I can assure the Court that there is an enormous amount of testimony from Mr. Taylor on that very point, that there are belt separations, that the separations are what caused the tires to come apart when it hit the bump. The record is replete in those references." [12] In Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 341, 564 N.W.2d 788 (Ct. App. 1997), the circuit court advised the jury that the plaintiffs had settled their claims with a series of defendants. The jury thereafter returned a verdict that Alfa-Laval Agri, Inc. was not negligent. The court of appeals concluded that the circuit court had erred by advising the jury of the plaintiffs' settlement with other defendants, but it did not reverse the court because "there is sufficient evidence for the jury to conclude that Alfa-Laval was not negligent." [13] The statutes extend the same discretionary authority to the court of appeals. Wis. Stat. § 752.35. We have held that with respect to "the discretionary power to reverse under secs. 751.06 and 752.35 the powers of the supreme court and the court of appeals are coterminous." Vollmer v. Luety, 156 Wis. 2d 1, 18, 456 N.W.2d 797 (1990). [14] As the trial court remarked: "It's a basic law of evidence, though, that you can put in evidence for your case on cross-examination of somebody else's witness. It's done all the time." [15] "Introducing settlement evidence is a potentially incendiary device, one that could lead the jury to conclude that the plaintiffs have received ample compensation from the real malefactors and no further recovery is necessary." Daniel J. LaFave, The Admissibility of Settlement Evidence in Multidefendant Tort Cases, Wisconsin Lawyer (June 1998).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373078/	137 Ga. App. 286 (1976) 223 S.E.2d 482 FLANDERS v. HILL AIRCRAFT & LEASING CORPORATION. 51382. Court of Appeals of Georgia. Argued November 3, 1975. Decided January 16, 1976. Guy B. Scott, E. Lynn Mitchell, for appellant. Coggin, Haddon, Stuckey & Thompson, T. Jerry Jackson, for appellee. MARSHALL, Judge. This appeal is taken from the denial of Flanders' (plaintiff below) motion for a new trial. Flanders brought action against defendant Hill Aircraft & Leasing Corporation for breach of warranty as to airworthiness, merchantability and fitness of a twin engine aircraft sold by Hill Aircraft to Flanders. Flanders sought damages caused by expenses incurred in repairs and maintenance of the aircraft, installment payments made pursuant to contract, attorney fees, and punitive damages for fraudulent and deceitful representations. Hill Aircraft failed to file a timely answer. The trial court refused to open the resultant default. Jury trial was held to assess damages, and upon trial a verdict was returned in favor of defendant Hill Aircraft. Following entry of judgment, Flanders unsuccessfully petitioned for a new trial. Flanders enumerates some 15 alleged errors. The first three are on the general grounds and the remainder generally deal with rulings and acts by the trial court in admitting evidence over objection or dealing with the court's charge to the jury. In essence, these latter enumerations complain that the trial court allowed the defendant to relitigate the issue of liability, to argue questions of liability to the jury and required the jury, in effect, in its deliberations to determine that Hill Aircraft was liable for the damages suffered by Flanders. Our discussion of the alleged reopening of the question of liability disposes of all enumerations, except one, pertaining to the failure to award nominal damages to Flanders. Held: In pertinent part, Flanders' petition generally alleged that he purchased the described aircraft from Hill Aircraft. At the time of the sale, Hill, president of Hill Aircraft, or one of its agents, made representations as to the airworthiness of the aircraft, the number of hours on 287 the engines, and prior use of the aircraft. In fact the aircraft was not airworthy and had been operated far in excess of the representation of Hill Aircraft as to air time hours. Flanders, in good faith and relying upon the representations of merchantability and fitness for the use contemplated, purchased the aircraft. The airplane was highly defective and in an unsafe condition causing Flanders great expense in the maintenance and repair of the aircraft due to its defective condition and more specifically, the aircraft exploded a cylinder on one of its engines, and incurred many other miscellaneous expenses due to defects. After Flanders made known the defects, Hill Aircraft eventually refused further adjustments, to Flanders' disadvantage. Flanders demanded special damages for his ascertainable expenses, exemplary damages for Hill Aircraft's fraudulent and deceitful representations, as well as attorney fees. Hill Aircraft is a defendant in default. It is in the position of having admitted each and every material allegation of the plaintiff's petition except as to the amount of damages alleged. In that state of the record, Hill Aircraft is concluded as to its liability. Southern Bell Tel. & Tel. Co. v. Earle, 118 Ga. 506 (4), 510 (45 SE 319); Gary v. Central of Ga. R. Co., 44 Ga. App. 120 (4), 126 (160 SE 716). Since the defendant was estopped from contesting the merits of the case, the only issue Hill Aircraft could defend against was the amount of damages, that is whether the evidence of the cost of damages adduced by Flanders was accurate or not. Cooper v. Brock, 77 Ga. App. 152 (48 SE2d 156). The trial court, for the limited purpose of allowing defendant to attempt to show a lack of fraud, permitted defendant to introduce evidence that the aircraft had a certificate of airworthiness, that the aircraft had logs showing the maintenance schedule and flying hours, and that no representations had been made to Flanders concerning the condition of the plane other than that it was airworthy. For the avowed purpose of establishing the lack of damages, the defendant also was allowed to introduce evidence that the damaged cylinder could have resulted from actions not attributable to the defendant 288 and that other alleged defects were normal in a 13-year-old aircraft. Defendant's counsel was allowed to argue generally that Flanders had failed to establish unairworthiness, fraudulent misrepresentation, and that expense items were normal wear and tear rather than attributable to defects in the aircraft. The trial court charged the jury on the definitions of fraud and misrepresentation and then required the jury to determine what damage, if any, plaintiff Flanders may have received as a direct and proximate result of the acts alleged in the complaint. The court charged that defendant Hill Aircraft would not be responsible for any repairs or expenses that were not made or incurred as a proximate result of the specific liability alleged in the petition. Error committed by the trial court is that while the defenses offered by Hill Aircraft not only went to the assessment of damages, they also went to the very right of recovery. Such a construction of CPA § 55 (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238 (Code Ann. § 81A-155)) "would leave the defendant in as good position when he was in default as though he had answered, relatively to all the allegations of the petition. Indeed his position would be better; for the plaintiff would have no notice of the defense relied upon, or what allegations of the petition were admitted and what denied. Such is not the intention of the default law. Under that law the amount of damages due has to be fixed by the jury even when the defendant is in default, but otherwise the allegations of the petition are to be taken as true. And `upon the assessment of damages a defense which goes to the right of recovery can not be made.' 4 Cyc. 359." Lenney v. Finley, 118 Ga. 427 (2), 429 (45 SE 317); White v. Williams, 87 Ga. App. 496 (2) (74 SE 2d 363). In essence, Hill Aircraft by its default admitted the aircraft was unairworthy; that it had made fraudulent misrepresentations as to the number of hours on the engines and the prior use of the aircraft; that the aircraft was not merchantable nor fit for the purpose intended; that the aircraft was defective; these defects resulted in the left engine "blowing" a cylinder; and that other costs were incurred because of these defects. Flanders *289 introduced evidence to show the amount of costs incurred to repair the aircraft, the repeated difficulties experienced and the unsuccessful attempts to obtain what he had bargained for, an operable aircraft. It was error to allow Hill Aircraft to dispute that which it had admitted or to require Flanders to prove by a preponderance of the evidence that the defects and injuries received were the proximate result of misrepresentations by Hill Aircraft where the causal effect of such injuries was admitted by the default. It was proper for Hill Aircraft to dispute the amount of damages even to the point of showing their nonexistence, but not to deny the admitted injuries or its liability therefor. Lenney v. Finley, 118 Ga. 427 (2), 429, supra. There remains for discussion the question of nominal damages. In the present case, defendant's default requires a finding that there was a contract between the parties; that the contract was induced by fraudulent misrepresentations in that that which was promised was misstated and not delivered; and that as a result Flanders was injured. It is not necessary in order to obtain nominal damages, considering these facts, that Flanders prove quantifiable specific damage, since an injury was admitted by the default. In every case of breach of contract, the injured party is entitled to recover at the least nominal damages which will carry the costs of the action. Bendle v. Ortho Mattress, Inc., 133 Ga. App. 575 (2), 580 (211 SE2d 618). Judgment reversed. Bell, C. J., and Webb, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266201/	461 F.Supp. 350 (1978) UNIROYAL, INC., Plaintiff, v. JETCO AUTO SERVICE, INC., Irving Gellar and Marvin Gellar, Defendants. JETCO AUTO SERVICE, INC., Plaintiff-by-Counterclaim, v. INTER-CITY TIRE AND AUTO CENTERS, INC. and Uniroyal, Inc., Defendants-by-Counterclaim. No. 75 Civ. 921 (JMC). United States District Court, S. D. New York. August 23, 1978. 351 352 Arthur, Dry & Kalish by Walter Barthold, Gayle S. Sanders, New York City, for plaintiff. Pollack & Kaminsky by Daniel A. Pollack, Martin I. Kaminsky, New York City, for defendants. OPINION CANNELLA, District Judge: After a bench trial on the issue of plaintiff's liability to Jetco Auto Service, Inc. ["Jetco"] on the latter's counterclaims, the Court finds that Jetco may recover damages for violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, Section 340 of the New York General Business Law and for common law breach of contract. The other counterclaims are dismissed for failure of proof.[1] This Court has jurisdiction pursuant to 15 U.S.C. § 15, 28 U.S.C. §§ 1331, 1337 and the doctrine of pendent jurisdiction. THE FACTS Plaintiff Uniroyal, Inc. ["Uniroyal"] is a corporation engaged, inter alia, in the manufacture and sale of automotive tires and tubes in interstate and foreign commerce. Defendant-counterclaimant Jetco is a multi-service center for automobiles deriving its principal revenues from the sale of tires. Defendant Marvin Gellar is the president of Jetco, succeeding his father Irving Gellar as head of the family-owned business. Jetco is located on Route 9 in Dutchess County, New York. Jetco began selling Uniroyal tires in the mid-1960's and became a Uniroyal franchise dealer in 1968. Beginning in 1970, Jetco's tire business progressively increased and, in 1972, Uniroyal issued Jetco a franchise for a particular line of tires, called the Zeta Charter. (Jetco's Exhibit 9, hereinafter "JX" 9). Under the terms of the Zeta Charter, Uniroyal agreed not to "deliver Zeta tires to any other retail or wholesale establishment" within the Charter area. Jetco's Charter area was designated as the City and Township of Poughkeepsie. By its terms, the Zeta Charter agreement was valid from March 7, 1972, until December 31, 1973, unless sooner terminated by either party on thirty days written notice. 353 In February of 1973, the Uniroyal sales representative whose territory included Jetco, Edward G. Donnelly, informed Marvin Gellar ["Gellar"] that Uniroyal was granting a dealership to a tire outlet called InterCity Tire and Auto Centers, Inc. ["Intercity"] to be located also along Route 9, just six miles south of Jetco, in Wappingers Falls, Dutchess County. The close proximity of the two dealerships put them in direct competition. Intercity, like Jetco, was a family-owned corporation engaged in automotive services similar to those rendered by Jetco. Its president, Daniel Ginsberg, had prior ties to Uniroyal, having opened a Uniroyal dealership in Shrub Oak, New York in March of 1972 and, at an earlier period, having sold Uniroyal tires in New York City. Daniel's brother, Stanley Ginsberg, was also a Uniroyal dealer. Marvin Gellar expressed his concern to Donnelly about loss of sales to Intercity's Wappingers Falls store but was assured that Jetco would be treated equally with Intercity and that there was enough business for all. After an unexpected delay, caused by the roof's collapse during construction, Intercity's Wappingers Falls store opened in October 1973 and was then issued a Uniroyal Zeta Charter. Intercity's Zeta Charter area included part of the Township of Poughkeepsie, since its northern boundary was the City of Poughkeepsie. Mr. Donnelly's assurances to Gellar proved ineffectual. Uniroyal granted Intercity special discounts, allowances and other services, in violation of its own policies and regulations, that were neither offered nor available to Jetco. Moreover, Intercity's "Grand Opening" advertisements offered a special on "blem" tires[2] that Jetco also had requested but had been unable to obtain. In order to compete effectively with Intercity, Jetco reduced its prices and commenced open competitive advertising with Intercity. Jetco and Intercity advertised the same tires and services in the same newspapers, sometimes on adjacent pages. The advertisements were directed at the same persons throughout Dutchess County because both dealerships sought customers from the same geographic area. Seeing Jetco's prices fall below those of Intercity, Daniel Ginsberg complained to Donnelly. Donelly assured Ginsberg that nobody was getting better prices on tires than Intercity. According to Robert Sullen, manager of Intercity's Wappingers Falls store, Donnelly told him he had spoken to Marvin Gellar about the low prices and also had brought the information to the attention of Uniroyal's district sales manager F. G. Sears. Except for the Zeta tire prices, Jetco kept its prices below those of Intercity. In November of 1973, Donnelly and Sears visited Jetco to discuss the Intercity-Jetco situation. According to Gellar, Sears threatened him with product shortages and loss of dealership unless Jetco raised its prices. Shortly thereafter, Donnelly visited Gellar just after leaving Intercity's Wappingers Falls store. Donnelly told Gellar that Intercity would raise its prices one dollar if Jetco agreed to raise its prices two dollars. When nothing came of this last incident, Donnelly's regular visits to Jetco ceased until late January 1974. It was at that time that Gellar was advised of Uniroyal's decision to terminate Jetco as a Uniroyal dealer. When asked the reason for such action, Donnelly mentioned "customer complaints" but was unable to give Gellar any details. Gellar had never been advised of customer complaints serious or numerous enough to cause the termination of his dealership and had not been given the opportunity to cure or disprove these purported complaints. Gellar immediately telephoned Sears hoping Uniroyal would reconsider its decision. 354 Sensing that the Intercity-Jetco price was the actual reason for Jetco's termination, Gellar offered to meet with Daniel Ginsberg to try to work something out. Sears indicated that it was too late. Gellar followed up his telephone call with a mailgram to Sears, again pleading for a change of heart on Uniroyal's part. Sears responded by letter that the decision to terminate Jetco still stood and that the cancellation papers were being prepared. Uniroyal instituted suit in this Court against Jetco for goods sold and delivered amounting to $23,342.48. In the Pretrial Order, dated February 10, 1978, Jetco acknowledged its indebtedness to Uniroyal of this sum.[3] Uniroyal also sued Irving and Marvin Gellar as guarantors of Jetco's obligations. Jetco counterclaimed for damages, based upon violations of Sherman Act § 1, 15 U.S.C. § 1, Robinson-Patman Act § 2(a), (d), (e), 15 U.S.C. § 13(a), (d), (e), the Donnelly Act, N. Y. Gen. Business Law § 340, and common law wrongs, and impleaded Intercity alleging a conspiracy with Uniroyal in violation of state and federal antitrust laws. On May 4, 1977, Jetco discontinued its counterclaims as to Intercity only. In March 1978, the issues involving Uniroyal's liability to Jetco on the counterclaims were tried to the Court. DISCUSSION The Court has determined that Jetco may recover treble damages for Uniroyal's violation of Sherman Act § 1, 15 U.S.C. § 15, and may recover damages on its Donnelly Act claim and its breach of contract claim. Jetco may not recover for Uniroyal's violations of the Robinson-Patman Act due to a failure in proof of the fact of injury causally connected to the alleged wrongs. The Sherman Act § 1 Claim Congress has declared illegal "[e]very contract, combination . . ., or conspiracy, in restraint of trade or commerce . . .." 15 U.S.C. § 1. Section 4 of the Clayton Act provides a private right of action with recovery of treble damages for "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . .." 15 U.S.C. § 15. The Court finds that Uniroyal violated Sherman Act § 1 when, in response to complaints from Intercity, Uniroyal threatened Jetco to raise its prices and then made good on its threats by terminating Jetco's dealership. Jetco may recover treble damages under Clayton Act § 4 because it proved damage to its business caused by loss of the Uniroyal franchise. The evidence of interaction among Uniroyal, Jetco and Intercity is largely uncontradicted. Uniroyal admits that Daniel Ginsberg and Robert Sullen complained about Jetco's prices to Sears and Donnelly following the opening of the Wappingers Falls store and that, thereafter, Sears and Donnelly discussed Jetco's prices with Gellar. Uniroyal denies it ever asked Jetco to raise its prices, threatened Jetco with termination if it failed to do so or, finally, terminated the franchise for this reason. Uniroyal claims, instead, that the decision to stop dealing with Jetco was based upon customer complaints. At trial, Sears denied asking Gellar to raise Jetco's prices when he visited Jetco in November 1973. At the same time, however, Sears testified that "the point of my raising the fact that he [Gellar] was running rather low prices is indicative of the fact that I thought maybe he might do something about it." (Trial transcript at 583-84, hereinafter "Tr." 583-84). This was consistent with Sears' stated concern that the low prices at which Jetco was advertising Uniroyal's Zeta tires would hurt Uniroyal's "image." Marvin Gellar's recollection of the November 1973 visit was more elaborate: Mr. Sears told me that he was bothered about the prices I was charging for Uniroyal tires. He also told me he was bothered about the price competition that developed between Intercity and myself. . . . . . 355 [He told me he was bothered about] ... the low price I had on these tires and the fact that Mr. Ginsberg, of Intercity, complained [to him]. . . . . . He told me that ... he saw no reason that we could not raise our prices together ... and just draw what customers would come to each establishment. . . . . . He told me he had a very large district, ... that the Intercity store had spent a lot of money coming to the area and he did not need any aggravation from me and if I didn't raise my prices and get this situation solved immediately, he would take drastic measures. . . . . . He told me that he was a district manager, he had a lot of power, and we were coming to a chemical shortage where tires would be in short supply ..., that he could see where tires would not be shipped, and he also stated to me I had a franchise and it could be terminated. (Tr. at 254-55). One month earlier, Donnelly had spoken to Gellar about Jetco's prices and warned him of trouble with the front office. Gellar did not raise Jetco's prices and, in January 1974, the decision was made to terminate the Jetco franchise. Uniroyal labels this decision a unilateral determination made for a proper business purpose. The Court disagrees. Uniroyal's attempts to pressure Jetco into raising its prices, after receiving complaints from Intercity, and to work out the $1 Intercity/ $2 Jetco deal were not actions taken unilaterally. The "unilateral" shield protects no more than the mere announcement of pricing policy and the refusal to deal if such policy is not followed. Bowen v. New York News, Inc., 366 F.Supp. 651, 668 n.38 (S.D.N.Y. 1973) (Bauman, J.), aff'd in part, rev'd in part, 522 F.2d 1242 (2d Cir. 1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976); see United States v. Parke, Davis & Co., 362 U.S. 29, 37, 43, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). Similarly, the Court rejects Uniroyal's argument that the decision to terminate Jetco's franchise was made for a lawful purpose. The evidence of "customer complaints" against Jetco was flimsy at best. The source of one such complaint, a Mr. Rinaldi, stated in a letter that he allowed Intercity to register a complaint in his name in exchange for Intercity's promise of free tires. The purported complaint was that Jetco had overcharged Rinaldi for "blems," but Jetco offered proof that Rinaldi had paid a discounted price for his tires. Moreover, Daniel Ginsberg stated that nobody ever complained to him about Jetco. Uniroyal's "customer complaint" defense was further undermined by the testimony of Uniroyal district service manager Joseph Fields. When questioned as to the general procedure used in handling customer complaints, Fields responded that Uniroyal would contact the dealer complained about, either immediately or shortly thereafter. Despite this general practice, and juxtaposed against evidence that complaints concerning other dealers were investigated, Uniroyal produced no credible evidence that Gellar was ever notified about complaints against Jetco and failed to resolve them even though, according to Uniroyal, the numerosity of such complaints caused Uniroyal to terminate the Jetco franchise. Although Fields testified that Uniroyal received more than the usual number of complaints against Jetco, this was not something that either began or increased dramatically at or about the time Uniroyal decided to stop dealing with Jetco. Even were the Court to credit Uniroyal's evidence regarding customer complaints against Jetco, Sears admitted that the decision to terminate Jetco's dealership was also caused by Jetco's low prices. Because Uniroyal's "illegal motive substantially contributed to such decision," Phillips v. Crown Central Petroleum Corp., 395 F.Supp. 735, 769 (D.Md.1975), Uniroyal's "customer complaint" defense fails. Uniroyal's second major argument against liability to Jetco under Section 1 of 356 the Sherman Act concerns Jetco's burden of proving some damage flowing from the assertedly violative conduct. For it is wellsettled that: In order to recover in a private antitrust action under § 4 of the Clayton Act, 15 U.S.C. § 15, plaintiffs must establish a causal connection between the alleged antitrust violation and some injury to them. This fact of legal injury must be established with certainty, although at this stage the precise amount of damages may remain somewhat speculative. Jacobi v. Bache & Co., Inc., 377 F.Supp. 86, 93 (S.D.N.Y.1974) (Ward, J.), aff'd, 520 F.2d 1231 (2d Cir. 1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 784, 46 L.Ed.2d 642 (1976). Additionally, the injury suffered must have been to plaintiff's (or, in this case, counterclaimant's) "competitive position in the business in which he is or was engaged." GAF Corp. v. Circle Floor Co., 463 F.2d 752, 758 (2d Cir. 1972) (emphasis in original), cert. dismissed, 413 U.S. 901, 93 S.Ct. 3058, 37 L.Ed.2d 1045 (1973). However, "[i]t is enough that the illegality is shown to be a material cause of the injury; a plaintiff need not exhaust all possible alternative sources of injury in fulfilling his burden of proving compensable injury under § 4." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9, 89 S.Ct. 1562, 1571, 23 L.Ed.2d 129 (1969); see Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183, 187 (2d Cir. 1970). The Court finds that Jetco succeeded in proving injury to its competitive position in the tire business caused by Uniroyal's wrongful termination of its dealership. As to the fact of damage, there was no dispute that the steady and substantial increase in Jetco's tire sales during the period from 1970 to 1973 ended abruptly after Uniroyal terminated the Jetco franchise. From 1970 to 1971, the tire sales increased between 11-12%; from 1971 to 1972, between 35-36%; and from 1972 to 1973, between 56-57%. In the year following the termination, Jetco's tire sales increased only between 2-3%, a minimal amount likely attributable to inflation.[4] Jetco also proved that the monetary loss it suffered was caused by the termination of its Uniroyal dealership. There was evidence that Jetco was forced to turn away customers in 1974 because it did not have Uniroyal tires to sell them. Specifically, Jetco lost the IBM account, from which it derived revenues approximating $500 per year. After loss of the Uniroyal franchise, Jetco expended substantial sums in advertising in order to change its image to that of a dealer of Michelin and General tires. Additionally, Gellar testified that Uniroyal tires have greater public acceptability and yield a greater profit margin to dealers than do these other brands. On the basis of these findings and other evidence produced 357 at trial, the Court concludes that Jetco was competitively injured by Uniroyal's illegal conduct.[5] Accordingly, Jetco is entitled to recover from Uniroyal three times the amount of damages it has suffered. The Donnelly Act Claim New York State's antitrust statute, referred to as the Donnelly Act, is contained in the New York General Business Law § 340 et seq. Section 340(1) provides: Every contract, agreement, arrangement or combination whereby A monopoly in the conduct of any business, trade or commerce . . . in this state, is or may be established or maintained, or whereby Competition or the free exercise of any activity in the conduct of any business, trade or commerce . . . in this state is or may be restrained or whereby For the purpose of establishing or maintaining any such monopoly or unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce . . . in this state any business, trade or commerce . . . is or may be restrained, is hereby declared to be against public policy, illegal and void. Subsection 5 of section 340 grants a private right of action to recover damages caused by a violation of the statute.[6] It is apparent that New York's Donnelly Act proscribes the same kind of conduct prohibited by the federal Sherman Act, and it has so been held. State v. Mobil Oil Corp., 38 N.Y.2d 460, 464, 381 N.Y.S.2d 426, 428, 344 N.E.2d 357-359 (1976).[7] Therefore, the Court's findings and conclusions as to Jetco's Sherman Act claim are equally applicable to its claim under the state statute. The Robinson-Patman Act Claim Congress sought to outlaw anti-competitive price discrimination when it enacted the Robinson-Patman Act, 15 U.S.C. § 13. The statute provides in pertinent part: (a) 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 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. . .. . . . . . (d) It shall be unlawful for any person engaged in commerce to pay . . . for . . . anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities. (e) It shall be unlawful for any person to discriminate in favor of one purchaser 358 against another purchaser ... of a commodity bought for resale ... by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms. See FTC v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196 (1948); Guyott Co. v. Texaco, Inc., 261 F.Supp. 942 (D.Conn. 1966) (Timbers, C. J.). At trial, Uniroyal attempted neither to rebut Jetco's claim of discriminatory discounts, allowances and services, nor to offer a cost justification defense. See 15 U.S.C. § 13(a). Instead, Uniroyal relied solely on its contention that Jetco did not and could not prove antitrust injury causally connected to the discriminatory conduct. Although finding more than adequate proof of Uniroyal's Robinson-Patman violations, the Court nonetheless denies Jetco relief on its discrimination claim for failure to satisfy the "injury" requirement of Clayton Act § 4, 15 U.S.C. § 15. There was uncontested evidence that Uniroyal violated its own regulations when it granted Intercity a Wholesale Distributors Allowance ["WDA"] on certain lines of tires without first ascertaining that at least 20% of the tires would be and were sold wholesale and by giving the allowance on all such tires rather than solely on the portion sold wholesale. Jetco, which did not have an at least 20% wholesale trade, did not qualify for and was not granted a WDA. Intercity also improperly received from Uniroyal quantity discounts, including the Volume Bonus and Large Order Discount. The Uniroyal Dealer Discount Schedule on Uniroyal Tires and Tubes (JX-89) permitted the Large Order Discount only "on orders placed for single shipment to a single destination," (JX-89 ¶ 12). Uniroyal, however, combined the purchases of Intercity's Wappingers Falls outlet with those of the Shrub Oaks outlet for the purpose of computing volume discounts even though such orders often involved delivery to more than one location. Both Ginsberg and Sullen stated that Uniroyal always prepaid the freight. Again, Uniroyal's own records reflect its policy of bearing transportation costs only when an order calls for one shipment to one destination. (JX-88; JX-89 ¶ 13). Intercity received further help from Uniroyal in qualifying for quantity discounts when Uniroyal provided free warehousing to Intercity prior to the opening of the Wappingers Falls store. There was finally much evidence concerning discriminatory advertising allowances. Whereas Intercity was granted allowances in excess of the limitations contained in Uniroyal's own regulations (JX-49), Jetco was kept well within the outside limits. (See JX-51, 52, 55, 59). The foregoing establishes prima facie violations of the Robinson-Patman Act, and Uniroyal has not met its burden of proving that the discriminations are not proscribed. See 15 U.S.C. § 13(b). "But there is no presumption that proscribed discrimination in price [or services] has caused damage to [Jetco]." Sano Petroleum Corp. v. American Oil Co., 187 F.Supp. 345, 353 (E.D.N.Y. 1960). Jetco's failure of proof of this critical element precludes it from entitlement to treble damages under Clayton Act § 4. There was much legal argument over the effect of cases such as Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), on the continuing viability of the Second Circuit's pronouncement in Enterprise Industries, Inc. v. Texas Co., 240 F.2d 457 (2d Cir.) (Learned Hand, J.), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957), that a Section 2(a) claimant must prove actual damage in order to recover under Clayton Act § 4. The court below had calculated damages by subtracting the discriminatory price from that charged plaintiff. The court of appeals found this erroneous and reversed. Unlike Enterprise Industries, Hanover Shoe was an "overcharge" case, that is, one in which the price paid by the claimant was illegally high in and of itself. Because the 359 plaintiff in such a case was wrongfully overcharged, he may recover the excess paid without regard to whether some other buyer, not overcharged, passed on the savings to his customers. According to Mr. Justice White: As long as the seller continues to charge the illegal price, he takes from the buyer more than the law allows. At whatever price the buyer sells, the price he pays the seller remains illegally high, and his profits would be greater were his costs lower. 392 U.S. at 489, 88 S.Ct. at 2229. Like Enterprise Industries, this case involves price discrimination, not overcharge.[8] Jetco was not overcharged; rather, Intercity was undercharged. There was nothing illegal about the discounts, allowances and services Uniroyal granted Jetco except in comparison to those it granted Intercity. Therefore, unless Intercity, "by virtue of [its] lower cost, lowered [its] resale price so that [Jetco] either lost sales volume (if [it] did not meet this competition) or lost profits (if [it] did not match the lower resale price)," M. Handler, Changing Trends in Antitrust Doctrine: An Unprecedented Supreme Court Term 1977, 77 Colum.L. Rev. 979, 993 (1977),[9] Jetco did not sustain antitrust injury sufficient to recover damages under Section 4 of the Clayton Act. The Court rejects any notion that damages may be presumed merely from the fact of discrimination. See Dantzler v. Dictograph Products, Inc., 309 F.2d 326 (4th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1097, 10 L.Ed.2d 133 (1963); Kelly v. General Motors Corp., 425 F.Supp. 13, 20 (E.D.Pa.1976); Krieger v. Texaco, Inc., 373 F.Supp. 108, 112-13 (W.D.N.Y.1973). Applicable, instead, is the general rule that recovery under Clayton Act § 4 requires proof of antitrust injury causally related to the particular violation alleged. Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969). There was no proof at trial that the favors accorded Intercity enabled it to lower its prices and that Jetco lost profits by meeting these reduced prices. Jetco met and beat Intercity's prices as part of the price war it waged with its new competitor. And, Jetco did not show that the sales it gained by meeting Intercity's competition fell short of the profits it lost by lowering its prices. Jetco cannot complain if Intercity generated greater profit by reason of its lower costs so long as Jetco did not lose profits it otherwise would have made. Nor did Jetco prove diversion of customers to Intercity by virtue of the discrimination. The loss of business in 1974 stemmed from Uniroyal's termination of Jetco's franchise, not from the special treatment accorded Intercity. Thus, the Court's finding that Jetco suffered damage caused by the Sherman Act § 1 violation does not help Jetco sustain its burden on this claim. The Common Law Claims Though not the thrust of its contentions at trial, Jetco succeeded in proving 360 that Uniroyal breached its Zeta Charter with Jetco (JX-9) when it granted Intercity's Wappingers Falls outlet an overlapping Charter area. Thus, Uniroyal is liable to Jetco for breach of contract. To the extent that Jetco's unfair competition claim differs in substance from those already discussed, the Court declines to reach it. CONCLUSION Pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, Jetco is entitled to recover from Uniroyal three times the damages actually suffered by reason of Uniroyal's Sherman Act § 1 violation, 15 U.S.C. § 1. Jetco is entitled to compensatory damages based upon Uniroyal's Donnelly Act violation and breach of contract. The precise amount of damages due Jetco shall be determined at a hearing before the Honorable Leonard A. Bernikow, United States Magistrate, unless the parties are able to compromise the issue. The foregoing constitute the findings of fact and conclusions of law of the Court pursuant to Fed.R.Civ.P. 52(a). SO ORDERED. NOTES [1] At the time of trial, Jetco abandoned its claim under Section 2 of the Sherman Act, 15 U.S.C. § 2. [2] "Blem" tires, or "blems," are first quality tires that have cosmetic defects. Tire companies, such as Uniroyal, sell them to dealers at greatly reduced prices as promotional specials. The dealers are able to pass on the savings to the public while still making a good profit and advertise "blem" specials to attract customers to their stores. [3] Jetco claims certain offsets to be determined at a later time. [4] At the close of trial, the Court reserved decision on the admissibility of four documents culled from the New York State Statistical Yearbook for 1977, marked collectively as Plaintiff's Exhibit 71 ("PX"-71), for identification. Subsequently, the parties were notified that these documents would not be considered by the Court. PX 71-A, entitled "Average annual civilian and labor force employed, and rate of unemployment by standard metropolitan statistical area as defined in 1973," is a tabulation prepared by the New York State Department of Labor and covers the years 1970 through 1975. PX 71-B is an Index of Business Activity, New York State, 1967-1975, compiled by the New York State Department of Commerce. PX 71-C is a document entitled "Area indexes of business activity, New York State," prepared by the New York State Department of Commerce and covering the years 1967 through 1975. PX 71-D identifies the standard metropolitan statistical areas by which the other data are broken down and was offered to show that Poughkeepsie is included within Dutchess County. The Court takes judicial notice of this last fact without the use of plaintiff's exhibit. PX-71 was offered to counter Jetco's contention that its decline in growth from 1973 to 1974 was caused by the termination of the Uniroyal dealership. Uniroyal hoped to prove, through these documents, that the economic decline suffered by Dutchess County generally was responsible for Jetco's arrested growth rate. Accepting the authenticity of the documents under Federal Rule of Evidence 902(5), the Court nonetheless rules them as inadmissible as not sufficiently probative of the precise issues before the Court, i. e., the economic health of the tire industry in Dutchess County and, more specifically, the causes of Jetco's arrested growth rate during the relevant period. [5] In this regard, the following comments of the Seventh Circuit are noteworthy: . . . [W]e are in a day and age in which the value of the nationally advertised franchise is a matter of general recognition. If [plaintiff] were deprived of the dealership (or franchise right) as a result of an illegal conspiracy, some damage would appear to be implicit. Fontana Aviation, Inc. v. Beech Aircraft Corp., 432 F.2d 1080, 1086 (7th Cir. 1970). [6] The 1975 amendment to subsection 5, L.1975, c. 333, § 1, eff. July 1, 1975, see McKinney Cum.Supp. 1977-78, permitting the recovery of "three-fold the actual damages sustained," does not apply to this action. [7] Consequently, according to the New York Court of Appeals, price discrimination per se does not fall within the purview of the Donnelly Act as it has never been considered within the scope of the Sherman Act. Id. at 462-64, 381 N.Y.S.2d at 427-28, 344 N.E.2d at 358-359. [8] Years earlier, and in a different context, Mr. Justice Cardozo had explained the dissimilarity in meaning and effect between overcharge and discrimination: Overcharge and discrimination have very different consequences and must be kept distinct in thought. When the rate exacted of a shipper is excessive or unreasonable in and of itself, irrespective of the rate exacted of competitors, there may be recovery of the overcharge without other evidence of loss. . . . But a different measure of recovery is applicable "where a party that has paid only the reasonable rate sues upon a discrimination because some other has paid less." . . . Such a one is not to recover as of course a payment reasonable in amount for a service given and accepted. He is to recover the damages that he has suffered, which may be more than the preference or less, . . . but which, whether more or less, is something to be proved and not presumed. . . The question is not how much better off the complainant would be today if it had paid a lower rate. The question is how much worse off it is because others have paid less. Interstate Commerce Comm'n v. United States, 289 U.S. 385, 390, 53 S.Ct. 607, 609, 77 L.Ed. 1273 (1933) (citations omitted). [9] According to Professor Handler, the Supreme Court's decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), reaffirms Enterprise Industries' teaching that automatic damages based upon price differential are not recoverable in a Robinson-Patman case. 77 Colum.L.Rev. at 992.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266207/	238 P.3d 832 (2008) LEONETTI (MICHAEL) v. DIST. CT. (HOLTHUS). No. 52131. Supreme Court of Nevada. September 25, 2008. Decision Without Published Opinion Petition Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266208/	461 F.Supp. 878 (1978) POLES, INC., W. F. Keegan & Co., Inc. v. Estate of William H. A. BEECKER (a/k/a William Beecker). Civ. A. No. 78-1843. United States District Court, E. D. Pennsylvania. October 19, 1978. 879 Nelson E. Kimmelman, Philadelphia, Pa., for plaintiff. James M. Peck, Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER HUYETT, District Judge. Plaintiffs Poles, Inc. ("Poles") and W. F. Keegan & Company, Inc. ("Keegan") are corporations organized under the laws of the Commonwealth of Pennsylvania; each has its principal place of business in Pennsylvania. The defendant is the Estate of William H. A. Beecker ("Beecker"). Beecker, formerly of New Britain and Chalfont, Pennsylvania, died May 29, 1975. The Estate is currently in probate in Bucks County. Plaintiffs brought this action under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1976) and 28 U.S.C. § 1338(a) (1976). They seek, inter alia, declaratory and injunctive relief to the effect that defendant's patent for tapered sectional support poles is invalid, that their actions do not infringe the patent, and that defendant may not threaten or maintain an infringement action against them or their customers for alleged infringement of the patent. Beecker has moved, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), to dismiss the complaint on the grounds that (1) plaintiffs' claims do not arise under the patent laws of the United States; (2) no "actual controversy" exists between the parties with respect to the validity of the patent; and (3) the complaint fails to state a claim upon which relief can be granted and is barred under the doctrine of laches. We agree with defendant that subject matter jurisdiction is lacking, and we dismiss the complaint for that reason. On September 6, 1966, Beecker was granted United States Patent 3,270,480, entitled Tapered Sectional Support Pole. On December 1, 1966, he entered into a license agreement with plaintiffs that gave Poles an exclusive license to manufacture poles covered by the patent and that gave Keegan the exclusive right to sell and distribute them. In exchange for the exclusive licensing arrangements, royalty payments to Beecker were provided for by the agreement. The terms of the agreement have subsequently been modified in ways not relevant to this case. The original agreement 880 specified conditions upon which Beecker could divest Poles of its exclusive license. The agreement made no provision, however, for the termination of the agreement with Beecker by the plaintiffs. Plaintiffs allege that Poles made royalty payments until approximately January 1, 1975.[1] They now allege, however, that the patent is "invalid, unenforceable and void" and that they brought this invalidity to the defendant's attention. Plaintiffs claim that in the face of these contentions, defendant allegedly "threatened suit against Poles and Keegan for royalties allegedly due under said License." Complaint ¶ 10. Plaintiffs now seek a declaratory judgment that the patent is invalid, that they are not infringing it, and that defendant is without right or authority "to threaten or to maintain suit against plaintiffs or their customers for alleged infringement of said Patent." We note initially that diversity of citizenship is not alleged as a basis for jurisdiction in this case. Therefore, if jurisdiction exists in this case, it must be based on 28 U.S.C. § 1338(a) (1976). That section provides that The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. Our inquiry must therefore focus on whether plaintiffs' claim "arises under" the patent laws. If it does not, it is not a case within our jurisdiction upon which we can issue declaratory relief. 28 U.S.C. § 2201 (1976). Suits for declaratory relief in the patent area can raise particularly vexing problems. We believe that our task in this case is made easier, however, by the guidance provided by the Third Circuit in Thiokol Chemical Corp. v. Burlington Industries, Inc., 448 F.2d 1328 (3d Cir. 1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972). In that case the court considered two rulings by the district court on motions to dismiss declaratory judgment actions between the same parties. In the first, Thiokol Chemical Corp. v. Burlington Industries, Inc., 313 F.Supp. 253 (D.Del.1970), aff'd, 448 F.2d 1328 (3d Cir. 1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972) (hereinafter Thiokol I) Judge Wright granted defendants' motion to dismiss. In that case, as in the instant action, jurisdiction was based on § 1338(a); there was no diversity of citizenship; a licensing agreement was in effect between the parties at the time suit was brought.[2] Judge Wright pointed out that the licensing agreement precluded a suit for infringement because "[t]here are three situations only when a licensee could be charged with infringement: (a) the allegedly infringing devices are not covered by the license; (b) the license has expired; or (c) plaintiff has repudiated the license." 313 F.Supp. at 255. Because none of these possibilities was present in the case before him, Judge Wright observed that "[t]he only action which the defendant could bring against the plaintiff at the time this litigation was commenced was a contract suit in the state court." Id. at 256. Given this posture of the case, the judge turned to the Supreme Court's language in Public Service Comm'n. v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 97 L.Ed. 291 (1952): 881 Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. 313 F.Supp. at 256, quoting Public Service Comm'n. v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 97 L.Ed. 291 (1952). Because the state action was for breach of contract, the controversy did not arise under the patent laws, and the district court lacked jurisdiction. The Third Circuit affirmed the dismissal of the complaint. Thiokol, supra, 448 F.2d at 1331. In the meanwhile, the defendants in Thiokol I filed suit in state court for royalties on the license, and the "licensing agreement was terminated under procedure provided by the agreement itself." Id. The licensee again filed in the district court for declaratory relief. In the second instance the defendants' motion to dismiss was denied. Thiokol Chemical Corp. v. Burlington Industries, Inc., 319 F.Supp. 218 (D.Del. 1970), aff'd with instructions, 448 F.2d 1328, cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 662 (1972) (hereinafter Thiokol II). In affirming the denial of the motion to dismiss, the Third Circuit noted that "[t]he termination of the license agreement removed the obstacle to federal jurisdiction that precluded the maintenance of the first suit." 448 F.2d at 1331. The distinction between the two motions in Thiokol therefore seems to be that the termination of the licensing agreement opened the licensee to a possible infringement suit, which would necessarily arise under the patent laws. Given a justiciable controversy between the parties concerning the patents' validity and infringement, the plaintiff's declaratory judgment action in Thiokol II was therefore properly cognizable by the district court. We believe that the case before us is controlled by the decision of the Third Circuit affirming Thiokol I. As in that case, there is no diversity of citizenship here; plaintiffs are protected from an infringement action by the licensing agreement; the only action defendant could bring against them is a suit on the license in state court. There is no allegation in the complaint that defendant has terminated the licensing agreement, or even threatened to do so. There is no allegation that defendant has threatened to sue for infringement. The most that defendant could do at the time this action was filed was to sue in state court, and plaintiff may not use the Federal Declaratory Judgment Act to establish a defense to a potential state claim. "[W]here diversity is lacking, a patent licensee's declaratory complaint which asserts patent invalidity simply to avoid the obligations of the license does not state a claim arising under the patent laws within the meaning of 28 U.S.C. § 1338(a)." Milprint, Inc. v. Curwood, Inc., 562 F.2d 418, 422 (7th Cir. 1977). Plaintiffs contend that Thiokol does not control this case, and that even if it were applicable to the facts of this case, its holding is against the weight of authority in other courts. Plaintiffs' first argument implies that by not paying royalties and by informing defendant of the alleged invalidity, plaintiffs have effectively terminated the licensing agreement. We note that the term of a license, if unspecified by the parties, is for the original term of the patent, but an express agreement of the parties to the contrary will control. 69 C.J.S. Patents § 252 (1951). In the absence of provisions for termination, a licensee cannot terminate the agreement without consent. United Mfg. & Service Co. v. Holwin Corp., 187 F.2d 902 (7th Cir. 1951); Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 176 F.2d 799 (1st Cir. 1949), aff'd, 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); Ohio Citizens Trust Co. v. Air-Way Electric Appliance Corp., 56 F.Supp. 1010 (N.D.Ohio 1944); Bassani Processes, Inc. v. Edward Stern & Co., 125 Pa.Super. 537, 189 A. 539 (1937). In any event, we do not believe that plaintiffs' actions are sufficient to confer federal jurisdiction. Rather, they merely serve to suggest the same fact pattern found in Thiokol I, which did not support jurisdiction. In that case, as in this one, plaintiff notified the licensor prior to commencing the declaratory action that it would make no further royalty payments. 882 Thiokol I, supra, 313 F.Supp. at 254. More significantly, in affirming the dismissal of the complaint in that case, the Third Circuit noted: Plaintiff suggests in its brief that defendants, relying on plaintiff's refusal to pay royalties as a repudiation of contract, might terminate the license and then move against plaintiff and its vendees as infringers. But there is no allegation or indication that defendants have proposed or threatened to follow that course. Thiokol, supra, 448 F.2d at 1330 n. 2. Similarly, there is no allegation in this case, nor does the affidavit of plaintiffs' counsel suggest, that defendant has threatened to terminate the licensing agreement and sue for infringement. The complaint specifies that the suit threatened was for royalties on the license. Complaint ¶ 10. We do not believe that plaintiffs have succeeded in taking this case out of the rule expounded in Thiokol. One factual distinction between this case and Thiokol I is that, although the license there had not been terminated, the power to terminate the license was not exclusively in the hands of the licensor. Here the licensee cannot terminate the license unilaterally. Plaintiffs argue that it would be unwise to find jurisdiction in Thiokol II, where the licensee had the ability to and did terminate the license, and deny it here. It may well be that when the parties negotiated the licensing agreement in this case that they did not realize the implications it might have for granting or denying federal jurisdiction in this situation, but the fact remains that the obstacle to federal jurisdiction noted in Thiokol was the existence of the licensing agreement, and an agreement is still in effect in this case. We do not believe that plaintiffs' inability to terminate the agreement unilaterally compels a different result on the jurisdictional question than was reached in Thiokol. To the extent that this difference does suggest that a different result might be appropriate, we decline to exercise our discretion in granting declaratory relief to carve an exception to Thiokol.[3] Plaintiffs point out that other courts have questioned the holding of Thiokol. See Hanes Corp. v. Millard, 174 U.S.App. D.C. 253, 531 F.2d 585 (1976). It is equally true, however, that other courts have relied on Thiokol. See Milprint, Inc. v. Curwood, Inc., supra. We note that the Third Circuit has not overruled Thiokol. See American Sterilizer Co. v. Sybron Corp., 526 F.2d 542, 549 n. 13 (3d Cir. 1975). We are obliged to follow it so long as it is the law of this Circuit. Plaintiffs have been given an opportunity to establish that federal jurisdiction does exist in this case. We do not believe, however, that its existence has been shown. The complaint will therefore be dismissed under defendant's Rule 12(b)(1) motion for lack of jurisdiction.[4] NOTES [1] Defendant contended in its memorandum and at oral argument that payments were made as recently as July, 1977. Resolution of this issue is not essential for our disposition of the motion. [2] At oral argument plaintiffs attempted to distinguish Thiokol I on the ground that there was a pending state court action in that case. We note that the state court action was instituted after the federal complaint in Thiokol I had been filed. There is no suggestion in the opinion of the district court dismissing the complaint, or in the opinion of the Third Circuit affirming that dismissal, that the existence of a state court action figured in any way in the decision to dismiss the complaint. We do not believe, therefore, that the absence of a state court suit in this case compels a finding of jurisdiction. [3] Plaintiffs contended at oral argument that policy arguments based on Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), require a finding of jurisdiction in this case. We cannot agree that Lear provides a basis for ignoring Thiokol since the Lear decision was discussed by both the district court and the Third Circuit in Thiokol. [4] For a discussion of the differences between 12(b)(1) and 12(b)(6) motions, see Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266166/	681 A.2d 1147 (1996) J. Leon WILLIAMS, Appellant, v. Berteen M. PATTERSON, Appellee. No. 95-CV-301. District of Columbia Court of Appeals. Argued June 4, 1996. Decided August 22, 1996. 1148 Gwendolyn D. Prioleau, Silver Springs, MD, for appellant. Gary C. Christian, Washington, DC, with whom Kenneth Shepard, Sacramento, CA, was on the brief, for appellee. Before FERREN, FARRELL, and RUIZ, Associate Judges. FARRELL, Associate Judge: In this suit for legal malpractice, a jury awarded Patterson $40,000 after finding that Williams, an attorney she had retained, negligently failed to take action within the three-year statute of limitations to preserve claims by Patterson arising from a 1985 automobile accident in which her car was struck in the rear by another vehicle. The jury found that the owner of the vehicle causing the accident was uninsured, thus enabling Patterson to sue for personal injury under the District of Columbia No-Fault statute in effect at the time of the accident, D.C.Code § 35-2105(b)(5) (1985 Supp.); and that Williams had negligently failed either to file suit against the driver or to file a claim with Patterson's own insurance company for uninsured motorist coverage before the statute of limitations expired. We reverse, because Patterson presented no expert medical testimony linking the injuries for which she claimed damages to the automobile accident, and in this case that defeated her proof of causation as a matter of law. I. On July 30, 1985, Patterson's car was struck in the rear by another car while she was waiting at a stop sign in Southeast Washington, D.C. Within a week of the accident, she hired appellant Williams to represent her in a claim for injuries. The jury heard evidence that Williams, before the relevant statute of limitations had expired, did not file suit against the other driver or file a claim with Patterson's insurance company despite learning early on that the owner of the other car was uninsured, thus permitting suit (and, by extension, recovery of uninsured motorist benefits) under the District of Columbia No-Fault Act of 1982.[1] Patterson released Williams as her attorney in 1989, and brought suit against him a year later. At trial Patterson testified that she had suffered back injuries and whiplash in the collision. She sought treatment initially from a Dr. Rones and a neurological surgeon, Dr. Sydney I. Green. She continued her medical care for several years and eventually had an operation for a herniated disc. The written summary of Dr. Green's neurological consultation, which took place two weeks after the accident, revealed that Ms. Patterson had had medical problems, including back trouble, dating from well before the July 1985 accident: The patient has an extensive history. She worked as a cook until she retired on social security disability in 1981 and this was because of back trouble. This was diagnosed as arthritis, though she has some mild knee complaints also, and she has never been able to return to her work. She attends a clinic in her home in North Carolina and they give her Feldine and Paraflex on an ongoing basis. She went to HUH in June of 1985 because of her back complaint and she was x-rayed there and given Tylenol # 3 pills and this is what she has been taking since this present accident. She also takes blood pressure pills, Catapres, 1.5 mgms, bid. In addition, she was eight days in HUH in July because of a blood clot condition and she has had three prior hospitalizations for this blood clot condition and has remained on chronic Coumadin medication, 12 mgms, daily, with blood levels checked every two weeks. In these blood clot formations she does not seem to have much swelling of the right leg. No complications from the therapy. In spite of all these troubles she has been quite active, driving not infrequently to the Washington area from Raleigh, North Carolina as she has a daughter and friends here. 1149 Dr. Green also reported that two days before he examined Ms. Patterson she had fallen backwards into an open shopping cart, resulting in "a three inch by three inch bruising" and slight tenderness, but no loss of muscle function. Dr. Green's diagnosis was of "[a] back strain as of 7-30-85 [the accident date] exacerbating a prior condition," and "[t]emporarily compounded now by this other fall." He said that Ms. Patterson "[s]hould continue with rest and to be careful not to have falls." In January 1986, Patterson consulted with Dr. Michael E. Batipps, a neurosurgeon. His written report also stated that she "has a long history of low back pain since her early teenage years" (she was then 49 years old) and that "[o]ver recent years, the pain has gradually increased in severity." Dr. Batipps noted that "[o]ne to two years ago" Patterson had been "admitted to D.C. General Hospital for traction," and was subsequently treated at a Rheumatology Clinic there and "told that she had `arthritis' of the lower back." He further described her self-report that since the July 1985 automobile accident she felt "that her back pain has been much worse and sharper,"[2] and she "had radiation of the pain to the left lower extremity for the first time." Following a neurological examination, Dr. Batipps stated his "Impression" as: 1. Chronic low back pain due to degenerative joint disease, aggravated by trauma. 2. Lumbosacral strain with possible left lumbosacral radiculopathy. 3. Cervical strain with possible right cervical radiculopathy. While noting in his "Comment" that Ms. Patterson "has had a long history of low back pain," Dr. Batipps stated that, "In reviewing this history carefully with her, the pain has been significantly affected by her automobile accident...." He recommended that she be evaluated "for herniated disc and nerve root compression." Several weeks later Dr. Batipps wrote that Patterson "continues to have chronic low back pain." It was his "feeling that this patient had underlying previously asymptomatic degenerative joint disease which became symptomatic following her injury." In addition, there appeared "to be a herniated disk [sic] at L5-S1," and he believed "that her symptoms are related to post traumatic lumbosacral strain and the associated herniated disk [sic]." In yet another misadventure, Ms. Patterson fell and broke her leg in early 1987 and was treated by Dr. Willie E. Thompson, an orthopedic specialist. During this treatment, Dr. Thompson determined that she "had lumbar disc disease" and "was also suffering from spondylolisthesis." As a result, in September 1987 Patterson underwent (in the words of Dr. Thompson's later report) "a decompressive laminectomy and a bilateral posterior lateral spinal fusion." Dr. Thompson was still treating Ms. Patterson in June of 1988 when, in a report, he summarized her condition partly as follows: Ms. Patterson gave a history of being involved in an automobile accident on July 30, 1985. She indicates that she had no problems with any significant back pain, prior to that injury. It is difficult to say if this is exactly the cause of her injury, but it certainly is possible. If she had no pain prior to such time as she had the accident, and this was followed by pain and discomfort, then it may be causatively related. At trial appellant Williams moved for a directed verdict and later judgment notwithstanding the verdict in part on the ground that Patterson had failed to present expert medical testimony on the issue of causation. The trial judge denied the motions and, in instructing the jury on damages with respect to the permanency of Patterson's injuries, stated: [I]n this case the plaintiff has offered some evidence that as a result of the auto accident, the plaintiff suffered personal injury with residual effects which persist at the present time. Although no physician or expert was called to give an opinion of the expected duration of the injury, from the 1150 facts and circumstances of the case and from the nature and duration of the injury, you may, if you believe the evidence, infer that the plaintiff has suffered a permanent injury. II. In this legal malpractice suit, Patterson could recover damages only if she proved, among other things, that the injuries she suffered (and for which her attorney assertedly neglected to take action) stemmed in part from the automobile accident. Williams makes several challenges to the jury verdict, but the issue on which we decide the case is whether Patterson's failure to present expert medical testimony on causation was fatal to her proof. We conclude that on the evidence presented it was. There is no inflexible requirement in a personal injury case that the plaintiff produce expert medical testimony on causation. "In the absence of `complicated medical questions,' the plaintiff's own testimony, without need for supporting expert medical testimony, will suffice to prove causation of injury." International Sec. Corp. of Va. v. McQueen, 497 A.2d 1076, 1080 (D.C.1985) (citation omitted). We explained in McQueen: No complicated medical question arises when: (1) the injury develops coincidentally with, or within a reasonable time after, the negligent act, or (2) the causal connection is clearly apparent from the illness [or injury] itself and the circumstances surrounding it, or (3) the cause of the injury relates to matters of common experience, knowledge, or observation of laymen. Id. (citations and internal quotation marks omitted). See also Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1231 (D.C.1988). But the converse is equally true: "[I]n cases presenting medically complicated questions due to multiple and/or preexisting causes, or questions as to the permanence of an injury, we have held that expert testimony is required on the issue of causation." Id. (citations omitted); see also Gray Line, Inc. v. Keaton, 428 A.2d 360, 362 (D.C.1981) (citation omitted). Patterson, of course, sought recovery for permanent injury (see the quoted jury instruction), but, more fundamentally, the evidence summarized above demonstrates an obvious "complication" in the causation issue presented in this case. Nearly all of the medical reports introduced in evidence described her injuries from the accident as having "exacerbat[ed]" or "aggravated" a preexisting back condition. "The law is settled that where an accident does not cause a diseased condition, but only aggravates and increases the severity of a condition existing at the time of the accident, such party could only recover for such increased or augmented sufferings as were the natural and proximate result of the negligent act." Baltimore & Ohio Railroad Co. v. Morgan, 35 App.D.C. 195, 200 (1910). See Borger v. Conner, 210 A.2d 546, 548 (D.C.1965) (case properly submitted to jury on expert medical testimony that preexisting "quiescent" condition was "very much aggravated by, and very much worsened by, the accident"). Aggravation, in other words, requires a jury to differentiate between a present medical condition and a preexisting one in evaluating the causal role of an intervening accident; only "increased or augmented sufferings" proximately resulting from the accident are compensable in court. The need for expert medical guidance in this evaluation becomes evident if we consider the following description of the analytic process: Resolution of the proximate cause issue depends on an analysis of each of the elements which make up proximate cause in the aggravation setting. These elements can be expressed as a series of subsidiary issues: (1) What was the plaintiff's actual physical or mental condition at the time of injury? (2) What was the plaintiff's actual physical or mental condition in the pertinent period following the accident? (3) To what extent, if any, would the pre-existing condition have worsened or otherwise become more symptomatic in the absence of trauma? 1151 (4) What was the nature of the impact of the alleged tortious act on the plaintiff's pre-existing status? (5) Can the plaintiff's condition at the time of trial be attributed wholly or partially to the incident which allegedly aggravated the pre-existing condition? The answer to issue (5) must be "yes" to permit liability to be imposed against the alleged tortfeasor for aggravation injuries, and the answer to that determinative issue rests on the analysis required to supply the answers to issues (1)-(4). M. Minzer, et al., Damages in Tort Actions, Vol. 2 § 15.32[4], at 15-71 to 15-72 (footnote omitted).[3] As these authors explain, the issue is even more complex when the accident is asserted to have caused permanent injuries: Such permanency in the aggravation setting, especially where the natural progression of the preexisting condition must be taken into account, will ordinarily not be obvious, thus requiring the testimony of medical witnesses to establish both the fact of a permanent aggravation and causation attributable to the defendant. Id. § 15.33[1], at 15-80. Here, the treating physicians were uniform in recognizing Ms. Patterson's long previous history of back problems and in stating (Drs. Green and Batipps) that the accident exacerbated or aggravated her preexisting medical condition. Moreover, the jury was called upon to consider evidence not just of a preexisting condition, but of the subsequent falls Patterson suffered (one resulting in a broken leg) before the herniated disc operation became necessary more than two years after the accident. In our judgment, the absence of expert medical testimony able to put all of this in perspective and still render an opinion favoring proximate causation "left [the jury] to speculate about a matter which frequently troubles even orthopedic specialists." Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753, 760 (1965). See also Rehnke v. Jammes, 283 Minn. 431, 168 N.W.2d 494, 497 (1969) ("It is within the peculiar expertise of the medical profession to assess the permanent damage [to the spine] which has been caused by each of successive accidents"). Patterson contends that the jury had the opinion of experts before it, in so many words, in the form of the medical reports prepared during her consultations, for example, in Dr. Batipps' conclusion that she "had underlying previously asymptomatic degenerative joint disease which became symptomatic following her injury" (emphasis added). But beyond the fact that none of these experts testified as a witness subject to cross-examination, none stated a conclusion within the legal and verbal framework of proximate causation. See Carmichael v. Carmichael, 597 A.2d 1326, 1330 (D.C.1991) (noting this court's "subtly different formulations for what is required of an expert opinion on causation," and that the expert "need not say the magical phrase of `reasonable medical certainty,'" but holding that "the content of the testimony must make it clear that the expert is doing more than merely speculating about causation"). The closest thing to a formal opinion in the written reports, Dr. Thompson's response to Patterson's assertion that she had had no significant back pain before the accident, is just the sort of "speculating about causation" that does not suffice: It is difficult to say if this [the accident] is exactly the cause of her injury, but it certainly is possible. If she had no pain prior to such time as she had the accident, and this was followed by pain and discomfort, then it may be causatively related. [Emphasis added]. We therefore reverse the judgment in favor of Patterson and remand with directions to enter a judgment for the defendant. So ordered. NOTES [1] That provision of the No-Fault Act has since been deleted. See D.C.Code § 35-2105 (1993 repl.). [2] Dr. Batipps noted that following the accident Patterson had been taken to the Capitol Hill Hospital where x-rays were "said to be negative except for arthritis," and that since November of 1985 she had been receiving treatment from a Dr. Theodore Watkins, who had referred her to Dr. Batipps. [3] We are not called upon to decide, of course, and do not, whether a jury must be instructed on aggravation in this detailed and schematic a fashion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266181/	461 F.Supp. 1187 (1978) BT INVESTMENT MANAGERS, INC. and Bankers Trust New York Corporation, Plaintiffs, v. Gerald A. LEWIS, Comptroller of the State of Florida and Commissioner of Banking of the State of Florida, Defendant. TCA 73-184. United States District Court, N. D. Florida, Tallahassee Division. December 15, 1978. 1188 1189 1190 John E. Mathews, Jr. and Stephen E. Day, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, Fla., for plaintiffs. Franklyn J. Wollett, Asst. Gen. Counsel, Tallahassee, Fla., for defendant. J. Thomas Cardwell, Akerman, Senterfitt & Eidson, Orlando, Fla., for amicus curiae. Before RONEY, Circuit Judge, ARNOW, Chief District Judge, and STAFFORD, District Judge. OPINION STAFFORD, District Judge. Plaintiffs Bankers Trust New York Corporation (BTNYC) and BT Investment Managers (BTIM) have brought this action seeking a declaration that Florida Statutes § 660.10 and a portion of Florida Statutes § 659.141(1) contravene the United States Constitution and for an injunction restraining their enforcement. Jurisdiction, which is not contested, is founded upon 28 U.S.C. §§ 1331 and 1343(3). This three-judge district court was convened pursuant to 28 U.S.C. § 2281.[1] The case was submitted to the court upon a stipulation of facts by the parties, and a final hearing was conducted on September 1, 1978. Upon consideration of the matters presented to the court, we hold that the challenged portion of Florida Statutes § 659.141(1), which prohibits a bank, trust company, or holding company that principally conducts its business outside the State of Florida from owning or controlling a business organization in this state which furnishes investment advisory services, violates the commerce clause, Article I, § 8, of the Constitution.[2] Similarly, we hold invalid under the commerce clause Florida Statutes § 660.10, which bars all corporations except banks and trust companies incorporated in Florida and national banks located in Florida from exercising various trust powers and duties in this state.[3] Since the determination that the 1191 subject statutes offend the commerce clause is sufficient to dispose of the controversy between the parties, we express no opinion as to the validity or invalidity of the statutes under any other constitutional theory proffered by plaintiffs.[4] BTNYC is a corporation organized under the laws of New York and is a "bank holding company" within the meaning of the Bank Holding Company Act, 12 U.S.C. § 1841, et seq. BTIM is a corporation organized under the laws of Delaware, and is a wholly-owned subsidiary of BTNYC. BTIM qualified to do business in Florida on November 27, 1972, and plans to locate an office in the city of Palm Beach, Florida. Defendant Gerald A. Lewis is the incumbent Comptroller and Commissioner of Banking of the State of Florida. The Florida Bankers Association (FBA or amicus) has been granted leave to appear in this action as amicus curiae to argue, along with defendant, in favor of the validity of the challenged statutes. The factual history of this litigation opens with the 1970 amendments to the Bank Holding Company Act, and specifically 1192 the amendment to § 4(c)(8) of the Act, 12 U.S.C. § 1843(c)(8). Prior to 1970 § 4(c)(8) provided that a bank holding company could not acquire ownership or control of any company which is not a bank or bank holding company, except for "any company all the activities of which are . . . of a financial, fiduciary, or insurance nature and which the Board [of Governors of the Federal Reserve System] . . . by order has determined to be so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto . . ." (emphasis added). The 1970 amendment to this provision, P.L. 91-607, Title I, § 103(4), 84 Stat. 1763, significantly expanded the statutory definition of activities deemed to be "so closely related to banking . . . as to be a proper incident thereto." Deleted from the statutory language was the former limitation to activities of a "financial, fiduciary, or insurance nature." Following the amendment bank holding companies were authorized to own or control any company the activities of which the Board . . . has determined (by order or regulation) to be so closely related to banking or managing or controlling banks as to be a proper incident thereto. In determining whether a particular activity is a proper incident to banking or managing or controlling banks the Board shall consider whether its performance by an affiliate of a holding company can reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh possible adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices. In orders and regulations under this subsection, the Board may differentiate between activities commenced de novo and activities commenced by the acquisition, in whole or in part, of a going concern. 12 U.S.C. § 1843(c)(8). The statute grants the Board of Governors of the Federal Reserve System authority to adopt regulations more specifically defining those business activities "so closely related to banking . . . as to be a proper incident thereto." The Board has determined that [p]erforming or carrying on any one or more of the functions or activities that may be performed or carried on by a trust company" and "[a]cting as investment or financial advisor" are such activities. 12 C.F.R. § 225.4(a)(4) & (5).[5] 1193 Acting on the basis of the post-1970 federal bank holding company statutes and regulations, BTNYC applied to the Board of Governors of the Federal Reserve System on October 3, 1972, for authority indirectly to engage de novo in the performance of investment advisory services through its subsidiary BTIM, at an office to be located in Palm Beach, Florida. While the application was pending, the Florida Legislature, convened in special session for the purpose of considering matters unrelated to this lawsuit, also passed a bill amending Florida Statutes § 659.141(1) in such a manner as to remove BTNYC's right under state law to engage in the investment advisory business in Florida. Laws of Florida 1972, ch. 72-726. It is apparent that the bill was hurriedly enacted at the instance of the FBA and defendant's predecessor in office in response to BTNYC's application; the Board so found,[6] and defendant and the FBA have offered no evidence to the contrary. Until passage of the amendment to § 659.141(1), that statute forbade any "bank, trust company or holding company, the operations of which are principally conducted outside [Florida]" from acquiring control over "any business organization having a place of business in [Florida] where or from which it furnishes investment advisory services to trust companies or banks in [Florida]" (emphasis added). The amended statute eliminated all reference to trust companies or banks, thereby extending the prohibition on the furnishing of investment advice to the giving of advice to any person from a place of business located in this state. On April 26, 1973, the Board issued an order rejecting BTNYC's application. The Board's reasoning bears partial recitation here: Absent the recent enactment of amendments to section 659.141 and any evidence indicating that de novo entry in this case would have the purpose or effect of foreclosing future competition or would otherwise be contrary to the public interest, it appears likely that the Board would have approved the instant proposal. The Board recognizes, as has Congress, "that an activity commenced de novo will tend to have pro-competitive effects, and consequently should be viewed more favorably than the commencement of an activity through the acquisition of an existing concern" and "where a bank holding company enters a new market de novo . . ., its desire to succeed in its new endeavor is more likely to be competitive". However, while the instant proposal was pending before the Board, the Florida Statutes were amended to generally prohibit the provision of investment advisory services in Florida by non-Florida-based bank holding companies through control of business organizations having offices in Florida. Federal Reserve Board Order of April 26, 1973, 59 Fed.Res.Bull. 364, 365 (1973). Under the authority of Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965), and § 7 of the Bank Holding Company Act, 12 U.S.C. § 1846, the Board concluded that it was required to deny BTNYC's proposal on the ground that it was prohibited by state law. Subsequent to the Board's order plaintiffs filed this lawsuit. Count I of the complaint asks for declaratory and injunctive relief against the operation of § 659.141(1). Count II seeks identical relief against the joint operation of §§ 659.141(1) and 660.10, which together prevent BTNYC from operating a subsidiary trust company in the State of Florida. Concerning Count II, the complaint alleges, and the parties to this lawsuit have stipulated, that, But for the existence of the challenged statutes, Bankers Trust New York Corporation would have applied to the Board of Governors of the Federal Reserve System, pursuant to 12 U.S.C. § 1843(c)(8) and 12 C.F.R. § 225.4(b)(1), for authority to engage, through a subsidiary trust 1194 company having a national bank charter or a Florida state charter, in the activity of performing or carrying on at a place of business in Florida one or more of the functions or activities that may be performed or carried on by a trust company in the manner authorized by Florida law but without the power to accept demand deposits or make commercial loans; and would have organized such a trust company under the laws of the United States or the State of Florida. Stipulation filed May 11, 1978, at 2-3. The parties have further stipulated that the "enforcement, or threatened enforcement" of §§ 659.141(1) and 660.10" has caused [BTIM and BTNYC] injury, loss of potential profits and loss of opportunity for corporate gain." Id. at 3. Turning to the merits of the present controversy, it is necessary initially to dispose of the threshold question whether the business activities prohibited by §§ 659.141(1) and 660.10 constitute interstate commerce. Defendant insists that since the challenged statutes merely forbid foreign corporations from doing business in this state, only intra -state commerce is affected.[7] This claim is unconvincing. While the phrase "interstate commerce" does not "comprehend that commerce, which is completely internal, . . . and which does not extend to or affect other states," Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194, 6 L.Ed. 23 (1824), the notion of what is "completely internal" traditionally has been strictly and narrowly confined. For a business activity to come within the scope of the commerce clause, it need only have a substantial effect on interstate commerce. See Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). As long as such an effect on interstate commerce is shown to exist, it is immaterial whether the activity in question is itself either wholly or primarily intrastate in nature. The necessary effect on interstate commerce has been demonstrated here even though no direct evidence to prove such an effect has been presented.[8] This conclusion is compelled, first, because of the pervasive range of federal regulation of bank holding companies and their subsidiaries through the powers vested in the federal government under the commerce clause. This extensive regulation must constitutionally be founded upon a nexus between the provision of financial services and commerce between the states. No party to this case has contended that the connection to interstate commerce of the activities involved here is so insubstantial as to rob Congress of its authority to regulate in this field.[9] Second, the complaint alleges, and plaintiffs have contended throughout the instant proceedings, that they desire to engage in interstate commerce and that the very nature of the business they seek to conduct in Florida would necessarily implicate a substantial volume of interstate trade and communications. The typical clients plaintiffs intend to serve in the Palm Beach office of 1195 BTIM are persons vacationing in Florida who during the bulk of the year rely on BTNYC to handle their investment portfolios and who would likely wish to obtain investment advice during vacation from a Florida office of the same company. These, of course, are people who have crossed state lines in order to reach Florida. Even more significantly, the investment services rendered by plaintiffs would in the due course of business affect the stocks and securities of numerous corporations. The continual use of interstate and international mail, telephone, and wire communications would also be a necessary part of plaintiffs' business. Taken together, these probable incidents of plaintiffs' proposed activities more than demonstrate that interstate, as well as intrastate, commerce would be affected. The essential disputes between the parties as to the commerce clause issue are as follows. Plaintiffs charge that §§ 659.141(1) and 660.10 are blatantly undisguised protectionist measures designed to shield Florida banking, trust and investment advisory firms from free competition with foreign businesses. Consequently, plaintiffs assert, the statutes discriminate against and unduly burden interstate commerce in violation of the commerce clause. Defendant and the FBA deny this claim and insist that §§ 659.141(1) and 660.10 serve significant and legitimate local interests justifying any possible burden upon interstate commerce. Furthermore, defendant and the FBA place great reliance on certain provisions of the Bank Holding Company Act which are claimed to affirmatively approve state prohibitions upon the entry into local markets of foreign bank holding companies and their subsidiaries. The general constitutional principles governing a claim of interference with interstate commerce are well established. Although the commerce clause grants Congress the authority "[t]o regulate Commerce . . . among the several States," it has long been understood that, in the absence of conflicting federal legislation on a subject of potential regulation, the states retain a "residuum of power" to adopt their own regulations concerning that subject. Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945). See also Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). That power, however, must be exercised within the restraints imposed by the commerce clause, Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475, 481 (1978); Raymond Motor Transportation v. Rice, 434 U.S. 429, 439, 98 S.Ct. 787, 793, 54 L.Ed.2d 664, 674 (1978), and must not be used to create barriers to the free passage of interstate commerce, Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851); Raymond Motor Transportation, supra. Thus, "in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause where local and national powers are concurrent the [federal courts] in absence of congressional guidance [are] called upon to make `delicate adjustment of the conflicting state and federal claims' H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 553, 69 S.Ct. 657, 93 L.Ed. 865 (Black, J., dissenting)." A & P Tea Co. v. Cottrell, 424 U.S. 366, 371, 96 S.Ct. 923, 929, 47 L.Ed.2d 55 (1976). The guiding principles for effecting the necessary accommodation or balancing between competing national and state interests in light of the purposes of the commerce clause are best stated as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 4 L.Ed.2d 852, 78 A.L.R.2d 1294. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. 1196 Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). See also Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976); A & P Tea Co. v. Cottrell, supra. An entirely dissimilar set of considerations come into play, however, where it appears a state statute is no more than discriminatory protectionist legislation designed to promote local business to the exclusion of interstate competition and commerce. As to regulations of this nature, the Supreme Court has flatly stated that "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475, 481 (1978) (emphasis added), citing Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948); Baldwin v. G. A. F. Seelig, 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623 (1925). This inflexible rule is applied in order to make meaningful the constitutional concept of the United States as an economic whole, rather than a feuding collection of economically Balkanized states. As expressed in Hood & Sons v. Du Mond, supra: This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. 511, 527, 55 S.Ct. 497, 79 L.Ed. 1032, "what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation." 336 U.S. at 537-38, 69 S.Ct. at 665. Accordingly, the chief inquiry in the instant case is whether §§ 659.141(1) and 660.10 are "basically . . . protectionist measure[s], or whether [they] can fairly be viewed as law[s] directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." Philadelphia v. New Jersey, 437 U.S. at 624, 98 S.Ct. at 2536, 57 L.Ed.2d at 482. The record here, though sparse, is sufficient to indicate conclusively the discriminatory nature of the statutes under attack. By its terms Section 659.141(1) erects an insuperable barrier to the entry of foreign-based bank holding companies, through their subsidiaries, into the Florida investment advisory market. Section 660.10 similarly cordons off Florida trust companies from competition by out-of-state concerns. Thus, according to Philadelphia v. New Jersey, supra, this parochial legislation must be deemed per se unconstitutional. Defendant and the FBA argue strenuously, however, that the statutes are justified by an overriding legislative purpose of furthering competition by preventing economically powerful out-of-state banking interests from gaining a stranglehold on the Florida market. The FBA, for example, contends the Florida Legislature, in amending § 659.141(1), "took action designed to attain the legitimate goal of protecting the public from the threat posed by the accumulation and concentration of economic power." Reply Memorandum of Law of Amicus Curiae, at 10. Doubtlessly, regulatory statutes seeking to curb anticompetitive abuses are within the proper exercise of the general police powers of the State of Florida. We cannot agree, however, that the mere invocation of this legitimate interest, without more, is sufficient to save discriminatory legislation of the type we deal with here.[10] 1197 Contentions based upon the legislative purpose motivating passage of the statutes must fail primarily because they are irrelevant once the discriminatory character of a state regulation is established. In Philadelphia v. New Jersey, supra, Mr. Justice Stewart recited the principle that [T]he evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous competition . . . or to create jobs by keeping industry within the State, . . . or to preserve the State's financial resources from depletion by fencing out indigent immigrants. . . . In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy. 437 U.S. at 625, 98 S.Ct. at 2537, 57 L.Ed.2d at 483-84 (citations omitted). Here, it is amply evident that, even if the motive of the Florida Legislature was to promote competition in this state in the affected businesses, the means chosen for doing so are impermissible. There is no evidence to suggest that foreign banks and bank holding companies or companies which principally conduct their business outside the state constitute any more of a threat to free competition in Florida than firms located in this state. The available evidence, in fact, is directly to the contrary, at least as far as § 659.141(1) is concerned. The Board of Governors of the Federal Reserve System determined that, if it were not for the amendment of § 659.141(1), BTNYC's application to engage in the investment advisory business through its subsidiary BTIM would have been approved. By law, this determination may only have been made upon a finding by the Board that the business activity sought to be performed by plaintiffs could "reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh possible adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interest, or unsound banking practices." 12 U.S.C. § 1843(c)(8). The Board specifically found there was no evidence plaintiffs' entry into the investment advisory field would harm competition and concluded that plaintiffs' proposed business would tend to have pro-competitive effects. 59 Fed.Res.Bull. at 365. Florida unquestionably may act by legislation to control or prevent undue concentrations of economic power in the banking, investment and trust businesses. In order not to run afoul of the commerce clause, though, this legislation must impact evenhandedly upon in-state and out-of-state firms alike. Sections 659.141(1) and 660.10 place the full weight of the purported state concern for competition upon foreign companies, leaving unchecked any possible abuses 1198 by Florida companies. Where, as here, there is no evidence beyond simple speculation that foreign companies pose any greater danger to competition than do Florida firms, the former may not be singled out for prohibition. Defendant and the FBA have not attempted to demonstrate that nondiscriminatory alternatives to the statutes challenged here would be unavailable or ineffective, A & P Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951); indeed, the State of Florida possesses broad authority under its police powers to regulate the business activities of both Florida and non-Florida companies in this state to ensure that competition is fostered. Moreover, the record is replete with indications that the legislative intent behind § 659.141(1), if not § 660.10, was to discriminate against interstate commerce. While no official record of legislative history or statement of legislative purpose accompanied the passage of either statute, the order of the Board of Governors of the Federal Reserve System in this case recounts the telling circumstances under which the bill amending § 659.141(1) was passed. The Board stated, "There appears to be tacit agreement that the recently-enacted legislation was intended to, and does, prohibit the performance of investment advisory services in Florida by non-Florida bank holding companies." 59 Fed.Res.Bull at 365.[11] The Board further determined that, "It is beyond question, and BTNYC and the protestants are in agreement, that the notice that BTNYC published in September, 1972, triggered the action of the Florida legislature in this case and that the newly-enacted legislation was primarily motivated by the threat of BTNYC's entry into the Florida investment advisory markets and was intended to prevent such entry." 59 Fed.Res.Bull. at 366. The Board also found that the legislation had been passed at the urging of the FBA and defendant's predecessor in office, a highly significant circumstance in determining whether discrimination against interstate commerce exists. As expressed in Hunt v. Washington State Apple Advertising Comm'n, supra: Despite the statute's facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission's request for an exemption following the statute's passage in which he indicated that before he could support such an exemption he would "want to have the sentiment from our apple producers since they were mainly responsible for this legislation being passed . . .." 432 U.S. at 352, 97 S.Ct. at 2446 (emphasis added). The final argument interposed by defendant and the FBA in favor of the validity of §§ 659.141(1) and 660.10 is that Congress, through certain provisions of the Bank Holding Company Act, 12 U.S.C. § 1841 et seq., has affirmatively consented to Florida's prohibition on the entry of foreign bank holding companies and their subsidiaries into this state. It has long been held that Congress, under its powers over interstate commerce, may legitimately approve regulations by the states that would otherwise violate the commerce clause. See, e. g., Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946). Defendant and the FBA specifically rely here upon 12 U.S.C. §§ 1842(d) and 1846 as constituting congressional authority for the discriminations against interstate commerce effected by the state laws being challenged. Of the two federal statutes, § 1846 is the more easily disposed of. It provides: 1199 The enactment by the Congress of the Bank Holding Company Act of 1956 shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with respect to banks, bank holding companies, and subsidiaries thereof. This language accomplishes nothing more than to assure that the states will not be deemed dispossessed of whatever regulatory authority they exercised over banks and bank holding companies prior to passage of the Bank Holding Company Act. In no wise does it pass on to the states the power to adopt regulations on any subject which would otherwise be contrary to the commerce clause. The remarks of the Fifth Circuit in the recent case of Great Western United Corp. v. Kidwell, 577 F.2d 1256 (5th Cir. 1978), are both instructive and dispositive: When Congress has exempted state laws from commerce clause restrictions it has used language specifically directing that certain interstate commerce may be regulated as though it were purely local. See, e. g., the Wilson Act of 1890, 26 Stat. 313. Congress had also stated that, in the absence of affirmative Congressional action, courts should impose no barriers on state regulation. See the McCarran-Ferguson Act, 59 Stat. 33, 15 U.S.C. § 1011 et seq. The language in § 28 of the 1934 Act is notably different from these acknowledged examples of Congressional consent. Rather than allowing violations of the commerce clause, § 28 appears to direct only that federal securities law should not be interpreted as a wholesale displacement of state securities regulation. Id. at 1281. Similarly, 12 U.S.C. § 1846 does not explicitly speak to exempting state banking and bank holding company regulations from the limitations of the commerce clause, and no such exemption should be read into the statute by this court. Section 1842(d) of Title 12 is of no greater avail to defendant and amicus than is § 1846. That section reads: (d) Limitation by State boundaries. Notwithstanding any other provision of this section, no application shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company's banking subsidiaries were principally conducted on July 1, 1966, or the date on which such company became a bank holding company, whichever is later, unless the acquisition of such shares or assets of a State bank by an out-of-State bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication. For the purposes of this section, the State in which the operations of a bank holding company's subsidiaries are principally conducted is that State in which total deposits of all such banking subsidiaries are largest. By its terms § 1842(d) prohibits a bank holding company from acquiring an additional bank in any state in which the business of its subsidiaries is not principally conducted. It does not specifically consent to any state's attempt to bar out-of-state bank holding companies from acquiring other companies within that state which are engaged in activities "so closely related to banking or managing or controlling banks as to be a proper incident thereto," within the meaning of 12 U.S.C. § 1843(c)(8). Defendant and amicus argue, however, that the ability to prohibit the acquisition of banks within a particular state must necessarily carry with it the ability to prohibit the acquisition of companies involved in closely related activities. Otherwise, they claim, a "loophole" would be created allowing bank holding companies to expand their operations into non-consenting states despite the congressional mandate giving the states power to exclude them. Defendant and the FBA draw support from the original congressional purpose behind enactment of the Bank Holding Company Act in 1956, that being to limit the concentration 1200 of economic power in the hands of bank holding companies. See Alabama Ass'n of Insurance Agents v. Board of Governors, 533 F.2d 224, 231 (5th Cir. 1976). This argument disregards both the plain meaning of the statute and the most recent expressions of congressional intent. The legislative histories of the Bank Holding Company Act and the 1966 and 1970 amendments to the Act contain nothing to support the conclusion that a state's authority to forbid foreign companies from acquiring banks within that state includes the right also to forbid them from acquiring companies offering services closely related to banking. Moreover, although defendant and amicus are correct concerning the general intent of the Act (preventing the concentration of financial power by bank holding companies), the purpose of the 1970 amendments runs counter to their arguments. The 1970 amendments permit a bank holding company to obtain "any company the activities of which . . . are so closely related to banking . . . as to be a proper incident thereto," and not just companies "all the activities of which are of a financial, fiduciary, or insurance nature," as the Act provided prior to 1970. The congressional history of the amendments makes clear that Congress in 1970 intended to expand the range of business activities in which bank holding companies could engage, giving them greater flexibility and latitude. See National Courier Association v. Board of Governors, 170 U.S.App. D.C. 301, 308-09, 516 F.2d 1229, 1236-37 (1975); Chase, The Emerging Financial Conglomerate: Liberalization of the Bank Holding Company Act, 60 Geo.L.J. 1225 (1972); Comment, Implementation of the Bank Holding Company Act Amendments of 1970: The Scope of Banking Activities, 71 Michigan L.Rev.1970 (1973); Legislation Note, The Bank Holding Company Act Amendments of 1970, 39 Geo.Wash.L.Rev. 1200 (1971). The Florida statutes at issue here, by drastically curtailing the rights of foreign bank holding companies and their subsidiaries to engage in banking-related businesses in this state, are at least inconsistent with, if not contrary to, the desires of Congress. In addition, it is difficult to read § 1842(d), which specifically consents only to state prohibition of the acquisition of banks by out-of-state holding companies, as authorizing prohibition of the acquisition of banking-related businesses. "Bank", as used in the Bank Holding Company Act, is a term of art with a definite meaning: "Any institution . . . which (1) accepts deposits that the depositor has a legal right to withdraw on demand, and (2) engages in the business of making commercial loans." 12 U.S.C. § 1841(c). If Congress had intended to allow state prohibition of the acquisition of non-banking subsidiaries, it could easily have so provided; since § 1842(d) refers only to "banks," the plain meaning of its language must prevail. Thus, § 1842(d) contains no authority for concluding that a state may bar foreign bank holding companies from acquiring non-banking subsidiaries, as well as banks, within its jurisdiction. In holding that Florida Statutes § 660.10 and a portion of Florida Statutes § 659.141(1) are unconstitutional, we intend no disparagement of the traditional authority of Florida and all other states under their police powers to fairly and evenhandedly regulate banks, bank holding companies, trust companies and like financial institutions. As amicus has so vigorously pointed out, the banking trade historically has been subject to a system of dual federal and state regulation, a system which Congress has endeavored to preserve over the years. Sections 1842(d) and 1846 of Title 12, and similar laws, represent the statutory embodiment of this national policy. Nevertheless, when Congress, in the exercise of its paramount authority over commerce, has not explicitly countenanced the type of overt discrimination against interstate commerce involved in this case, the judiciary must intervene in order to ensure that the freedom of trade between the states guaranteed 1201 by the commerce clause is protected.[12] Accordingly, an order will issue declaring that Florida Statutes § 660.10 and the affected portion of Florida Statutes § 659.141(1) are invalid as violative of the commerce clause and enjoining the further enforcement of § 659.141(1) against plaintiffs. Since plaintiffs have yet to attempt to establish a trust company subsidiary in Florida, injunctive relief barring the enforcement of Florida Statutes § 660.10 would be premature, and therefore inappropriate, at this time. NOTES [1] This action was filed on October 24, 1973, and thus the propriety of empanelling a three-judge court was unaffected by the repeal of 28 U.S.C. § 2281 in 1976. Pub.L. 94-381, Aug. 12, 1976, 90 Stat. 1119. [2] The pertinent portion of Florida Statutes § 659.141(1) provides: (1) Except as provided in subsection (3) of this section, no bank, trust company, or holding company, the operations of which are principally conducted outside this state, shall acquire, retain, or own, directly or indirectly, all or substantially all the assets of, or control over, any bank or trust company having a place of business in this state where the business of banking or trust business or functions are conducted, or acquire, retain, or own all or substantially all of the assets of, or control over, any business organization having a place of business in this state where or from which it furnishes investment advisory services in this state. [3] Florida Statutes § 660.10 provides: All corporations except banks and trust companies incorporated under the laws of this state and having trust powers and except national banking associations located in this state and having trust powers, are prohibited from exercising any of the powers or duties and from acting in any of the capacities, within this state, as follows: (1) As executor or administrator of the estate of any decedent, whether such decedent was a resident of this state or not, and whether the administration of the estate of such decedent be original or ancillary; provided, that if the executor or administrator of the estate of a nonresident decedent be a corporation duly authorized, qualified and acting as such executor or administrator in the jurisdiction of the domicile of the decedent, it may, as a foreign executor or administrator perform such duties and exercise such powers and privileges as are required, authorized or permitted by s. 734.30. (2) As guardian of any infant, insane person or person physically or mentally incompetent whether domiciled in this state or not. (3) As trustee under any will or other testamentary instrument, provided any corporation that is authorized to act as trustee under the laws of the place where it has its principal place of business may receive bequests as trustee of money or intangible personal property and devises of real property located in Florida and may sell, transfer and convey the property. (4) As trustee of any real estate in this state or any interest therein under any agreement whereby the beneficial interest in such property is vested in others. (5) As trustee under any deed of trust or other instrument executed after June 10, 1937, conveying or encumbering any real or tangible personal property in this state given to secure bonds or other evidence of indebtedness unless in such deed of trust or other instrument a trust company or bank having trust powers and located in this state or an individual residing in this state shall be named as cotrustee; and no suit shall be brought to foreclose any such deed of trust or other instrument unless such cotrustee or successor cotrustees of like qualifications be a party plaintiff. (6) As receiver or trustee under appointment of any court in this state. (7) As assignee, receiver or trustee of any insolvent person or corporation or under any assignment for the benefit of creditors. (8) As fiscal agent, transfer agent or registrar of any municipal or private corporation, provided that this prohibition shall not be so construed as to prevent banks and trust companies not located in this state from acting within the state where located as fiscal agent, transfer agent or registrar of municipal or private corporations of this state; provided further, however, that nothing herein shall prevent any Florida corporation not a bank or trust company and not having trust powers from being its own fiscal agent, transfer agent or registrar concerning its own affairs, stock or securities. Provided, however, that nothing in this section or in any other law of this state shall be construed to prohibit a foreign bank or foreign trust company as trustee of any charitable foundation or endowment, employees' pension, retirement or profit-sharing trust, alone or together with a cotrustee from: Contracting in this state or elsewhere with any person to acquire from such person a part or the entire interest in a loan which such person proposes to make, has heretofore made or hereafter makes, together with a like interest in any security instrument covering real or personal property in the state proposed to be given or hereafter or heretofore given to such person to secure or evidence such loan; servicing directly or entering into servicing contracts with persons, and enforcing in this state the obligations heretofore or hereafter acquired by it in the transaction of business outside of this state or in the transaction of any business authorized or permitted hereby; or acquiring, holding, leasing, mortgaging, contracting with respect to, or otherwise, protecting, managing, or conveying property in this state which has heretofore or may hereafter be assigned, transferred, mortgaged or conveyed to it as security for, or in whole or in part in satisfaction of, a loan or loans made by it or obligations acquired by it in the transaction of any business authorized or permitted hereby; provided, further, that no such foreign bank or trust company shall be deemed to be transacting business in this state, or be required to qualify so to do, or to be unlawfully exercising powers or duties or acting in an unlawful or prohibited capacity or to be violating any of the provisions of this section or of any other law of this state, solely by reason of the performance of any of the acts of business hereinbefore permitted or authorized hereby; and provided, further, that nothing herein shall be construed as authorizing or permitting any foreign bank or trust company to maintain an office within this state. It should be noted that both Florida Statutes § 660.10 and Florida Statutes § 659.141 are affected by the Florida Regulatory Reform Act of 1976, Florida Laws 1976, ch. 760178, Florida Statutes § 11.61, and are slated to be repealed effective July 1, 1980, unless the Legislature decides prior to January 1, 1980 to retain them. [4] In addition to the commerce clause the complaint alleges three other constitutional grounds upon which the statutes are said to be invalid: (1) denial of equal protection; (2) denial of substantive due process; and (3) violation of the supremacy clause, Article VI, clause 2. Plaintiffs abandoned reliance on the last two of these contentions prior to the final hearing in this case. [5] 12 C.F.R. § 225.4(a)(4) & (5) provides in relevant part: (a) . . . The following activities have been determined by the Board to be so closely related to banking or managing or controlling banks as to be a proper incident thereto: . . . (4) Performing or carrying on any one or more of the functions or activities that may be performed or carried on by a trust company (including activities of a fiduciary, agency, or custodian nature), in the manner authorized by Federal or State law, so long as the institution does not make loans or investments or accept deposits other than (i) deposits that are generated from trust funds not currently invested and are properly secured to the extent required by law, or (ii) deposits representing funds received for a special use in the capacity of managing agent or custodian for an owner of, or investor in, real property, securities, or other personal property, or for such owner or investor as agent or custodian of funds held for investment or escrow agent, or for an issuer of, or broker or dealer in securities, in a capacity such as paying agent, dividend disbursing agent, or securities clearing agent, and not employed by or for the account of the customer in the manner of a general purpose checking account or bearing interest, or (iii) making of call loans to securities dealers or purchase of money market instruments such as certificates of deposit, commercial paper, government or municipal securities, and bankers acceptances (such authorized loans and investments, however, may not be used as a method of channeling funds to nonbanking affiliates of the trust company); (5) Acting as investment or financial adviser to the extent of (i) serving as the advisory company for a mortgage or a real estate investment trust; (ii) serving as investment adviser, as defined in section 2(a)(20) of the Investment Company Act of 1940, to an investment company registered under that Act; (iii) providing portfolio investment advice to any other person; (iv) furnishing general economic information and advice, general economic statistical forecasting services and industry studies, and (v) providing financial advice to State and local governments, such as with respect to the issuance of their securities. [6] See Federal Reserve Board Order of April 26, 1973, 59 Fed.Res.Bull. 364, 366 (1973). [7] The FBA does not join in this contention, and its memoranda of law appear to concede that matters involving interstate commerce are at issue in this litigation. [8] The absence of direct evidence is attributable to the fact that the challenged statutes forbid plaintiffs from engaging in business, and thus there is no factual background to demonstrate what the actual effect of plaintiffs' proposed activities on interstate commerce would be. [9] Katzenbach v. Morgan, Wickard v. Filburn, and most other cases which hold that a business activity need only have a "substantial effect" on interstate commerce in order to come within the parameters of the commerce clause have dealt with the permissible extent of federal regulation. It might be questioned whether the commerce clause ought to be accorded a more confined scope where the issue at hand is whether to restrict or forbid state regulation of the incidents of commerce, thus allowing the states greater legislative leeway. The Supreme Court, in Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531, 2534-35, 57 L. Ed.2d 475, 480-81 (1978), specifically rejected this "two-tiered definition" of commerce. The court there concluded that the states are subject to "constitutional scrutiny" whenever they attempt to enter any regulatory field in which Congress has power to regulate under the commerce clause. Id. at 622, 98 S.Ct. at 2535, 57 L.Ed.2d at 481. [10] Where a state statute is challenged as violative of the commerce clause, a federal court is not permitted merely to assume that the statute serves an asserted state interest, as may be done when the court is confronted with an equal protection challenge to state regulation, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). "The principle that, without controlling Congressional action, a state may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by `simply invoking the convenient apologetics of the police power.' Kansas City Southern R. Co. v. Kaw Valley District, 233 U.S. 75, 79, 34 S.Ct. 564, 58 L.Ed. 857; Buck v. Kuykendall, 267 U.S. 307, 315, 45 S.Ct. 324, 69 L.Ed. 623." Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). See also Raymond Motor Transportation v. Rice, 434 U.S. 429, 441-45, 98 S.Ct. 787, 794-96, 54 L.Ed.2d 664, 675-78 (1978). [11] In its opinion in this case the Fifth Circuit Court of Appeals was even more blunt in its appraisal of the purpose and effect of Florida Statutes § 659.141(1), terming it "a brazen attempt to prevent out-of-state competition." BT Investment Managers, Inc. v. Lewis, 559 F.2d 950, 954 n. 13 (1977). [12] We recognize, too, as defendant and amicus have noted, that many other states have passed laws similar in nature to § 660.10. See Annotation, Eligibility of Foreign Corporation to Appointment as Executor, Administrator, or Testamentary Trustee, 26 A.L.R.3d 1019 (1969). In addition, § 660.10 has survived on the statute books without constitutional challenge for approximately 50 years. A statute's longevity or commonplace nature, however, is an insufficient rationale for justifying its demonstrated discrimination against interstate commerce.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373097/	223 S.E.2d 838 (1976) 29 N.C. App. 223 Hersel Grady STROTHER v. Howard Odell STROTHER. No. 7510DC913. Court of Appeals of North Carolina. April 21, 1976. 839 E. Ray Briggs, Raleigh, for the plaintiff. Cockman, Akins & Aldridge, by David R. Cockman, Raleigh, for the defendant. BROCK, Chief Judge. On appeal the wife raises two assignments of error. The first assignment of error arises out of the following finding of fact in the 29 May 1975 order: ". . . There has been a substantial change concerning plaintiff's income in the form of an addition which will more 840 than make up for her increased needs;. . ." The wife argues that this finding is not based on competent evidence. In particular she questions whether it was proper for the judge to use the 10 April 1975 letter describing the payments due from the York note as evidence on which to base the finding of fact described above. The wife's reference to the York note payments in her testimony at the hearing prompted the judge to inquire further about the significance of this addition to her income. The letter served to clarify her testimony at trial, and the judge, as the trier of fact in this action, was entitled to request this additional information. If plaintiff's counsel had not agreed to furnish the additional information, it would have been within the province of the judge to examine plaintiff under oath to obtain the information. Ordinarily the use of a letter received by the judge would be inappropriate, but here it is the party who furnished the letter who is complaining. Under such circumstances we see no error prejudicial to plaintiff. Next the wife argues that it was error to find a change of circumstances in her situation because of the York note payments. It is noteworthy that the effect of the York note on the wife's status as a dependent spouse is not in issue. The only question is whether it was proper to find that the income derived from the York note warranted a reduction in the amount of alimony pendente lite for the wife. The specific amount of alimony pendente lite to be paid a dependent spouse is within the discretion of the trial judge to determine and will not be disturbed on appeal in the absence of an abuse of discretion. Holcomb v. Holcomb, 7 N.C.App. 329, 172 S.E.2d 212 (1970); Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589 (1965). In view of the temporary nature of alimony pendente lite and the specificity of the findings of fact upon which the order is based, we find no abuse of discretion by the judge in this case. We are sympathetic with the wife's argument that the payments from the York note should not be considered income for purposes of determining the amount of alimony pendente lite she is entitled to: "Alimony pendente lite is measured, among other things, by the needs of the dependent spouse and the ability of the supporting spouse. The mere fact that the wife has property or means of her own does not prohibit an award of alimony pendente lite. (citations omitted)" Cannon v. Cannon, 14 N.C.App. 716, 189 S.E.2d 538 (1972). However, whether the York note payments justify a reduction in alimony pendente lite properly lies within the discretion of the trial judge. The judgment in this case is Affirmed. VAUGHN and MARTIN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373128/	223 S.E.2d 46 (1976) SOUTHERN ERECTORS, INC. v. OLGA COAL CO. et al. OLGA COAL CO. v. AMERICAN AIR FILTER CO., INC. No. 13479. Supreme Court of Appeals of West Virginia. March 9, 1976. 48 Harry G. Camper, Jr., Wade T. Watson, Camper & Watson, Welch, William D. Lambert, Ogden, Robertson & Marshall, Louisville, Ky., for American Air Filter Co.. Charles A. Tutwiler, Tutwiler, Crockett & LaCaria, Welch, for Olga Coal Co. W. H. Ballard, II, Welch, Sterl F. Shinaberry, Hostler & Shinaberry, Charleston, for Southern Erectors. 47 PER CURIAM: On this appeal, the Court is called upon to examine the rights and responsibilities of a contractor in an action brought by a subcontractor claiming a mechanic's lien against a property owner for improvements made to the owner's property under a general or "turn-key" contract between the contractor and the owner. During the period relevant to this litigation, the Olga Coal Company, a corporate defendant below, owned and operated a coal tipple at Caretta, McDowell County, West Virginia. The tipple was situated on land owned by Youngstown Mines Corporation, Interlake Steel Corporation and Steelco Coal Company, all of which, including Olga, were subsidiaries of Youngstown Sheet and Tube Company. In 1969 and 1970, Olga contracted with American Air Filter Company to construct a dust control system on the tipple located at Caretta. Subsequently, American Air Filter Company entered into a subcontract with Associated Craftsmen to provide some of the labor and materials on the improvements. In turn, Associated Craftsmen entered into an agreement of subcontract with Southern Erectors, Inc., by which Southern Erectors agreed to furnish labor and incidental materials for Associated Craftsmen in connection with the installation of the dust control system. Southern Erectors performed its obligations completely under the terms of its contract and billed Associated Craftsmen for the work done. After making partial payment, Associated Craftsmen defaulted, leaving a balance due to Southern Erectors of $20,369.63. To secure its payment, on November 23, 1970, Southern Erectors contemporaneously served on Olga Coal Company and filed its notice of mechanic's lien upon Olga's interest in the coal tipple at Caretta and in the land upon which it was located. Following the service and filing of its notice of mechanic's lien, Southern Erectors initiated a timely action in the Circuit Court of McDowell County against Olga Coal Company and Associated Craftsmen for enforcement of the mechanic's lien. After the initiation of the action, Olga sought and obtained leave to file a third-party complaint against American Air Filter Company. By its third-party complaint, Olga contended that American Air Filter Company, under its contract, had agreed to indemnify and save harmless Olga Coal Company against any and all claims or demands that might be made against it by any subcontractor or others relating to the contract activities. In its answer to the third-party complaint, American conceded the existence of the contract with Olga but denied that the contract contained any hold harmless provision. In addition, American asserted a counter-claim against Olga for payment of $24,476.00 which Olga had retained 49 under the terms of the contract between it and American. After the preliminary proceedings described but before American Air Filter filed its answer to the third-party complaint, Southern Erectors filed a motion under Rule 56 of the Rules of Civil Procedure for summary judgment against Olga Coal Company. Although the motion sought judgment on the mechanic's lien only against Olga, notice of the motion was served upon counsel for American Air Filter Company as well. Several depositions, exhibits and affidavits were submitted to the court for its consideration in connection with the motion for summary judgment. On August 11, 1972, the Circuit Court below entered summary judgment, the particular terms of which are critical to the disposition of this case and are set out here: "It is, accordingly, ADJUDGED and ORDERED that the plaintiff, Southern Erectors, Inc., recover of and from the defendant, Olga Coal Company, the sum of Twenty Thousand Three Hundred Sixty-Nine & 63/100 Dollars ($20,369.63), with interest thereon . . .. "It is further ADJUDGED and ORDERED that upon said payment by said Olga Coal Company to said Southern Erectors, Inc., that the Mechanic's Lien filed by said plaintiff in said County Clerk's Office November 23, 1970, shall be satisfied, discharged, released and held for naught and that any amount owing by said Olga Coal Company to said American Air Filter Company shall be credited with the amount that Olga Coal Company pays to the plaintiff, Southern Erectors, Inc., by virtue of this Order." American Air Filter Company excepted and objected to all of the provisions of the court's order. Subsequently, American timely filed broad alternative motions under Rules 52 and 59 of the Rules of Civil Procedure, including a motion to alter or amend the judgments and findings and a motion to set aside those judgments and to grant a new hearing or trial. These motions were denied by the trial court below by an order entered December 5, 1972. Although the appellant has designated numerous errors on this appeal, these can be condensed to two basic questions which this Court must examine: first, whether Southern Erectors had a valid and subsisting mechanic's lien which could be enforced against Olga Coal Company; and, second, whether Olga Coal Company was entitled to a set-off in an amount equal to its liability to Southern Erectors against its obligation to American Air Filter. I Initially, we are confronted with a threshold question which must be resolved before reaching the merits of the challenge to the validity of the mechanic's lien in the action below. The appellee, Southern Erectors, contends that American Air Filter Company has no standing in this appeal to attack the judgment against Olga. The appellee's argument ignores American's status as the third-party defendant below. During the entire proceedings before the trial court the defendant Olga maintained an essentially neutral position, contending primarily that it was simply a stakeholder which stood ready and willing to pay retained proceeds in accordance with the directions of the court. On the other hand, American, as third-party defendant, contested the validity of the mechanic's lien through its answer to the third-party complaint and by depositions, exhibits and affidavits filed in opposition to the motion by Southern Erectors for summary judgment. Rule 14(a), W.Va.R.C.P., provides in relevant part: "The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim." The object of the language quoted is to permit the impleaded third-party defendant to protect itself in the instance of a failure or neglect by the defendant/third-party plaintiff to assert a proper defense to the plaintiff's action. 50 Lugar & Silverstein, W.Va. Rules 127-128 (1960). Under this rule, then, for the purposes of defending against the plaintiff's complaint, the third-party defendant is just as much an adverse party as is the defendant. F & D Property Company v. Alkire, 385 F.2d 97 (10th Cir. 1967). Thus, we conclude that where, as here, the liability of a third-party defendant derives directly from an adjudication against the defendant/third-party plaintiff, and where the third-party defendant has unsuccessfully asserted defenses available to the defendant/third-party plaintiff against the plaintiff, the third-party defendant has standing to appeal a judgment rendered against the defendant/third-party plaintiff on grounds raised by such defenses. II The appellant challenges two aspects of the mechanic's lien which it contends render that lien invalid, or which at least raise such genuine issues of material fact as to preclude the entry of summary judgment. Initially, American argues that the notice of mechanic's lien was not served upon the owner or his authorized agent within the time prescribed by law. Code, 38-2-2, gives a subcontractor a lienable claim upon the building or other structure improved by the labor and materials furnished by that subcontractor. Under Code, 38-2-7 and 38-2-9, for the purpose of perfecting and preserving his lien, every subcontractor must, within sixty days after the completion of his subcontract, give the owner or his authorized agent notice of lien. We have held that compliance with the notice requirement is essential to the perfection of a mechanic's lien under W.Va. Code, 38-2-2. Wees v. Elbon, 61 W.Va. 380, 56 S.E. 611 (1907). From the record, there is no dispute that the notice in question was served on Olga Coal Company on November 23, 1970. However, a factual dispute arises over the date on which the subcontractor completed the work under his subcontract. Agents of Southern Erectors testified, by deposition, that the last work was performed on September 25, 1970. On the other hand, exhibits filed with the depositions indicate that the last date for which Southern Erectors billed its contractor for work was September 22, 1970. We have examined the record in detail and although we find that the evidence preponderates in favor of the appellee's position that the last performance of work occurred on September 25, 1970, such a showing is inadequate to sustain a motion for summary judgment under Rule 56. See, Wheeling Kitchen Equipment Co., Inc. v. R & R Sewing Center, Inc., 154 W.Va. 715, 179 S.E.2d 587 (1971). However, this determination by the Court does not negate the judgment below, since the appellee asserts other grounds which we conclude sustain the trial court's action. Code, 38-2-31, as amended, another section of the mechanic's lien article, provides in part: "Every workman, laborer or other person who shall do or perform any work or labor, for an incorporated company doing business in this State, by virtue of a contract either directly with such incorporated company or with its general contractor, or with any subcontractor, shall have a lien for the value of such work or labor upon all real estate and personal property of such company . . ." [Emphasis supplied]. This lien may be perfected by filing the notice of lien with the clerk of the county court of the county in which the work or labor was performed within ninety days from the time such person shall have ceased work or labor. Code, 38-2-32. No notice to the owner is required to effect a perfection of this workman's lien. Doss v. Gulf Smokeless Coal Co., 102 W.Va. 470, 135 S.E. 575 (1926); O'Connell v. Little War Creek Coal Co., 95 W.Va. 685, 122 S.E. 158 (1924). So, even if the last work was performed on September 22, 1970, as is contended by the appellant, it is clear that notice was filed 51 timely, i. e., within the ninety day period, on November 23, 1970. We conclude that the circuit court properly found that the notice of lien was filed seasonably. The appellant's second attack on the mechanic's lien is that it was served on Olga Coal Company, who, as lessee, was not the owner of the land on which the tipple was located. The essence of this argument is that since the notice of lien was directed to Olga Coal Company, it was ineffective to secure a lien since the property, in actuality, was owned by Youngstown Mines Corporation, Interlake Steel Corporation and Steelco Coal Company. In taking this position, the appellant has neglected to recognize that Code, 38-2-32, unlike Code, 38-2-9, requires no notice to be given to the owner of the real estate or personal property upon which the lien is sought to be imposed. Further, it is absolutely clear that Olga, in its own right, was the owner of sufficient property in the form of the tipple and the leasehold upon which it was located to give rise to a lienable interest in favor of Southern Erectors. Showalter v. Lowndes, 56 W.Va. 462, 49 S.E. 448 (1904). On the foregoing analysis, the Court is of the opinion that the trial court below properly granted summary judgment for Southern Erectors against Olga Coal Company. III Throughout its presentation to this Court, by briefs and oral argument, the appellant has characterized the action of the circuit court below as a grant of summary judgment against American in favor of and on the motion of Southern Erectors. We have carefully examined the record in this case with particular reference to the judgment order of August 11, 1972. Based on this examination, we think it is clear that when the circuit court ruled, "that any amount owing by said Olga Coal Company to said American Air Filter Company shall be credited with the amount that Olga Coal Company pays to the plaintiff, Southern Erectors, Inc., by virtue of this order", the circuit court, albeit inartfully done, granted summary judgment for Olga Coal Company on its third-party complaint against American Air Filter. This construction raises a substantial question as to the propriety of the court's action below inasmuch as Olga had made no motion for summary judgment. Rule 56(c), W.Va.R.C.P., provides in part: "The judgment sought shall be rendered forthwith if the pleadings, depositions, 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 a judgment as a matter of law." [Emphasis supplied]. Although the rule appears to authorize the court to grant summary judgment only to a party who has made a formal motion, the authorities agree that a court may enter judgment for a party opposing a summary judgment motion even though no cross-motion has been made. Lowenschuss v. Kane, 520 F.2d 255 (2nd Cir. 1975); Local 33, Int'l Hod Carriers, etc. v. Mason Tenders, etc., 291 F.2d 496 (2nd Cir. 1961); Lugar & Silverstein, W.Va. Rules 436 (1960); 10 Wright & Miller, Federal Practice and Procedure: Civil §§ 2719 & 2720 (1973). Arguably, a different situation obtains where neither party has moved under Rule 56 and the court wishes to act on its own initiative. We are of the opinion that where a court acts with great caution, assuring itself that the parties to be bound by its judgment have had an adequate opportunity to develop all of the probative facts which relate to their respective claims, the court may grant summary judgment sua sponte. Sibley Memorial Hospital v. Wilson, 160 U.S.App.D.C. 14, 488 F.2d 1338 (1973); Wirtz v. Young Electric Sign Co., 315 F.2d 326 (10th Cir. 1963). See, 10 Wright & Miller, Federal Practice and Procedure: Civil § 2719 (1973). Contra, Twin City Federal S & L Assn. v. Transamerica Ins. Co., 491 F.2d 1122 (8th Cir. 1974). In the proceedings below, the obligation claimed by Olga against American derived 52 solely out of the parties' contract which was made a part of the record. Further, Olga admitted by its answer to American's counterclaim that it had retained ten percent of the contract price due. On this set of circumstances, the court had before it all that was necessary to adjudicate the rights of the parties. Consequently we cannot conclude that the circuit court erred in treating the matters before it as ripe for judgment. IV The final issue to be resolved is whether the circuit court erred in giving judgment to Olga on its third-party complaint against American. The thrust of Olga's cause of action against American was that under its contract American "agreed to indemnify and save harmless Olga Coal Company against any and all claims or demands that might be made against it by any sub-contractor or others arising out of the principal contract." The agreement between the parties is contained in a series of documents, consisting primarily of a proposal or "quotation" by American Air Filter Company, and a "purchase order" from Olga Coal Company. These documents, when read in pari materia, provide a clear picture of the obligations of the respective parties. As it is relevant to our consideration, the most apparent feature of the agreement is that American Air Filter Company promised to provide all work and material required for the installation of the improvements for pollution abatement at a price of $244,760.00. In its proposal, American stated "AAF will provide at our expense, all labor and materials as required to meet the stated guarantee [a guarantee of qualitative performance by the pollution abatement installation]. This is to be done at no expense to Olga Coal Company or Youngstown Sheet & Tube." American further promised: "Except for the event of a general industry wide increase in steel prices, the prices quoted are firm prices upon acceptance of this proposal . . ." [Emphasis supplied]. In accepting the proposal by American at the firm price, Olga specified that American was to "Furnish all engineering, equipment, tools, materials, supplies, foundations, labor, and supervision to unload, install and complete the facilities." Further, the purchase order required American "to provide at no expense . . . all engineering, labor and materials or other work which may be necessary . . ." Finally, Olga stipulated that American "shall have sole responsibility . . . for workmanship and materials . . . [and] . . . any extra costs are at the full responsibility of the contractor. . ." It is in accordance with these terms that American proceeded to provide the specified improvements and in connection therewith obtained, by subcontract, the services of others in pursuance of its performance. It is elementary that where a contractor obligates itself to furnish labor and materials, and in the absence of particular language in the contract making the owner responsible for payment for these labor and materials, the compensation of laborers and materialmen must be borne by such contractor and not by the owner. Carruth v. Valley Ready-Mix Concrete Co., 221 S.W.2d 584 (Tex.Civ.App.1949); 17A C.J.S. Contracts § 370(2). Such obligations are the very essence of the contract. Similarly, an owner is entitled to a set-off against any obligation he may have to his contractor for any expenses incurred or damages sustained by reason of his contractor's failure to perform in accordance with his contract. H. T. C. Corporation v. Olds, 486 P.2d 463 (Colo.App.1971); 17A C.J.S. Contracts § 368. Based on these principles, the court concludes that where a contractor agrees to provide all work and materials in connection with a contract at a specified and firm price, and in the absence of any express contractual agreement to the contrary, the contractor is responsible to the owner for any costs sustained by the owner which are occasioned by the acts of the contractor's *53 irresponsible subcontractor. In this case, American unequivocally promised to provide a specified improvement at a specified price and expressly agreed to absorb extra costs. Under these circumstances, we believe that it was perfectly appropriate for the trial court to grant judgment in favor of and on behalf of Olga by way of a set-off against its contractual obligation to American. The judgment of the Circuit Court of McDowell County is affirmed. Affirmed. HADEN, J., participated in the consideration and decision of this case but resigned from the Court before the opinion was handed down. WILSON, J., did not participate in the consideration and decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373125/	137 Ga. App. 360 (1976) 223 S.E.2d 757 COTTON et al. v. JOHN W. ESHELMAN & SONS, INC. 51570. Court of Appeals of Georgia. Argued January 14, 1976. Decided January 23, 1976. Cook & Palmour, Bobby Lee Cook, Neely & Player, Edgar A. Neely, III, Adam S. Skorecki, for appellants. Kenyon, Hulsey & Oliver, Julius M. Hulsey, J. D. Smith, for appellee. WEBB, Judge. Eshelman & Sons sued the Cottons, husband and wife, for $58,670.75 plus accrued interest, alleged to be the amount due on an open account for the purchase of feed and other supplies. In addition the complaint alleged that a conveyance of certain real property from Thomas E. to Gloria P. Cotton was effectuated for the purpose of defrauding the company and delaying the collection of the indebtedness, and prayed that the conveyance be declared void and the judgment be declared a lien on the property. Mrs. Cotton's motion for directed verdict made at the close of the evidence was denied and the jury returned a verdict 361 in favor of Eshelman. The Cottons appeal. 1. The appellants maintain that certain invoices, ledger cards and other documents evidencing the open account of Thomas E. Cotton, d/b/a Cotton Patch Poultry Farm, or Grayson Egg Company, were improperly admitted in evidence as business records under Code Ann. § 38-711 for the purpose of showing goods delivered, because no witness testified from personal knowledge in regard to posting the amounts shown thereon or the actual delivery of any goods to the party charged. The business records statute provides as follows: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term `business' shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. This section shall be liberally interpreted and applied." Code Ann. § 38-711. (Emphasis supplied.) Appellants' contention that the invoice and ledger cards were inadmissible as business records because a proper foundation was not laid under the above quoted provision overlooks the italicized portion which clearly states that lack of personal knowledge may affect only the weight given the evidence, not its admissibility. There are numerous decisions of this court holding that records made in the regular course of business are admissible regardless of lack of personal knowledge on the part of the entrant or maker. See, e.g., Allstate Ins. Co. v. Buck, 96 Ga. App. 376, 378 (100 SE2d 142) and cits.; Welborn v. State, 132 Ga. App. 207, 209 (4) (207 SE2d 688). "The purpose of Code Ann. § 38-711 is to allow the 362 determination of records without the necessity of producing all the various clerical personnel who made the entries." Timothy McCarthy Constr. Co. v. Southern Detectives, Inc., 125 Ga. App. 205, 206 (186 SE2d 895); Dowling v. Jones-Logan Co., 123 Ga. App. 380, 382 (181 SE2d 75). Such records are admissible upon the testimony of a witness that they were made, kept and maintained in the regular course of business under his supervision, direction and control, even if the witness did not personally keep the records or make particular entries therein. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 384 (6) (170 SE2d 724). Marshall Jenkins testified that he had been the accountant for Eshelman & Sons for 17 years; that he was familiar with the Cotton account; that it was his responsibility to keep up with the accounts of all of Eshelman's customers; and that he was familiar with the procedure by which entries were posted to an individual customer's account. On cross examination he testified in greater detail as to his knowledge of the delivery and accounting procedures of the business. This testimony, as well as that of Eshelman & Sons' general manager, R. D. Benner, established that the company's business practices were to make account entries either on ledger cards or by computer within a reasonable time after a particular transaction was completed; and that these entries were furnished in the regular course of business by those employees who had actual knowledge of the relevant facts, including delivery. This testimony was sufficient to lay a proper foundation for the admissibility of the ledger cards and invoices of the Cotton open account. After being properly admitted into evidence, the weight and credit to be attached to these records was a matter for determination by the jury. 2. The itemizations and summaries of the Cotton account prepared by Mr. Jenkins were also properly admitted in evidence. These summaries were not introduced as business records under Code Ann. § 38-711, but instead were offered solely for the purpose of summarizing voluminous records, which were present in court and available for inspection. 363 "When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation, provided the books themselves are accessible to the court and the parties. Bitting v. State, 165 Ga. 55 (3) (139 S.E. 877)." Bible v. Somers Constr. Co., 197 Ga. 761 (2) (30 SE2d 623); Hutcheson v. American Machine &c. Co., 129 Ga. App. 602, 603 (200 SE2d 371) and cits. 3. The Cottons contend that the trial court erred in admitting into evidence certain computer printouts showing transactions that made up a portion of their open account. They concede in their brief that "it was clear that Mr. Jenkins generally oversaw the accounting practices of the company," but argue that he was not familiar enough with the computer program to lay the necessary foundation as business records under Code Ann. § 38-711. Mr. Jenkins' testimony established that the computer printouts were a part of a computer account system implemented by the company in 1972 to replace the earlier posting system utilizing ledger cards. Therefore the business records introduced to prove the indebtedness of Thomas E. Cotton on the open account consisted of both ledger cards with supporting documents and computer printouts. Jenkins testified that both the cards and the printouts were used, in turn, in the regular course of business; that he was responsible for maintaining and certifying accounts and records of accounts under both systems; and that he supervised the maintenance of all the company's records and would certify their accuracy. While the question of proof of business records stored on tape on electronic computing equipment has not previously been considered in this state, those jurisdictions which have dealt with the issue have generally held that the proper foundation to be laid is the same as that for business records of any other type or description. See Merrick v. U. S. Rubber Co., 440 P2d 314 (Ariz. 1968); Rogers v. Frank Lyon Co., 489 S.W.2d 506 364 (Ark. 1973); King v. State, 222 S2d 393 (Miss. 1969); Union Electric Co. v. Mansion House Center North Redevelopment Co., 494 S.W.2d 309 (Mo. 1973); Transport Indemnity Co. v. Seib, 132 NW2d 871 (Neb. 1965); State v. Springer, 197 SE2d 530 (N. C. 1973); Railroad Commission of Texas v. Southern Pacific Co., 468 S.W.2d 125 (Tex., 1971); and United States v. De Georgia, 420 F2d 889 (9th Cir. 1969). See also, Annotation, 11 ALR3d 1377. Clearly the requirements imposed by the business records statutes of the various jurisdictions will vary depending upon the act adopted by the particular state. See generally, Green, Georgia Law of Evidence, § 312, p. 613. The Georgia statute does not prescribe the form or type of record to be admitted in evidence, providing merely for the admissibility of any "writing or record, whether in the form of an entry in a book or otherwise...," and vesting a wide discretion in the trial judge. Code Ann. § 38-711. (Emphasis supplied.) Moreover, the sanction that the section be liberally interpreted and applied was expressly reiterated by a resolution of legislative intent. (Ga. L. 1958, p. 542). Thus we conclude that our statute was intended to bring the realities of business and professional practice into the courtroom and should not be interpreted so as to destroy its obvious usefulness. Eshelman's computer now performs its bookkeeping tasks in the regular course of business. The only difference insofar as the business records are concerned is that instead of on paper the information and calculations are stored on tape, but may be retrieved and printed at anytime. As with the other types of business records introduced in evidence by the company, it was shown through the testimony of Mr. Jenkins and Mr. Benner that entries were made within a reasonable time and were furnished in the regular course of business by employees having actual knowledge of the relevant facts. "This procedure fits squarely that approved in United States v. Olivo, 3 Cir., 278 F.2d 415, wherein it was said: `The witness testified to a well-established business procedure not only in the trade, but specifically in the very company which had prepared the document. All the hallmarks of authenticity surround this 365 document, since it was made pursuant to established company procedures for the systematic, routine, timely making and preserving of company records.'" Transport Indemnity Co. v. Seib, 132 NW2d 871, 875 (Neb.), supra. For the reasons stated and under the authorities cited in Division 1, supra, the computer printouts, like the other business records, were properly admitted in evidence. 4. Appellants contend that the trial court erred in denying Gloria P. Cotton's motion for directed verdict on the issue of whether there had been a fraudulent conveyance from Thomas E. Cotton to her. It is urged in the alternative that even if that motion was properly denied, there was insufficient evidence to support the jury's verdict setting aside the conveyance and it should not be allowed to stand. We find no merit in either contention. "The court is bound to consider the evidence in the light most favorable to the party opposing a motion for directed verdict. Everett v. Miller, 183 Ga. 343 (188 S.E. 342); Curry v. Roberson, 87 Ga. App. 785 (75 SE2d 282); Whitaker v. Paden, 78 Ga. App. 145 (1) (50 SE2d 774). And after verdict is rendered and approved by the trial judge the evidence must be construed so as to uphold the verdict if there are discrepancies. See: Wren v. State, 57 Ga. App. 641, 648 (196 S.E. 146); Boatwright v. Rich's, Inc., 121 Ga. App. 121 (173 SE2d 232), and cases cited." Peachstone Development, Ltd. v. Austin, 133 Ga. App. 684 (212 SE2d 18). Also, a refusal by the trial court to direct a verdict is to be reversed only upon a showing of abuse of discretion. Claude S. Bennett, Inc. v. Vanneman, 95 Ga. App. 140, 145 (1) (97 SE2d 375). Code § 28-201 (2) provides in pertinent part that the following acts are fraudulent in law: "Every conveyance ... made with intention to delay or defraud creditors, and such intention known to the party taking ..." "When a transaction between a husband and wife is attacked for fraud by a creditor of either, the onus is on the husband and wife to show that the transaction was fair. Code § 53-505. Parker v. Harling, 189 Ga. 224 (5 SE2d 755). Whether there has been sufficient proof of the good faith of the transaction or of the wife's lack of knowledge of her husband's business affairs or debts is a question for 366 determination by the jury. Mercantile Nat. Bank v. Aldridge, 233 Ga. 318, 319 (210 SE2d 791) and cits. See also, Dickson v. Citizens Bank &c. Co., 184 Ga. 398 (4) (191 S.E. 379). The evidence here was ample to support a finding that the conveyance was in fact fraudulent under these standards. The jury was authorized to deduce from Eshelman's business records and the testimony of its witnesses that Mr. Cotton was heavily indebted to it in February, 1972 at the time the conveyance was made. Benner, the general manager, testified that on January 1, 1972 the indebtedness was $54,697.30. There was also evidence of indebtedness to other creditors, and that the property in question was originally acquired by Mr. Cotton in 1959 and not transferred to Mrs. Cotton until 1972 when he was heavily in debt. Certain checks to Mr. Cotton signed by Mrs. Cotton introduced in evidence by the appellants, which were purported to be in payment for the property conveyed, were drawn on various joint accounts of the Cottons. However, Mrs. Cotton was unable to explain fully on cross examination as to the source of the funds in these accounts. It was also shown on cross examination that on several occasions when Mrs. Cotton drew checks on these joint accounts, cashier's checks in the same amount were drawn payable to Mr. Cotton on the same days; that the cashier's checks were used by Mr. Cotton to pay for feed after he had been placed on a cash payment basis by certain suppliers; and that Mrs. Cotton sometimes placed the orders for this feed on her husband's behalf. It was further revealed that no security deed or promissory note was prepared in connection with the sale of the property; that there were no due dates set for payments; that payments were made at irregular intervals and in varying amounts; and that there was no time limit on payment of the obligation. Mrs. Cotton could not recall the rate of interest or the total balance still owing and the attorney who prepared the deed testified that no closing statement was prepared. A financial statement given by Cotton to the company in June, 1972, represented that the property conveyed by him to Mrs. Cotton in February, 1972, was still owned by him. *367 While Mrs. Cotton testified that there was a set purchase price of $700 an acre to be paid by her for the purchase of the land transferred, and as to various sources of her personal income, the weight of this testimony must be measured by the other circumstances bearing upon the same question. Arrington v. Awbrey, 190 Ga. 193, 197 (4) (8 SE2d 648). These facts created a jury question and accordingly it was not error to deny the motion for directed verdict. Oliver v. Farmer's State Bank, 224 Ga. 56 (159 SE2d 405). The jury's verdict was fully supported by the evidence. Judgment affirmed. Deen, P. J., and Quillian, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1726415/	240 S.W.2d 788 (1951) KEILS v. WALDRON. No. 2949. Court of Civil Appeals of Texas, Waco. June 7, 1951. A. B. Geppert, Jr., Houston, for appellant. Williford & Emerson, Fairfield, for appellee. HALE, Justice. This is an attempted appeal from a judgment of the County Court of Freestone County finally disposing of an action in forcible detainer without the award of any damages. Art. 3992 of Vernon's Tex. *789 Civ.Stats. provides in substance that such judgment is conclusive of the litigation and that no further appeal shall be allowed. In construing and applying the provisions of the foregoing statute, the courts of this State have held repeatedly that an appeal does not lie from a judgment of the county court disposing of an action in forcible entry or detainer unless damages in excess of $100.00 are awarded. Lane v. Jack, 25 Tex. Civ. App. 496, 61 S.W. 422; Kerlin v. Bassett, Tex.Civ.App., 152 S.W. 526; Delgado v. Chapa, Tex.Civ.App., 173 S.W. 1169; Tibbitts v. Lacy, Tex.Civ.App., 225 S.W. 190; Rose v. Skiles, Tex.Civ.App., 245 S.W. 127; Beacon Lumber Co. v. Brown, Tex.Com.App., 14 S.W.2d 1022; Cox, Inc., v. Knight, Tex.Civ.App., 50 S.W.2d 915; Madison v. Martinez, Tex.Civ. App., 56 S.W.2d 908; Brown v. Grant, Tex.Civ.App., 119 S.W.2d 185. Because we are of the opinion that this court does not have jurisdiction to review any part of the judgment of which complaint is here made, the attempted appeal must be and it is hereby dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2751255/	Order filed November 13, 2014 In The Fourteenth Court of Appeals ____________ NO. 14-14-00741-CV ____________ CHRISTOPHER SPATES AND PRODIGY SERVICES, Appellants V. ENI US OPERATING COMPANY, Appellee On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2012-35849 ORDER This is an appeal from a judgment signed July 28, 2014. The notice of appeal was due August 27, 2014. See Tex. R. App. P. 26.1. Appellant, however, filed his notice of appeal on September 11, 2014, a date within 15 days of the due date for the notice of appeal. A motion for extension of time is necessarily implied when the perfecting instrument is filed within fifteen days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal in this court.1 While an extension may be implied, appellant is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.CHouston [14th Dist.] 1998, no pet.). Accordingly, we ORDER appellant to file a proper motion to extend time to file the notice of appeal on or before 10 days after the date of this order. See Tex. R. App. P. 26.3;10.5(b). If appellant does not comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3. PER CURIAM 1 There is a motion contained in the clerk’s record.	01-03-2023	11-13-2014
https://www.courtlistener.com/api/rest/v3/opinions/1373264/	268 S.C. 227 (1977) 223 S.E.2d 287 The STATE, Respondent, v. Roy Milton JONES, Appellant. 20375 Supreme Court of South Carolina. March 4, 1977. 228 229 Messrs. W. Gaston Fairey and James C. Harrison, Jr., of Columbia, for Appellant. 230 Messrs. Daniel R. McLeod, Atty. Gen., Joseph R. Barker, and Brian P. Gibbes, Asst. Attys. Gen., and James C. Anders, Sol., of Columbia, for Respondent. 231 March 4, 1977. LEWIS, Chief Justice: Appellant was tried in the General Sessions Court of Richland County on charges of armed robbery, rape, assault with intent to ravish and possession of an unlawful weapon in connection with a robbery of the Termplan Finance Company office in Columbia, South Carolina. The victims described their assailant as a black male who wore a hood or mask over his head. Appellant was arrested after the ownership of a car alleged to be the one used in the robbery was traced to him and one of the victims coincidentally sighted the car and recognized the driver as the perpetrator of the crimes. Four of the victims viewed a lineup in which the participants were similarly built, wore white pillowcases over their heads and were made to speak certain words allegedly used in the robbery; each identified the appellant. The jury returned a verdict of guilty on all counts and appellant received twenty-five years for the crime of armed robbery, forty years for the crime of rape, forty years for the crime of assault with intent to ravish, and one year for the crime of possession of an unlawful weapon; all sentences to run concurrently. Several issues are raised in the appeal. We consider first the question challenging the legality of the lineup. The appellant contends that the lineup violated his privilege against self-incrimination under Article I, Section 12 of the South Carolina Constitution because he was compelled to speak certain words allegedly used at the scene of the crime. We disagree. In State v. Vice, 259 S.C. 30, 190 S.E. (2d) 510, we adopted the rationale used in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. (2d) 1149, regarding instances in which a defendant is compelled to use his voice as an identifying characteristic. In Vice, we recognized that a defendant's constitutional rights were not violated when he was compelled to speak 232 into a telephone in order that his voice could be recorded for identification purposes. We now hold that there is no violation of the privilege against self-incrimination afforded under the South Carolina Constitution when a defendant is compelled in a lineup to speak the words allegedly used in the crime. In Wade, the United States Supreme Court approved a lineup procedure in which the defendant was compelled to wear strips of tape over his face and speak certain words. The Court stated that: "compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a `testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt." 388 U.S. at 222, 223, 87 S.Ct. at 1930. This reasoning is applicable to the facts of this case. To the extent that the case of State v. Taylor, 213 S.C. 330, 49 S.E. (2d) 289, on which appellant relies, is inconsistent with the present holding, it is expressly overruled. Our examination of the testimony reveals that the lineup in which appellant participated was not "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed. (2d) 1199. The six participants were of approximately the same size and build. They wore the same clothing and footwear and wore white pillowcases with the eyes and nose cut out. Each was required to walk up to the one way glass behind which the witness stood and use approximately the words that were used in the holdup. They then executed several turns designed to give a view of their front and back and to show their profiles. The four Termplan employees who viewed the lineup identified the appellant according to physical characteristics such as physique, walk and voice. Each viewed the lineup separately with no discussion between them after each viewing. A law clerk from the public defender's office 233 helped the officers pick the participants and gave suggestions to make them look alike. There was nothing in the confrontation that made appellant stand out, nothing unusually suggestive. There was no error in the admission of the testimony concerning the lineup. The further contention that testimony concerning the lineup identification should have been excluded because the arrest of appellant was illegal is also without merit. This assignment of error is based upon the premise that the arrest warrant was issued without probable cause. The lower court concluded upon abundant factual support that there was sufficient probable cause to justify appellant's arrest, and these findings are conclusive on appeal. State v. Barrs, 257 S.C. 193, 184 S.E. (2d) 708. It is next contended that the trial judge erred in refusing to include in the voir dire examination a specific question concerning racial prejudice. Appellant sought to have the trial judge ask prospective jurors: "Would the fact that the defendant is black make it more difficult for you to render a verdict in his favor than if he was white?". This request was refused and appellant contends that the refusal to ask the question constituted an abuse of discretion so as to deny him the constitutionally mandated right to an impartial jury. The Termplan Finance Company office was robbed at approximately 1:10 p. m., on July 3, 1975, by a black male carrying a small caliber pistol. There were six employees, all white, in the office at the time three male and three female. During the course of the robbery all of the employees were forced to disrobe, after which the women were forced into a boiler room and the men into an office. Besides escaping with approximately fourteen hundred ($1400.00) dollars, the robber raped one of the women and assaulted another with intent to ravish. 234 The sole basis for the requests for a specific inquiry as to racial prejudice was the fact that the assailant was black and the women assaulted were white. There is no claim that any defense was based upon race or racial prejudice. Specific voir dire questions directed to matters that might conceivably prejudice jurors against a defendant are not constitutionally mandated in every case. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed. (2d) 258. The question of impartiality of a juror is addressed to the sound discretion of the trial judge. State v. Young, 238 S.C. 115, 119 S.E. (2d) 504; State v. Bethune, 93 S.C. 195, 75 S.E. 281. Under the foregoing principles, specific voir dire questions on racial prejudice are not constitutionally required in every case where the crime involves violence by a black against a white. Ristaino, 424 U.S. 589, 96 S.Ct. at 1021, 47 L.Ed. (2d) at 264. Our decisions in Young and Bethune, supra, in effect, hold that a specific inquiry on racial prejudice is not ordinarily required where, in view of other answers to questions concerning bias and prejudice against the prisoner, the answer of the jurior to the proposed question must have been in the negative. With appellant present at the counsel table, where his race was readily apparent, the trial judge asked the jurors, among other questions: "Are you conscious of any bias or prejudice against the defendant?"; "Do you have any reason why you could not sit as an impartial juror?"; and "Can you give the defendant a fair and impartial trial, based upon the law and the facts of the case?". Preceding these inquiries, the trial judge instructed the jurors as to their duties so as to impress upon them the fact that the sole purpose of the voir dire examination was to secure a fair and impartial jury to try the case. 235 The record shows that the trial judge adequately questioned the jurors to determine impartiality and absence of prejudice; and there were no special circumstances, as in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed. (2d) 46 (relied upon by appellant), which would require specific questioning about racial prejudice. There was consequently no abuse of discretion nor violation of any constitutional right of appellant to an impartial jury. Appellant was apprehended partly upon recognition of his automobile from prior descriptions given to the officers of the vehicle used by the assailant in fleeing the scene of the crime. Testimony to this effect was introduced at the trial and, at the conclusion of appellant's case, he requested that the jury be allowed to view the automobile in order to support his allegations concerning alleged discrepancies in the descriptions of the vehicle by the witnesses. The trial judge refused the request that the jury be allowed to view the automobile and appellant submits that this was error. Whether or not the jury would be allowed to view the automobile was discretionary with the trial judge and, in the absence of abuse of discretion, this Court will not interfere. The physical characteristics of appellant's automobile, relied upon by the State in establishing his guilt and by him in attempting to impeach the testimony of the witnesses, were adequately presented to the jury in detail in the form of descriptive testimony and photographs of the vehicle. Under these circumstances, there was no abuse of discretion. State v. Spinks, 260 S.C. 404, 196 S.E. (2d) 313; State v. Seay, 263 S.C. 496, 211 S.E. (2d) 649. The testimony concerning the commission of the crimes charged and the identifications by the witnesses of appellant as the one committing the crimes required submission of the question of appellant's guilt to the jury for determination. Therefore, appellant's further argument that his motion for a directed verdict should have been granted cannot be sustained. *236 The final question is based upon the charge that the questioning of one of the witnesses by the trial judge constituted an impermissible comment upon the exercise by the appellant of his constitutional right to remain silent. The challenged questions were asked and answered without objection. Since no objection was made in the lower court to the testimony in question, such objection cannot be raised for the first time on appeal. State v. Laster, 261 S.C. 521, 201 S.E. (2d) 241. The judgment is accordingly affirmed. LITTLEJOHN, NESS, RHODES and GREGORY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373267/	217 Kan. 96 (1975) 535 P.2d 991 STATE OF KANSAS, Appellee, v. TONY R. JAMES, Appellant. No. 47,617 Supreme Court of Kansas. Opinion filed May 10, 1975. Michael Lerner, of Barnett & Lerner, of Kansas City, argued the cause and was on the brief for the appellant. Stephen M. Joseph, Assistant District Attorney, argued the cause, and Curt T. Schneider, Attorney General, and Keith Sanborn, District Attorney, were with him on the brief for the appellee. The opinion of the court was delivered by KAUL, J.: Defendant-appellant (Tony R. James) appeals from convictions by a jury of aggravated burglary (K.S.A. 21-3716), rape (K.S.A. 21-3502), and aggravated sodomy (K.S.A. 21-3506). Various trial errors are raised on appeal. The victim of the rape and sodomy, who will not be named, was unmarried at the time. She occupied a residence in Wichita with another woman, who was at work during the night in question. The victim entertained her boyfriend the evening of April 7, 1971. They watched a movie on television which ended about 10:30 or 11 p.m., when they went out for a coke. After her boyfriend returned the victim to her residence, she prepared for bed. About five minutes after her boyfriend left she heard a knock on the front door. She fixed the time at approximately 11:45 p.m. She went to the door and inquired who was there and received a reply "This is the Police Department." She opened the door and discovered a man whom she identified as defendant "coming through the door at me." The victim further testified that defendant immediately wedged his foot between the wall and the door and, although she tried to push him out, he pushed her inside and 97 came through the door. Defendant placed an instrument, which the victim described as small and pointed, to her neck, put his hand over her nose and mouth, and told her to do exactly what he said and she would not get hurt. She was shoved along through the living room and hallway into the bathroom where she was forced to commit oral copulation, following which she was raped. Defendant had placed a towel over the victim's head, and after completing intercourse, he took the towel off, told her not to look up at him, handed her the towel, and told her to wipe herself so he could watch; defendant then placed the towel on her head. After instructing the victim again to keep her head down, defendant departed through the back door. The victim made a positive in-court identification of defendant. The principal issue at trial was the identity of the perpetrator. Defendant's counsel vigorously cross-examined each of the state's witnesses who gave identification testimony. Defendant specifies as his first point of error "The trial court erred in admitting evidence of prior offenses contrary to K.S.A. 60-455." Actually, the offenses referred to occurred subsequent to the offenses for which defendant was tried, but prior to trial. No point is made in this regard. They were sex related offenses bearing similarity in numerous respects to the incident giving rise to the charges in the instant case. The first of the two subsequent incidents occurred the night of June 12, 1971, and the second during a night early in October 1971. It appears that charges were not filed on either of these two incidents. During the state's opening statement the prosecuting attorney informed the jury that the state would present evidence concerning the first incident and described it in some small detail. There was no objection. The prosecutor commenced to tell the jury of the second incident, at which time the defendant lodged an objection, which defendant says was made on the ground that the state was seeking to prove a character trait which is prohibited by K.S.A. 60-447, and additionally that none of the eight purposes for which K.S.A. 60-455 allows such evidence, were present. Out of the presence of the jury, the trial court heard extensive arguments of counsel, which are reproduced in the amended record on appeal. The record indicates the court was fully informed as to the particulars of the second incident and made inquiry into the state's justification for offering the testimony. The court overruled 98 defendant's objection, and evidence of the second subsequent incident was received at trial without further objection either to any of the evidence or the limiting instruction under K.S.A. 60-455 given in connection therewith. Even though no objections were made during trial, in his motion for a new trial defendant claims error with respect to evidence of both subsequent incidents, as well as to the scope of the 60-455 instruction. Since defendant failed to make timely objection to evidence of the first subsequent incident, appellate review is foreclosed pursuant to the contemporaneous objection rule prescribed by K.S.A. 60-404. (State v. Horne, 215 Kan. 448, 524 P.2d 697; and State v. Shepherd, 213 Kan. 498, 516 P.2d 945.) Nevertheless, we have examined the testimony concerning the first, or June 12, incident and find the rape and sodomy committed on that occasion to have been perpetrated under circumstances very similar to those shown in the case on trial. The evidence was clearly admissible on the issue of identity. Although evidence of the second subsequent incident, which occurred in October 1971, was not objected to when offered at trial, because of defendant's objection during the state's opening statement, we deem the question raised is entitled to consideration. Even though the acts of rape and sodomy were not consummated, we believe the victim's testimony concerning the perpetrator's conduct, language used, and other surrounding circumstances shows sufficient similarity to make the evidence relevant on the issue of identity. This victim testified that around midnight on a date early in October 1971, her husband was working and she was home alone. The night was hot and the front door had been left open. The victim was lying on the couch watching television when someone came to her front door. She testified "he told me not to move, he had a gun and to do whatever he told me to do." The victim further testified that the encroacher told her to keep her eyes closed, roll over on her back, spread her legs, keep one foot on the floor "Then he told me to take off my top and to play with my breasts; and then he kept telling me to play with myself and everything." The victim testified that she did all the things the intruder told her to do because she was afraid since he had told her he had a gun. The victim testified the encroacher remained at the front door about ten to fifteen minutes, but she never got a good look at him. Her husband arrived home a few minutes later. He testified that, as he approached his apartment, he 99 got a good look at a man who jumped off the front steps; that the man was visible because of a nearby street light, and the light from a porch light on the next door apartment. The husband made a positive in-court identification of defendant. As we have indicated, the trial court in the first instance heard arguments and considered the matter outside the presence of the jury; under the overall facts and circumstances shown by the record, we believe its ruling should stand. Where identity is the critical issue in a criminal case, evidence of similar offenses is of particular probative value. Here all three of the offenses were sex related. In all three, similar sexual deviation and voyeuristic conduct was evidenced, each occurred in the same part of Wichita and each within one hour of midnight. Threats of physical violence and instructions were given to the victim in each case in identical or very similar language. In each instance the encroacher came to the front door and employed similar methods by means of which he attempted to prevent the victim from getting a view of his face. As we have previously indicated, the trial court carefully considered the matter in the first instance and we are unable to say that abuse of discretion is shown. The same issue was presented in similar context in State v. Masqua, 210 Kan. 419, 502 P.2d 728, cert. den. 411 U.S. 951, 36 L Ed.2d 413, 93 S.Ct. 1939. At page 423 of the opinion in Masqua, Chief Justice Fatzer speaking for the court said: "... Moreover, while independent of the charges in question, the testimony reflected offenses of a similar character; under proper instructions outlining the purpose of such testimony it was admissible as showing identity, guilty knowledge, intent, plan or mode of operation, and motive. (Citing cases.)." We also note that the facts and issues before us in the instant case bear marked resemblance to those appearing in State v. Hampton, 215 Kan. 907, 529 P.2d 127. It will suffice to say our conclusion herein accords with that decision. See, also, State v. Gonzales, 217 Kan. 159, 535 P.2d 988. Defendant's second point is directed to instruction No. 12 which limited the jury's consideration of the evidence of other offenses as provided by K.S.A. 60-455. The instruction given was in "shotgun" form including all of the eight elements enumerated in the statute. Since the evidence was relevant to identity the critical issue in the case the instruction was not erroneous as a matter of law and it became the law of the case upon defendant's acquiesence. (State 100 v. Masqua, supra, and cases cited therein.) We note, in passing, that this case was tried on January 10, 1972, prior to the caveat of this court concerning "shotgun" type instructions under 60-455 announced in State v. Bly, 215 Kan. 168, 523 P.2d 397; State v. Clingerman, 213 Kan. 525, 516 P.2d 1022; and State v. Masqua, supra.) We were informed on oral argument that the delay in perfecting this appeal stemmed primarily from defendant's change of counsel. In his next point defendant challenges instruction No. 5 setting out the elements of rape as prescribed in K.S.A. 21-3502. The phrase "sexual intercourse" is used in the instruction, but the court omitted a definition thereof as set out in K.S.A. 21-3501 (1). Defendant's claim of error cannot be sustained because he failed to object at trial and the instruction as given is not clearly erroneous since it was complete and correct in all other respects. As previously indicated, the only issue in the case was identity. The facts of rape and sexual intercourse were not disputed. (See State v. Loomer, 105 Kan. 410, 184 Pac. 723.) In his fourth point defendant claims a note sent by the jury, during deliberations, to the trial court indicates the jury was not impartial. Defendant contends the court erred in not granting a new trial because of this note. The note in question, as reproduced in the state's brief, reads: "How was this Tony James identified with or accused of the last two crimes? Was there a line-up? Why didn't the defense offer some defense in this case? Or are we allowed to ask this?" (Emphasis supplied.) The underlined sentence, upon which defendant makes his point, had been crossed out, indicating the jurors realized, even before sending the note, that they were not to consider defendant's failure to testify. Defendant, however, contends the jury "obviously" ignored the court's instruction No. 13, wherein the jury was instructed not to consider the fact he did not testify. It appears to us, however, that the crossing out of the sentence, concerning defendant's failure to testify, indicates the jury did remember instruction No. 13. Any uncertainty as to what the jurors should and could consider was erased by the court's answer to their note. The court replied: "The jury may consider only the evidence which has been introduced in the present case. Please review Instructions Nos. 9, 13 and 18." The instructions referred to informed the jury that the burden of proof never shifts from the state to the defendant; that it was not to consider in any manner the failure of the defendant to testify or *101 construe it as a circumstance against him; and that it was not to consider anything in connection with the case except the evidence which had been admitted and the law given in the instructions. In his last point defendant contends the trial court committed reversible error in giving instruction No. 20. Defendant contends this general instruction, which informed the jury that it was to lay aside all pride of opinion and not espouse or maintain, in a spirit of controversy, either side of the case, was erroneous as violating defendant's Sixth Amendment rights to a jury trial in that it unduly pressured the jury into believing that it had a requirement to return a unanimous verdict. Here again, the record does not reflect that defendant objected to the giving of instruction No. 20, and defendant cites no authority indicating the instruction was clearly erroneous. This court has, on several occasions, considered and approved instructions similar in substance to that complained of herein. (State v. Boyd, 206 Kan. 597, 481 P.2d 1015, cert. den. 405 U.S. 927,30 L.Ed.2d 800, 92 S.Ct. 977; State v. Oswald, 197 Kan. 251, 417, P.2d 261.) We find no reversible error shown and the judgment is affirmed. FROMME, J., not participating. PRAGER, J., concurring: I concur with the majority in the result reached in this case. Identity was clearly the crucial issue in the case. The record indicates sufficient similarity in the factual circumstances between the other offenses admitted into evidence and the one charged to allow a reasonable inference that the person who committed the other offenses also committed the instant offense. The evidence of other offenses was thus properly admitted to prove identity. However, for reasons set forth in my dissent in State v. Gonzales, 217 Kan. 159, 535 P.2d 988. I cannot agree with the reliance by the majority on State v. Hampton, 215 Kan. 907, 529 P.2d 127; and State v. Masqua, 210 Kan. 419, 502 P.2d 728, cert. den. 411 U.S. 951, 36 L.Ed.2d 413, 93 S.Ct. 1939.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373273/	223 S.E.2d 845 (1976) 29 N.C. App. 209 Lillie Fulton BRIDGES v. Frank Willard BRIDGES. No. 7526DC977. Court of Appeals of North Carolina. April 21, 1976. 847 W. J. Chandler, Charlotte, for plaintiff appellee. James J. Caldwell, Charlotte, for defendant appellant. HEDRICK, Judge. The appeal from the order dated 24 July 1975 is subject to dismissal since the order is clearly interlocutory, and even if valid, does not deny defendant a substantial right. G.S. 1-277; G.S. 7A-27; Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975). Even though the appeal from the order of 24 July must be dismissed, we must determine the validity of that order along with the order of 24 June 1975 to resolve the questions raised by the appeal from the order of 9 September 1975 holding the defendant in contempt. G.S. 50-16.3(a) provides: "Grounds for alimony pendente lite. (a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when: (1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and (2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof." G.S. 50-16.7(a) in pertinent part provides: "How alimony and alimony pendente lite paid; . . ..(a) Alimony or alimony pendente lite shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. * " The order dated 9 September holding the defendant in contempt was based on the finding that the defendant was "in violation of the prior Orders of the court." Obviously this finding refers to the orders of 24 June and 24 July 1975. Since the action was for alimony and the motion wherein the orders entered was for alimony pendente lite, we assume that the order transferring possession of the specific items and articles of personal property was an attempt by the judge to award the plaintiff alimony pendente lite by giving her possession of the personal property. However, the orders specifically concluded that the plaintiff was not entitled to alimony pendente lite, and the facts found by the judge support that conclusion. Having determined as a matter of law that the plaintiff was not entitled to alimony pendente lite, the District Court in this proceeding and on this record had no authority to order a transfer of the possession of the personal property described in the orders to the plaintiff. The orders of 24 June and 24 July 1975 are invalid on the face of this record. An invalid judgment or order may not be the basis of a proceeding in contempt. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658 (1949); In re Longley, 205 N.C. 488, 171 S.E. 788 (1933). Thus, since the orders dated 24 June and 24 July 1975, which the court found the defendant had failed to comply with, were not 848 lawfully issued and are invalid as a matter of law, the judgment finding and holding the defendant in contempt and ordering him to be imprisoned for 30 days is likewise invalid and must be vacated. The result is: The appeal from the order dated 24 July 1975 is dismissed; the order dated 9 September is vacated. Dismissed in part; Vacated in part. MORRIS and ARNOLD, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373275/	216 Va. 914 (1976) JAMES E. MARTIN, ET AL. v. HATTIE W. BASHAM. Record No. 750658. Supreme Court of Virginia. April 23, 1976. Arthur E. Smith, for appellants. Larry W. Wertz, for appellee. Present, All the Justices. Party to litigation offered to settle dispute. In further proceedings on whether settlement offer had been accepted and should be enforced, jury finding that offer was not rejected and remained open until accept was supported by the evidence. While it is not reasonable to assume that offer to settle remains open after court determination in favor of party making offer, parties may treat offer as open and accepted. Consideration which supports contract is either forbearance of right to rely upon favorable decision or forbearance of right to pursue appeal. Appeal from a decree of the Circuit Court of the City of Roanoke. Hon. Robert J. Rogers, judge presiding. POFF POFF, J., delivered the opinion of the court. The subject of this appeal is a compromise settlement vel non of a suit for specific performance of a contract of sale. James E. Martin and Mary C. Martin, his wife (purchasers), filed a bill of complaint seeking to compel Hattie W. Basham (seller) to perform a contract to sell her residence. Counsel for the parties entered into negotiations for settlement under which, in consideration of a cash payment by seller, purchasers were to accept a decree dismissing the cause as agreed. Seller tendered payment, but purchasers, contending that no binding settlement had been consummated, refused the tender. Seller then filed a petition in the original cause seeking specific performance of the settlement agreement. Chancellor Stanford L. Fellers recused himself, and counsel for both parties withdrew in 915 order to appear as witness in the cause before Chancellor Robert J. Rogers. A jury was empaneled to try certain issues out of chancery. By letter opinion dated December 17, 1974, and final decree entered February 13, 1975, the chancellor held that the evidence was sufficient to sustain the jury's findings, that seller was entitled to specific performance of the settlement agreement, and that the cause should be dismissed from the docket. The testimony concerning settlement negotiations was in sharp conflict. Under familiar principles, we view the evidence in the light most favorable to seller. On October 2, 1973, Chancellor Fellers heard argument on depositions and memoranda of law in the suit on the sale contract. He suggested to both parties that this suit should be settled. G. Marshall Mundy, seller's counsel, testified that B. K. Cruey, purchasers' counsel, "stated that his client would settle the case for $5000"; that although he felt "that the figure was outrageously high" and asked if purchasers would not "take something less than that . . . $2000 or something in that vicinity", he never rejected the offer or made a counter offer; and that he communicated purchasers' offer to seller and "continued to have periodic discussions [with Cruey] regarding the case and the settlement of it." Cruey asked Chancellor Fellers to make a ruling in the suit on the sale contract. By letter of October 16, 1973, addressed to both counsel, Chancellor Fellers announced that he was "of the opinion that the [purchasers] are entitled to specific performance." Mundy testified that he and Cruey "discussed the case by telephone" and in chance meetings on the street and that "[subsequent] to receiving this letter, he still maintained that his client still wanted nothing less than $5000 to settle the case." Cruey notified Mundy that he intended to present a decree awarding purchasers specific performance of the sale contract. On the morning of the day set for the presentment, October 29, 1973, Mundy handed Cruey a letter of even date stating that "Mrs. Basham has agreed to accept the offer of your clients . . . to settle this case for $5000.00." The presentment hearing was cancelled, and no decree was entered. Mundy testified that Cruey later "suggested that I have my client send him the check and I did that by November 16th letter"; that subsequent to that letter "Mr. Cruey came back to me and said, 'Well, what my client meant was $5000 net . . .' and that it was really going to take $5000 plus his attorney's fee to settle the case. That was the very first mention I had heard of any attorney's fee"; that he told Cruey that, 916 without waiving his position that a settlement of $5000 gross had been consummated, he would convey the question of attorney's fee to his client; that although seller authorized the additional payment, Cruey then said that his clients "just want the house." Cruey confirmed refusal by letter dated November 27 and returned seller's check. Mundy further testified that between October 2 and October 29, purchasers' offer to settle for $5000 was never withdrawn, that the offer was never rejected, that no counter offer was made, and that, at some point during settlement negotiations "[we] both also discussed the fact that the losing party may attempt an appeal". The jury was instructed in the law of contracts, and those instructions are not challenged here. In response to four interrogatories, the jury found that purchasers made an offer "to settle for $5000"; that the offer was not "rejected by or on behalf of" seller; that the offer remained "open after Judge Feller's decision"; and that the offer was "accepted by or on behalf of" seller. The controlling question is whether purchasers' offer remained open until accepted by seller. When time is not of the essence, an offer remains open for a reasonable time, Crews Sullivan, 133 Va. 478, 483-84, 113 S.E. 865, 867 (1922), or for such time as the parties treat the offer as continuing, see R. E. Crummer & Co. Nuveen, 147 F.2d 3, 5 (7th Cir. 1945). See generally 1 A. Corbin, Contracts \| 36 (1963); 1 S. Williston, Contracts \| 54 (3d ed. 1957; Cum. Supp. 1975). With respect to an offer to settle a dispute, it is not reasonable to assume that the offeror intended his offer to remain open after a jury verdict or a court decision in his favor, and unless the parties thereafter treat it as continuing, the offer expires with the verdict or decision. If the parties so treat the offer and it is timely accepted, a settlement contract arises, and, depending upon which party made the offer, the consideration which supports the contract is either forbearance of the right to rely upon a favorable decision or forbearance of the right to pursue and appeal from an adverse decision. See Danheiser Germania Savings Bank & Trust Co., 137 Tenn. 650, 194 S.W. 1094 (1917). Here, the question of fact submitted to the jury was whether purchasers' offer remained open after Chancellor Fellers' opinion in their favor. Seller's attorney testified that, after the chancellor's letter opinion was received, settlement negotiations continued; that he was told that purchasers would accept nothing less than they had first *917 offered to accept; that their offer was never, by word or conduct, withdrawn or rejected; and that even after acceptance was communicated, the presentment hearing was cancelled and he was told to submit a check in the sum of the original offer. While this testimony was contradicted in part, the jury resolved the conflict in seller's favor. We hold that the evidence was sufficient to support the factual finding that, after the date of the letter opinion, the parties treated the settlement offer as continuing and that the offer remained open until it was accepted. Accordingly, the decree is Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373277/	535 P.2d 1122 (1975) Kay Enenbach RHOADES, Petitioner-Appellee, v. Lyman RHOADES, Respondent-Appellant. No. 26681. Supreme Court of Colorado, En Banc. May 27, 1975. 1123 Sheldon, Bayer, McLean & Glassman, James T. Bayer, Denver, for petitioner-appellee. Richard L. Whitworth, Wheat Ridge, for respondent-appellant. PRINGLE, Chief Justice. This is an appeal from a dissolution decree in which the respondent-appellant, Lyman Rhoades, contends that the district court abused its discretion with respect to custody orders and visitation rights, maintenance, child support, and property disposition. He further contends that 1971 Perm.Supp., C.R.S.1963, 46-1-30,[1] which gives to the custodial parent the right to "determine the child's upbringing," is facially unconstitutional and is violative of his right to the equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution. We find that none of his contentions have any merit, and affirm the judgment of the district court. The facts relevant to each of the appellant's contentions will be discussed in conjunction with our analysis of those contentions. I. First, the appellant contends that the trial court abused its discretion in awarding custody of the parties' only child to the respondent, Mrs. Rhoades, and in limiting the visitation rights of Lyman Rhoades to daytime visits only. He contends that the evidence revealed that both parties loved the child, and since he was to maintain the family home, and there was some possibility that Mrs. Rhoades might leave the state to seek employment, the court should have awarded him custody. It is the well-settled law of this state that the question of custody is a matter within the discretion of the trial court after taking into consideration the various factors outlined in the statute for the purpose of determining the best interest of the child. Once that determination is made, this court will not substitute its judgment for that of the trial judge if there is sufficient evidence to support his conclusion. Root v. Allen, 151 Colo. 311, 377 P.2d 117. Here, there is adequate evidence in the record to support a conclusion that Mrs. Rhoades would be more responsive to the needs of the 20 month old child than Mr. Rhoades. Furthermore, the evidence provides a substantial basis for the trial court's limiting his visitation rights to daytime hours until the child is 4 years old. 1124 II. Second, the appellant contends that the trial court abused its discretion in awarding $250 per month maintenance to Mrs. Rhoades. The record reveals that at the time of the hearing Mrs. Rhoades was not employed, that there was very little marital property to distribute, that she was to take custody of the child, and that Lyman Rhoades, with a gross yearly income of approximately $17,000 was able to afford this sum. We cannot say that the trial court abused its discretion in making this award. We point out, however, that should Mrs. Rhoades, a former teacher, find employment, upon proper motion the trial court should consider modification of the maintenance award. III. Third, the appellant contends that the $217 per month that he is required to pay for child support is excessive. Mrs. Rhoades testified that baby-sitting, clothing, food and health insurance for the child was $195 per month. Apparently the judge added $22 for other expenses attributable to the child and arrived at the figure of $217. We cannot say that under such circumstances the award constitutes an abuse of discretion such as to require reversal by us. Huber v. Huber, 143 Colo. 255, 353 P.2d 379. Again we point out that when the circumstances are such that the mother can return to work, the court must reconsider the award, for it is true, as appellant suggests, that the mother also bears part of the obligation for the support of a child of divorced parents. IV. Fourth, the appellant contends that the trial court erred in treating the family home as marital property, and in valuing the home on the basis of gross rather than net equitable value. The home, which was stipulated by the parties to have a gross sales value of $54,000, had an encumbrance of $29,300. The down payment of $13,500 was paid for out of a sum that had been inherited by the appellant. The house was owned by both parties in joint tenancy. The trial court ordered that the house was to become the sole property of the husband. It then set aside the $13,500 as the husband's separate property, and divided the remaining equity, $11,200, equally between the parties so that Lyman Rhoades was to pay $5,600 to Kay Rhoades by February 7, 1976, or when the home was sold, whichever occurred first. There was no abuse of discretion in this disposition. The equity in the house consisted of Lyman Rhoades' separate property, the $13,500 which the court properly set aside to him, and marital property, the remaining equity in the house which was acquired subsequent to the marriage. 1971 Perm.Supp., C.R.S.1963, 46-1-13(3). That the court allowed one-half of the appreciation to the wife, a joint tenant, cannot be considered an abuse of discretion. In conjunction with the disposition of the house, the appellant contends that the trial court erred in not deducting normal seller's costs from the value of the home when it purported to split between the parties the remaining equity in the home. However, these "seller's costs," which appellant claims will be approximately $5,000 are speculative at best. He may not decide to sell the house, or if he does decide to sell, he may not employ the services of a real estate agent. Furthermore, the $5,600 that he is to pay to Kay Rhoades by February 7, 1976 as her share of the equity does not carry interest. By specifically excluding interest from this payment, and figuring on the market value of the house, it appears that the trial court balanced these competing considerations to achieve an equitable result. We cannot say that this was an abuse of the court's discretion. V. The appellant next contends that the court erroneously denied him credit for *1125 maintenance and child support under temporary orders in the month of February, 1974. He asserts that he paid $250 on February 1 for that month, and on February 7, in its final order, the court ordered an increase in this amount to $467 per month, and that he paid $225 more on February 15. While it is true that the trial court could have tailored the final award to consider the amount already paid under temporary orders for the month of February, we know of no authority, and none has been cited to us that requires the court to tailor its final decree. We do not feel that that court abused its discretion in not tailoring its decree to give Lyman Rhoades credit for money already paid. IV. Finally, the appellant contends that 1971 Perm.Supp., C.R.S.1963, 46-1-30 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution in that it discriminates against non-custodial parents and children of divorced parents. Basically, the appellant argues that this statute, which gives the custodial parent the right to determine the child's upbringing, "including his education, health care, and religious training," denies to him, a non-custodial parent, the equal protection of the law. This argument is totally without merit. A legislative classification, where, as here, the class created is not a suspect one, need only be "reasonable, not arbitrary, (resting) upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989. Here it is obvious that the legislature considered that the best interest of the child would be served by having these crucial decisions made by the parent who has the most constant and intense contact with the child the custodial parent. We fail to see how such a statutory resolution of the problems caused by constant buffeting of a child between two parents who disagree on the issues of the child's upbringing, including his education, health care and religious training, is arbitrary and without a rational basis. The judgment of the district court is affirmed. KELLEY and ERICKSON, JJ., do not participate. NOTES [1] Now Section 14-10-130, C.R.S.1973.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373253/	236 Ga. 349 (1976) 223 S.E.2d 710 WHITE v. BRYAN. 30629. Supreme Court of Georgia. Argued January 13, 1976. Decided February 24, 1976. Reinhardt, Whitley & Sims, John S. Sims, Jr., for appellant. Cheryle T. Bryan, for appellee. UNDERCOFLER, Presiding Justice. Wendell Willard White filed a habeas corpus complaint seeking to obtain the custody of his four-year-old daughter from her stepfather. The mother of the child is dead. After hearing evidence the trial court found that the child had lived with her stepfather since November 3, 1973; that the father, the stepfather and maternal and paternal grandparents all expressed a willingness to accept custody of the child; that the father has over the past several years shown very little interest in said child; 350 that he drinks alcoholic beverages excessively on occasions necessitating arrests and some minor convictions; that the father was abusive to law enforcement officers on one of the arrests for driving while intoxicated; that the lifestyle of the father is not conductive to a healthy environment for a young girl, that the father recently lived with a woman, not his legal spouse for approximately one year, and that he is unfit to rear said child, has made no plans for taking actual possession of her, and only has plans for some future time when he is "settled," that the stepfather has a genuine love and affection for the child, is financially able to care for and rear her, is morally fit, and has made suitable arrangements for child care services while he is working. The trial court awarded custody of the child to the stepfather. The appeal is from this judgment. Held: A parent may lose the right to custody only if one of the conditions specified in Code §§ 74-108, 74-109 and 74-110 is found to exist, or, in exceptional cases, if the parent is found to be unfit. Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975); Williams v. Ferrell, 231 Ga. 470 (1) (202 SE2d 427) (1973); Perkins v. Courson, 219 Ga. 611 (135 SE2d 388) (1964). The unfitness of the parent should be shown by clear and convincing evidence that the circumstances of the case justify the court in acting for the best interest and welfare of the child. Code § 50-121; Heath v. Martin, 225 Ga. 181 (2) (167 SE2d 153) (1969); Shaddrix v. Womack, 231 Ga. 628 (6) (203 SE2d 225) (1974); Patman v. Patman, 231 Ga. 657 (203 SE2d 486) (1974). Cases to the contrary such as Bond v. Norwood, 195 Ga. 383 (24 SE2d 289) (1943); Morris v. Grant, 196 Ga. 692 (27 SE2d 295) (1943); Woods v. Martin, 212 Ga. 405 (1) (93 SE2d 339) (1956); and Mills v. Mills, 218 Ga. 686 (130 SE2d 221) (1963) will not be followed. ". . . [I]f there is `reasonable evidence' in the record to support the decision made by the habeas corpus court . . . then the decision of the habeas corpus court must prevail as a final judgment, and it will be affirmed on appeal." Robinson v. Ashmore, 232 Ga. 498, 500 (207 SE2d 484) (1974). Judgment affirmed. All the Justices concur, except 351 Gunter, J., who dissents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266218/	681 A.2d 901 (1996) Peter J. ROCK et al. v. STATE of Rhode Island et al. No. 94-618-Appeal. Supreme Court of Rhode Island. August 9, 1996. Stephen Rappoport, Maria Medeiros Wall, Providence, for Plaintiff. Arlene M. Violet, East Providence, James R. Lee, Michael G. Sarli, William L. Wheatley, Providence, for Defendant. OPINION MURRAY, Justice. The case before us is a wrongful-death action filed by the plaintiffs, Peter J. Rock and Linda K. Rock (plaintiffs), against a number of defendants including the State of Rhode Island and Motoring Technical Services, Inc. (Motoring). This action arises out of the sexual assault and murder of the plaintiffs' minor daughter, Kimberly Ann Rock, by Robert Jewett (Jewett). During the course of the "proceedings below, Motoring filed a motion for summary judgment, which was 902 granted by the Superior Court on August 30, 1994. This case comes before us now on the appeal by the plaintiffs from the summary judgment entered in favor of Motoring. This appeal therefore involves the defendant Motoring only. After reviewing the record before us, we affirm the Superior Court's entry of summary judgment in favor of Motoring. The facts giving rise to the instant appeal are as follows. Jewett was an inmate at the Rhode Island Training School (training school), serving a sentence on a charge of first-degree sexual assault of a twelve-year-old girl; Jewett was a minor at the time he was charged with that crime. While incarcerated, Jewett participated in a temporary community-placement program with Motoring. Motoring is a private vocational-training school open to the general public. In his application to the program at Motoring, Jewett indicated that he was incarcerated for breaking and entering only. Neither Jewett nor Robert McCutcheon (McCutcheon), in his capacity as an agent for the state, provided any information to Motoring regarding Jewett's prior adjudication for sexual assault. McCutcheon did inform Motoring, however, that Jewett was to be treated "like any other student." Jewett was not to be given any special supervision. He also informed Motoring that Jewett would be escorted to and from Motoring's premises in a state transport van and that Jewett was to eat his lunch on the premises. In addition, Motoring was to contact the training school whenever Jewett was absent or whenever a disciplinary problem arose. On or about January 22, 1990, Jewett began classes at Motoring. On February 8, 1990, during a morning recess, Jewett left Motoring's premises. He entered plaintiffs' home, which was located approximately one block from Motoring, and sexually assaulted and murdered plaintiffs' minor daughter. On October 30, 1991, Jewett pleaded guilty to first-degree murder and was sentenced to life imprisonment. The plaintiffs have now filed the instant wrongful-death action against numerous defendants including Motoring. In regard to their claim against Motoring, the complaint alleged that "Motoring owed a duty of care to Kimberly Ann Rock which included, inter alia, a duty to adequately monitor and supervise Training School inmate Robert E. Jewett while he was a participant in the [temporary-community placement] Program at Defendant Motoring] S[chool]." Motoring subsequently filed a motion for summary judgment, arguing that it owed no duty to plaintiffs under the facts of the instant case. The Superior Court justice agreed and found that Motoring did not owe a duty to plaintiffs. On August 30, 1994, summary judgment was entered in favor of Motoring. The plaintiffs have now filed the instant appeal with this court. As we address the issues raised in this appeal, any additional facts as may be necessary will be provided. We pause now to make an observation with respect to one of the facts as related by the dissent. We find nothing in the record before us in reference to the deposition of Thomas Ring that would have alerted Motoring, in this first-time venture with the state, that this inmate had violent tendencies. The cases quoted in the dissent involve entities which were in the business of admitting inmates. The case before us involves an entity, which as the record indicates, did not make it a business to take in inmates. This was Motoring's first and last contact with the penal system of the State of Rhode Island. When reviewing the granting or the denial of a motion for summary judgment, this court applies the same analysis that the motion justice applied. See E.W. Audet & Sons, Inc. v. Fireman's Fund Insurance Co., 635 A.2d 1181 (R.I.1994). Rule 56(c) of the Superior Court Rules of Civil Procedure provides that after a hearing on a motion for summary judgment, "[t]he 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." Our review includes examining the pleadings and the affidavits in a light most favorable to the party opposing 903 the motion. E.W. Audet & Sons, Inc., 635 A.2d at 1185. We shall uphold the Superior Court's order granting summary judgment "[o]nly when our review reveals no issues of material fact, and the moving party is entitled to judgment as a matter of law." Barratt v. Burlingham, 492 A.2d 1219, 1220 (R.I. 1985). Here plaintiffs argue that the trial justice erred in granting summary judgment in favor of Motoring. They contend that material issues of fact exist regarding Motoring's negligence in supervising Jewett and in placing him in an adult program which allowed him to roam freely off the school premises. We note that in order for plaintiffs to recover in a negligence action, they must prove, inter alia, a duty or an obligation owed by Motoring. Ferreira v. Strack, 636 A.2d 682, 685 (R.I.1994) ([a] defendant cannot be liable under a negligence theory unless the defendant owes a duty to the plaintiff'). Accordingly, the threshold issue to be determined on appeal is whether Motoring owed a duty to plaintiffs in the instant case. We have stated that as a general rule the existence of a duty is a question for the court and not for the jury. See id; Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1224 (R.I.1987). This court has previously recognized the difficulty of constructing a workable test to determine whether a duty exists in a particular case. See Ferreira, 636 A.2d at 685. We have stated that foreseeability of harm to a plaintiff is a factor to be considered when evaluating whether a duty exists. Builders Specialty Co. v. Goulet, 639 A.2d 59, 60 (R.I.1994); see Banks, 522 A.2d at 1225. However, "foreseeability of injury does not, in and of itself, give rise to a duty." Marchetti v. Parsons, 638 A.2d 1047, 1051 (R.I.1994). We are mindful that any consideration regarding the existence of a duty in a particular case "should reflect considerations of public policy, as well as notions of fairness." Ferreira, 636 A.2d at 685. In light of the above principles we now turn to the specific issue before us, which is whether Motoring owed a duty to plaintiffs. For the reasons stated below, we are not persuaded by plaintiffs' contentions that Motoring was under a duty to supervise Jewett or that Motoring was under a duty to investigate further into Jewett's juvenile record in order to prevent the type of harm sustained by plaintiffs as a result of Jewett's criminal actions. There is nothing in the record to indicate that Motoring could have reasonably foreseen that Jewett would leave Motoring's premises and sexually assault and murder plaintiffs' minor daughter. We note, as the Superior Court indicated, that Motoring is not a custodial or a penal facility. It is a vocational school open to the public and therefore is under no obligation to maintain continuous supervision of its students. See Beauchene v. Synanon Foundation, Inc., 88 Cal.App.3d 342, 151 Cal.Rptr. 796 (1979) (a private drug rehabilitation center to which courts referred some offenders owed no duty to the general public with respect to the precautions it took against escape of those persons who were referred to it and were accepted so that a member of the public who was shot by one who escaped from the center could not recover from the center on a negligence theory). See also Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987) (although the university exercised a large degree of control over student activities and imposed stringent rules and regulations governing student life at the university, it did not have a legal duty to control the volitional criminal acts of its students). Although Motoring knew that Jewett was transported to and from its premises in a state-owned van and that Motoring was to inform the state if Jewett left its premises, the record before us indicates that the state never requested Motoring to provide custodial services in regard to Jewett's attendance at Motoring. In fact, the state, through its representative, dispelled any reason for Motoring's providing continuous supervision of Jewett while he attended classes at Motoring. The state portrayed Jewett as a highly motivated individual and indicated that he was among "the best kids [who were] allowed to utilize this opportunity in terms of working off grounds." The state also informed Motoring that Jewett had been allowed to spend weekends away from the training 904 school and that only one adult was required to supervise him during the weekends. It appears that the state persuaded Motoring to treat Jewett as it would any other student attending its program. In these circumstances we are not persuaded that Motoring could have reasonably foreseen that Jewett would leave its premises and subsequently commit a criminal act. We are therefore of the opinion that the trial justice correctly found that Motoring owed no duty to supervise Jewett or to prevent him from leaving its premises. Moreover, contrary to plaintiffs' assertions, the mere fact that Jewett was an inmate at the training school was not sufficient to place Motoring on notice that it was dealing with a potentially dangerous individual or that Motoring was under a duty to investigate further into Jewett's juvenile record. We note that Motoring was never fully informed of Jewett's criminal background. The record indicates that when Motoring questioned Jewett and the state regarding the reasons for Jewett's confinement, Jewett informed Motoring that he was incarcerated for a breaking and entering charge only. Neither he nor the state apprised Motoring of the rape and attempted-strangulation charge. As the Superior Court noted, Motoring could not have obtained, nor was it able to obtain, such information. Because Jewett was a juvenile at the time he was adjudicated of the charge of rape and attempted strangulation, Motoring was precluded from obtaining this information pursuant to G.L.1956 § 42-72-8.[1] We therefore cannot conclude that Motoring could have reasonably foreseen that Jewett would enter plaintiffs' home and sexually assault and murder plaintiffs' minor daughter. We are mindful that the facts of this case as construed by the dissent could seduce one into a belief in an interpretation of the law that would impose a duty upon the Motoring. Unfortunately, the facts of the record do not support such a construction. There is not a shred of evidence that Motoring had the slightest notice that Jewett was dangerous or had been so regarded by the authorities at the training school. Indeed, the evidence and the record indicate precisely the contrary. He was represented to Motoring as a good student who was about to be released from custody. The fact of the mode of transportation by van from the training school to Motoring's premises was utterly without significance. Any training school resident would be so transported. The dissent attempts to characterize Motoring as a jailer. It was not. It was a vocational school and nothing else. The citation of Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton's, Inc. 474 A.2d 436 (R.I.1984), is without relevance. In that case Pinkerton was in the security business and hired a young man to guard a gold supply without having checked him out adequately to ascertain that he had a criminal record. Pinkerton's obligation bore no relationship whatever to that of Motoring, which was neither a jailer nor a security agency. It is significant to note that Jewett was the first and only resident of the training school who had ever been referred to Motoring as a student. Given the totality of the circumstances in the instant case, we cannot conclude that Jewett's actions were within the scope of foreseeability. There is nothing in the record to indicate that Jewett would leave Motoring's premises, arrive at plaintiffs' home, and sexually assault and murder plaintiffs' minor daughter. We therefore agree with the Superior Court's determination that defendant did not owe a duty to plaintiffs in the instant case.[2] 905 If the leap of logic suggested by the dissent were to become the law of the State of Rhode Island, such options as work-release programs for adult offenders and off-premises education and rehabilitative programs for residents of the training school would come to an abrupt end. The parties responsible for determining whether a resident can be given educational or vocational training off the training school premises are solely that of the parties who are in charge of the training school. We do not enhance this duty by punishing the innocent. If Jewett had been sent into a university or a secondary school setting for off-premises education, he would not then have become subject to a custodial arrangement. The duty of custody remains that of the state, not of an educational institution which is persuaded to accept a resident for the limited purpose of education and training. In reaching our decision today, we are mindful that any consideration in the instant case must reflect not only public policy but also notions of fairness. As indicated earlier, Motoring was under no obligation to treat Jewett differently from other students attending its program, was never informed of Jewett's juvenile record regarding the earlier charge of rape and attempted strangulation, and was precluded by law from obtaining such information. In these specific circumstances we believe that it would be contrary to fundamental notions of fairness to impose a duty upon Motoring in situations in which Jewett's actions were volitional criminal acts for which Motoring had absolutely no reasonably foreseeable notice. Since we find that no duty was owed by Motoring to the plaintiffs in the instant matter, we need not reach the plaintiffs' remaining issues raised on appeal. We are of the opinion that the trial justice did not err in granting summary judgment in favor of the defendant Motoring. We therefore affirm the summary judgment entered in Superior Court. The plaintiffs' appeal is denied and dismissed, and the papers of this case are remanded to the Superior Court for further proceedings against the remaining defendants. FLANDERS, Justice, with whom LEDERBERG, Justice, joins, dissenting. This case calls upon us to decide whether a private business corporation that, for a profit, owns and operates a vocational-training facility located in a residential neighborhood and whose clientele included at least one inmate who was serving a sentence for having committed violent juvenile offenses owed any duty to its neighbors to exercise reasonable care (1) in ascertaining the inmate's juvenile-offense record and in investigating his background to determine whether to allow him to enter onto and to remain on its property to obtain vocational training; (2) in determining the appropriate level of supervision, monitoring, and control that should have been implemented as a condition of voluntarily allowing him to enter onto and to remain on its property to obtain such training (once it decided to permit entry in the first place); and (3) in monitoring and supervising the inmate during that portion of the day when he was supposed to be in training on its premises. Because I believe a duty of care existed in the circumstances of this case, I respectfully dissent from the majority's opinion that reaches a contrary conclusion. Facts[3] The plaintiffs, Peter and Linda Rock, were the parents of a now-deceased seventeen-year-old girl named Kimberly Ann Rock, who was brutally raped and murdered in her parents' East Providence home on February 8, 1990, by one Robert Jewett. At the time of 906 his rape and murder of plaintiffs' daughter, Jewett was an eighteen-year-old inmate of the Rhode Island Training School, still serving out his sentence for having raped and attempted to murder another young girl just two years earlier. The defendant, Motoring Technical Services, Inc. (Motoring), is a privately owned corporation in the business of providing vocational instruction and technical job skills to persons who apply for and are accepted into one of its training programs. For a fee paid to Motoring with public funds, Motoring allows trainees to come onto its property and to attend classes at the commercial training facility that it owns and operates in a residential area of East Providence, Rhode Island. On premises that are located one block from plaintiffs' home, Motoring teaches trainees various technical trades such as automotive and small-engine mechanics. Through arrangements made with the State of Rhode Island, Robert Jewett was one such trainee whom Motoring, for a fee, agreed to instruct at its East Providence facility. However, as Motoring well knew from the application that Jewett submitted, this trainee was different from its other charges. Indeed, when Motoring voluntarily undertook to allow him to enter upon its premises and to begin training him there in automotive mechanics, Jewett was still a Rhode Island Training School inmate who was incarcerated by the state and serving out his sentence at the training school. Moreover, Jewett was not just any juvenile delinquent; rather, he was a rapist and an attempted murderer of a twelve-year-old girl.[4] Although neither the state nor Jewett's application to Motoring disclosed his prior rape and attempted-murder offenses, his application to Motoring did admit that Jewett had been convicted of an unspecified number of breaking and entering offenses (B & Es). If not an outright falsehood, this statement was at least an incomplete rendition of Jewett's actual juvenile record of offenses because, at a minimum, it omitted his delinquency adjudication for rape and attempted murder. Nonetheless, Jewett's application served to put Motoring on notice that it was dealing with someone who, by his own admission, had a history of committing violent acts and who was still incarcerated for such offenses at the very time when he would be on Motoring's property undergoing training.[5] Notwithstanding these giant red flags raised by Jewett's application, Motoring requested no particulars from the state or from Jewett concerning the nature, number, and temporal proximity of Jewett's admitted B & Es, or concerning the truth and completeness of Jewett's history of past offenses as stated on his application to Motoring.[6] Nor did it take any steps to obtain for itself an accurate picture of just what kind of an inmate it was about to bring onto its property for extended periods and thereby expose to danger innocent members of the public like plaintiffs and their daughter. 907 Moreover, the state told Motoring that it would have a guard drive Jewett in a state van to Motoring's East Providence property every weekday morning when classes were held, wait there until Jewett entered upon Motoring's property, and then return to pick up Jewett in the afternoon at the end of each class day, during which Motoring was supposed to be teaching Jewett to become an automobile mechanic. Most importantly, before Motoring agreed to accept Jewett for training at its facility, the state told Motoring that Jewett should not be allowed to leave Motoring's premises at any time during his presence there, not even to eat his lunch, and that if Jewett left, was ever absent, or caused any disciplinary problems, Motoring was to call the state. By now, those big red flags raised by the B & Es admission in Jewett's application and by the state's concerns about making sure that Jewett remained on Motoring's property should have been snapping and banging against Motoring's metal flagpole. Still, Motoring did nothing on its own and said nothing to the state or to Jewett to ascertain Jewett's actual record of committing violent offenses. Instead of checking into Jewett's record to determine exactly what type of person it was about to introduce to its unsuspecting employees, trainees, and neighbors, on January 22, 1990, Motoring voluntarily began to allow Jewett to enter onto its property. It did so by receiving him from the custody of his state guard, who drove him there in a van every morning, and it began returning him to the custody of the state at the end of each class day when the guard-driven state van returned to Motoring to pick up Jewett for the trip back to the Rhode Island Training School. Unfortunately for the Rock family, almost immediately after Motoring began taking in Jewett as a trainee, it failed to heed the state's instructions about the need for Motoring to monitor Jewett and to supervise his whereabouts during his presence on Motoring's property so that it could advise the state if Jewett ever left or was absent from its premises or was causing any disciplinary problem. Indeed, Motoring failed to implement any effective absence-detection or behavior-monitoring measures at all in allowing Jewett to come onto and supposedly remain on its property during the training periods, treating him as if he were no different from any other public adult enrollee in one of its training programs. Thus, although Jewett was still an eighteen-year-old juvenile, Motoring placed him in one of its unsupervised adult programs, thereby communicating to him that he would be allowed to come and go as he pleased during and between Motoring's vocational instruction classes, just like all the adult trainees in these programs. Moreover, Motoring even failed to advise the instructor it employed to train Jewett that, by Jewett's own admission on his application to Motoring, Jewett had been repeatedly convicted of B & Es (let alone that he was, albeit a fact undisclosed to Motoring, a person who had committed rape and attempted murder); that Jewett was still incarcerated for his offenses while he was attending Motoring's facility; and that at the state's request the state was to be contacted immediately if and when Jewett ever left or was absent from Motoring's premises during the class day or if he caused any other type of disciplinary problem. Instead Motoring said nothing to its own employees about Jewett's incarceration status, placed him in an adult program, and allowed him to be absent from its premises at will during the class dayall without notifying the state. To plaintiffs' everlasting regret, Jewett lost no time in fully exploiting these lax conditions at Motoring's facility. For the first two weeks of his new East Providence placement, Motoring allowed Jewett to rove at will through the residential neighborhood that borders its facility while he was supposed to be attending auto-mechanics classes and remaining on Motoring's premises during any breaks in the class day. Thus, various witnesses reported seeing Jewett repeatedly at large during class time in the East Providence neighborhood immediately next to Motoring's facility. Neighbors testified to Jewett's staring balefully at them as he furtively skulked from house to house, to observing him bound over backyard fences, and to watching him peer suspiciously at family members while crouching down across 908 the street from them as he prowled through the neighborhood. Finally, on February 8, 1990, a little over two weeks after Motoring had first received Jewett from the state's custody and taken him in as a trainee on its own property and at the very moment when Motoring was supposed to be busy instructing Jewett in the fine points of automotive mechanics, Jewett was himself busy one block away raping and killing plaintiffs' seventeen-year-old daughter. True to its previous and repeated failure to keep any tabs whatsoever on Jewett, Motoring had not only neglected to notify the state of Jewett's truancy on this fateful day but failed even to note Jewett's absence from its premises, never having undertaken any act that could effectively determine whether he was even present at its facility on any given day or at any given time. Thus, as it had done on innumerable earlier occasions in the two weeks before Jewett finally raped and murdered plaintiffs' daughter, Motoring apparently allowed Jewett to come and go as he pleased during the class day, letting him absent himself at will from its premises and from the instruction it had agreed to provide to him (though it was quite careful not to neglect pocketing the fee that was paid to it with public funds for its phantom pass at training Jewett). Motoring thereby gave Jewett every opportunity to case the neighborhood, to stake out the homes and families that could be his potential targets, and to stalk the every movement and time-of-day locations of his selected victim (plaintiffs' daughter, Kimberly Ann Rock), all of which in turn allowed Jewett to minimize if not eliminate many of the difficulties, uncertainties, and risks he normally would have faced if he had not had the generous time and planning opportunities for committing his eventual crimes that Motoring's liberal attendance and leave-taking practices so graciously afforded him. Accordingly, when Jewett decided to strike and commit his next violent crime in Motoring's East Providence neighborhood, Motoring's failure to monitor Jewett's attendance, to take notice of Jewett's repeated absences from its facility, and to notify the state of his felonious wanderlust (as it had been requested to do) all allowed Jewett the more than two weeks of planning that led up to the commission of his dastardly deeds and emboldened him to see his nasty business through to its odious end with little fear that Motoring would blow the whistle on him. Needless to say, plaintiffs, Peter and Linda Rock, undoubtedly horrified over the negligence and carelessness that had allowed Jewett to rape and then to snuff out their seventeen-year-old daughter's life, filed suit against Motoring and the state as well as the various individuals associated therewith who are allegedly responsible for their daughter's untimely and unnecessary death. A trial justice dismissed their claim against Motoring after he concluded that, as a matter of law, Motoring owed no duty of care to these plaintiffs. A majority of the court now affirms this ruling. Analysis Before a negligence claim will lie against a particular person or entity, a court must first decide whether "there exists a duty of care running from the defendant to the plaintiff * ." D'Ambra v. United States, 114 R.I. 643, 649, 338 A.2d 524, 527 (1975) ("in the first instance, [this is] a question for the court and not for the jury").[7] Although there is no "easily expressible" formula for determining whether a duty of care is present in a particular case, all relevant factors must be weighed, and "[w]here there is a widespread need for redress, the judicial system should consider very carefully before it undertakes to reject, as a matter of law, an entire class of claims." Id. at 648, 650, 652, 338 A.2d at 526, 527, 529; accord Ferreira v. Strack, 636 A.2d 682, 685 (R.I.1994) (agreeing with D'Ambra's "ad hoc approach of considering all relevant factors" in deciding whether a duty exits). In Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436, 440 (R.I.1984), we found a duty of care was 909 owed by a security-guard company "premised on its failure to exercise reasonable care in selecting a person who the employer knew or should have known was unfit or incompetent for the employment, thereby exposing third parties to an unreasonable risk of harm." (Emphasis added.) In doing so, we relied on a section of the Restatement (Second) of Torts, which provides that an actor must take precautions "[v]lue the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct." Id. at 441 (quoting Restatement (Second) Torts § 302B, cmt. e, pt. D at 91 (1965)); see also Restatement (Second) Torts § 319 ("[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm"); accord Nova University, Inc. v. Wagner, 491 So.2d 1116, 1118 (Fla.1986) (per curiam) ("[A] facility in the business of taking charge of persons likely to harm others has an ordinary duty to exercise reasonable care in its operation to avoid foreseeable attacks by its charges upon third persons. If reasonable care is exercised, there can be no liability. The alternative, the exercise of no care or unreasonable lack of care, subjects the facility to liability."); Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 279-80, 401 S.E.2d 878, 883 (1991) (applying § 319 to a privately operated "halfway house" for convicted felons that allowed an inmate to leave, rape, and kill a neighbor of the facility).[8] Here, Motoring "took charge" of Jewett when it voluntarily agreed, for a fee, to train him on its facility, when it voluntarily received him from the guard who drove the van that transported him from state custody and ushered him onto its premises, and when it allowed him to remain on its property without any state escortalways sensible that it was doing so during Jewett's tenure as an inmate serving out his sentence in Rhode Island's juvenile-detention system for having committed multiple violent offenses. Contrary to the majority's assertions, it is not the mere fact that Jewett was an inmate at the Rhode Island Training School that put Motoring on notice that it was dealing with a potentially dangerous individual or that obliged Motoring to investigate further into his record of committing violent offenses; Rather, it was the fact that Motoring knew that by his own admission Jewett had been repeatedly convicted of violent crimes (B & Es) and that the state was so concerned about the violent propensities of this juvenile rapist and attempted murderer that (1) it took him to and from Motoring's premises in a guarded van and (2) it instructed Motoring that (a) it was to notify the state if and when Jewett was ever absent from Motoring's facility and that (b) Jewett was not to be allowed to leave Motoring's premises even to eat his lunch. Only by ignoring these facts or by claiming that they are "utterly without significance" can the majority state that "[t]here is not a shred of evidence that Motoring had the slightest notice that Jewett was dangerous or had been so regarded by the authorities at the training school." In addition Motoring knew or should have known that by allowing a person with Jewett's violent background and incarcerated status to enter upon its property with no monitoring or supervision, it was placing him in a position in which he could foreseeably harm other individuals, including its other trainees, its employees, and its neighbors, if his propensity for committing violent offenses were to continue. See Restatement (Second) Torts § 281 (discussing risks to a foreseeable "class of persons"); id. § 302B 910 cmt. e, pt. D (requiring precautions when the "actor has brought into contact or association with the other" a person known to be "peculiarly likely to commit intentional misconduct," in circumstances that "afford a peculiar opportunity or temptation for such misconduct").[9] "Foreseeability," we have said, "relates to the natural and probable consequences of an act." Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I.1986). And the fact that an actor, "at the time of his negligent conduct, neither realized nor should have realized that it might cause harm to another of the particular kind or in the particular manner in which the harm has in fact occurred, is not of itself sufficient to prevent him from being liable for the other's harm if his conduct was negligent toward the other and was a substantial factor in bringing about the harm." Restatement (Second) Torts § 435, cmt. a; accord Taggart, 118 Wash.2d at 225, 822 P.2d at 258. The Taggart decision provides a useful illustration. There, a person previously convicted of assault raped a woman while out on parole. 118 Wash.2d at 201, 822 P.2d at 245-46. On the foreseeability issue, the Washington Supreme Court held that the "fact that the violence took the form of raping [the plaintiff], when [the parolee's] criminal history did not include rape, does not show that injury to [the victim] was not foreseeable. Violence against [the plaintiff] may have been foreseeable, even though the form of that violence may not have been." (Emphasis added.) Id. at 225, 822 P.2d at 258. Thus, the majority's conclusion that Motoring could not have reasonably foreseen that Jewett would enter plaintiffs' home and "sexually assault and murder plaintiffs' minor daughter" is a red herring; no such particular harm need be foreseen for a duty of care to exist.[10] Here, Jewett's admission to repeated B & Es should have been enough to alert Motoring that if it took such a person into its facility and allowed him to remain there unsupervised and unmonitored for extended periods, it should at least assume that he would be likely to break into and enter homes in the area. Thus, the likelihood of some type of violence against Motoring's neighbors was clearly foreseeable if Motoring allowed Jewett to have extended and unchecked access to them. Moreover, I disagree with the majority's conclusion that by exercising reasonable diligence, Motoring could not have obtained all the information it needed to review concerning 911 Jewett's complete history of juvenile offenses, including his previous delinquency adjudication for rape and attempted murder. Under G.L.1956 § 42-72-8(b), such records can be disclosed "when necessary" to those "individuals, or public or private agencies engaged in * * * education of the person under the supervision" of the Department of Children, Youth and Families, as well as to "individuals or public or private agencies for the purposes of temporary or permanent placement of the person, and when the director determines that the disclosure is needed to accomplish that placement." Here, the state wanted Jewett to be educated in automobile mechanics at Motoring's training school, and Jewett wanted to obtain such training. The state was prepared to provide Motoring with "whatever information was necessary" to secure the placement. Thus Motoring could have and should have insisted, as a condition of any agreement on its part to allow Jewett to enter upon its property and receive training, that Motoring first obtain full disclosure from the state under this law (or otherwise) of any pertinent records concerning the past behavior of this proposed trainee, including his complete record of juvenile offenses, before it would accept him at the school or allow him to step one foot onto its property.[11] This statute expressly provides the means and the justification by which such disclosure could have been obtained had Motoring exercised even a modicum of ordinary care and diligence. Thus, in my opinion, the majority misconstrues § 42-72-8 when it concludes that Jewett's true record of previous offenses could not have been disclosed to Motoring under this statutory provision. To be sure, the state and its agents would appear to be guilty of the most deplorable kind of malfeasance in misrepresenting and failing to disclose the precise nature of Jewett's juvenile record to Motoring. But I do not think we should permit a private business corporationespecially one like Motoring that is making a profit from public funds for every one of these potentially violent inmates that it agrees to trainto hide its head in the sand and thereby duck its own responsibilities concerning the need to ascertain the true and complete juvenile and criminal records of these individuals, especially when it comes to investigating and taking precautions against the known violent tendencies of such persons. See Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922) ("[I]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all") (Cardozo, J.). And it should do so before it voluntarily agrees to invite these inmates to come onto its property and thereby knowingly places them in a position to harm others in the foreseeable zone of danger, including its other trainees, its employees, and its neighbors like the Rock family. See Restatement (Second) Torts § 281, cmt. c (for an actor "to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of personsas, for example, all persons within a given area of dangerof which the other is a member"); see also Dudley, 241 Va. at 279, 401 S.E.2d at 883 (one who "takes charge" of a dangerous person under § 319 of the Restatement owes a duty to the "entire class of prospective victims"). But even if Motoring had no ability to compel or to dicker for the disclosure of these records as a condition precedent for admitting Jewett to its property and its training programs, I would still find that Motoring had more than enough knowledge and information to know what type of risk it was facing when it voluntarily agreed to accept this inmate as a trainee and allowed him, for a fee, to enter onto its property. Regardless of whether Jewett was Motoring's first and last inmate trainee or its millionth, Motoring was the possessor of the land and chattels that Jewett would be using during his training period, and thus it could have and should have imposed reasonable conditions on Jewett's use of its property. 912 Since it had no a priori obligation to allow Jewett access to its facilities, it certainly had not only the ability but the duty to do so.[12] For example, as a condition of allowing Jewett to participate in its training programs, Motoring could have (1) required Jewett to check in periodically when he was supposed to be present on its property, (2) assigned a guard or an employee to watch or to monitor him, (3) installed surveillance cameras, and/or (4) required Jewett to wear a band that would emit electronic signals so that his on-premises location could be monitored and verified. Moreover, notwithstanding the state's request to notify it whenever Jewett left Motoring's premises or caused a disciplinary problem, Motoring negligently failed to heed the very conditions under which it was to train Jewett and instead let him have the run of the neighborhood for the two weeks leading up to his murderous rampage, thereby affording him the luxury of stalking and staking out his eventual victim, a young girl like the one he had previously raped and almost killed. In these circumstances, it is hardly "punishing the innocent" to impose a duty of care on Motoring. Indeed, knowing Jewett was at least inclined to B & Es, let alone to rape and attempted murder, how could Motoring be free to ignore with impunity the state's instructions and its own obligation to monitor Jewett's whereabouts during the time he was on its property at the vocational school? Nonetheless, this is exactly what Motoring did when it let Jewett come and go as he pleased during the class day. The fact that Motoring is open to the public and "did not make it a business to take in inmates" is all the more reason why it should be under a duty to control a dangerous inmate like Jewett that it introduces into a residential community and allows to mix and mingle with its public trainees, employees, and neighbors. As an inmate serving out his time for having committed violent offenses, Jewett, as Motoring well knew, was no honor society student looking to burnish his resume by adding a degree in automobile mechanics to his previous record of accomplishment. It is ironic to note that if Jewett had been applying for work at Motoring as a teacher or a counselor (notwithstanding his background as a child rapist), Motoring would not have been legally privileged to rely simply on an application that admitted an unspecified number of repeated B & Es but potentially failed to disclose the worst part of his history of juvenile offenses. As in Welsh a reasonable employer would have been required to check further into the background of such a person, as Motoring failed to do here. See Welsh, 474 A.2d at 441 ("we think that background checks in these circumstances should seek relevant information that might not otherwise be uncovered").[13] 913 Contrary to the majority's assertion, there has been no attempt here to "characterize Motoring as a jailer." However, like any other possessor of land, Motoring was "required to exercise reasonable care, with regard to any activities which [it] carries on, for the protection of those outside of [its] premises." W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 57 at 387 (5th ed. 1984) (citing Restatement (Second) Torts § 371). Motoring's possession and control of the property gave it "a power of control over the conduct" of third persons like Jewett, whom Motoring allows to enter, that Motoring is "required to exercise for the protection of those outside." Id. at 392. In these circumstances the failure of the state to request that Motoring provide "custodial services" for the likes of Jewettthat is, inmates that it delivers to private entities in guarded vans while they are still serving out their sentences for having committed violent offensesis as irrelevant to determining the existence of a duty here as is the failure of the state to request maid services for them. Given Jewett's known status as a juvenile offender who, by his own admission, had been convicted of an unspecified number of violent crimes, and given his known status as an inmate still in state custody and still serving his sentence for one or more of those offenses, it requires no "leap of logic" to conclude that Motoring had no business relying on the state's blandishments about Jewett being a "highly motivated" individual and allegedly among "the best kids [who were] allowed to utilize this opportunity in terms of working off grounds."[14] It may be argued that public policy disfavors the imposition of any duty that will discourage private enterprises like Motoring from helping to impart needed job skills to our criminal populace so that these individuals may have the opportunity to become responsible citizens after they have served out their sentences. I am all for such progressive measures, but whatever salutary benefits are to be gained by providing violent juvenile offenders and convicted felons with job training must be balanced against the social cost of allowing them the opportunity to engage in murder and mayhem during their period of attempted rehabilitation. 914 Any work-release initiatives for adult convicts and off-premises educational and rehabilitative programs for training-school inmates (such as Motoring's ill-fated venture with Jewett) that do not incorporate basic security safeguards to protect the public from violent offenders deserve to come to the "abrupt end" that the majority laments would occur if the participating institutions fail to observe the same duty of care to the public that the state has in these circumstances. Indeed, for all the record discloses, the only reason "[Oils was Motoring's first and last contact with the penal system of the State of Rhode Island" was that it ended in disaster. However, after having been absolved of any duty of care to the public in entering into this type of risky business, Motoring and other such private corporations have now been given the green light to get back into the inmate-training market again with no fear that their security lapses in dealing with such inmates will result in any third-party liability. Unlike the majority, I do not think it is asking too much to impose a duty of reasonable care on those businesses like Motoring that, for a profit, expose their neighbors to the ravages of brutish criminals or violent juvenile offenders while they are supposedly being trained to become more productive members of society. Finally, it should be noted that we have no evidence in the record of any custom or usage of trade concerning what precautions, if any, are taken by other private vocational-training businesses when they are dealing with inmates of correctional facilities who have known records of violent offenses. But this, too, is of no particular moment in deciding this case. "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.) (L. Hand, J.) cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932). Conclusion For these reasons, I would vacate the decision below granting Motoring's summary judgment motion and remand this case to the Superior Court for trial. NOTES [1] General Laws 1956 § 42-72-8(a) provides that "[a]ny records of the department pertaining to children and their families in need of service pursuant to the provisions of this chapter or for whom an application for services has been made shall be confidential and only disclosed as provided by law." Although disclosure of confidential information is permitted under certain circumstances as provided for in the statute, there is nothing in the record before us to indicate that Jewett's juvenile records may be disclosed under those particular exceptions. [2] Because plaintiffs in the instant case have failed to show that Motoring knew or should have known that Jewett would cause bodily harm to others if not controlled, their reliance on the Restatement (Second) Torts § 319 is misplaced. The Restatement (Second) Torts § 319 provides that "[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." (Emphasis added.) The plaintiffs' reliance on case law which comports with the principles § 319 is equally unpersuasive. See Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 401 S.E.2d 878 (1991). [3] Because this matter is here on plaintiffs' appeal from a judgment entered against them after a Superior Court justice granted defendant's summary-judgment motion, the facts are set forth in a light most favorable to plaintiffs after all reasonable inferences have been drawn in their favor. See, e.g., E.W. Audet & Sons, Inc. v. Firemen's Fund Insurance Co., 635 A.2d 1181, 1185 (R.I.1994). [4] Jewett had been adjudicated a "delinquent" because he was under eighteen years of age when it was determined that he had committed the rape and attempted-murder offenses for which he was incarcerated and because he had committed offenses that, if committed by an adult, would have constituted felonies. See G.L. 1956 § 14-1-3(5). [5] "Breaking and entering," along with murder, manslaughter, rape, mayhem, and a host of other serious offenses, is "classified as a crime of violence in Rhode Island * ." (Emphasis added.) State v. Germano, 559 A.2d 1031, 1035 (R.I.1989) (citing G.L.1956 § 11-47-2). Indeed, breaking and entering covers a whole continuum of violent crimes ranging from breaking and entering into a dwelling without the consent of the owner or tenant, see G.L.1956 § 11-8-2, to breaking and entering with the intent to commit murder or sexual assault. See §§ 11-8-3, 11-8-4. [6] According to Robert M. McCutcheon, the state official responsible for placing Jewett with Motoring, he was authorized to "tell [Motoring] whatever information was necessary in order to secure the placement or job." However, McCutcheon also claimed that if he had been asked, he would have told Motoring that he could not discuss Jewett's history of past offenses but that Motoring could ask Jewett about it. Since Motoring failed to ask the state any questions about Jewett's record or background, we do not know what information pertinent to Jewett's true and complete record of juvenile offenses would have been disclosed to it by the state, especially if Motoring had communicated that its receipt of such information "was necessary * * to secure the placement" of Jewett with Motoring. [7] "[A] legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court." Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 458 (1897). [8] For an additional case addressing the duty question in a parolee context, see Taggart v. State, 118 Wash.2d 195, 220, 822 P.2d 243, 255 (1992) ("[w]hen a parolee's criminal history and progress during parole show that the parolee is likely to cause bodily harm to others if not controlled, the parole officer is under a duty to exercise reasonable care to control the parolee and to prevent him or her from doing such harm"); id. at 223, 822 P.2d at 257 (adding "a parole officer may `take charge' of a parolee, thereby assuming the duty to protect reasonably foreseeable dangers, despite the absence of a custodial relationship and without exercising * * * `continuing hourly or daily dominance and dominion' over that parolee"). [9] Indeed, the danger such inmates would present to the public if they were allowed to come and go as they pleased during the period they are serving out their sentences is part of the reason why such individuals are incarcerated and restrained by the state for their crimes or offenses in the first place, see State v. Ouimette, 117 R.I. 361, 367-68, 367 A.2d 704, 708 (1976) (noting, among other reasons, that persons are incarcerated to "protect society" from their "antisocial behavior"), and why (among its other precautions) the state uses guard-driven vans when such inmates need to be transported from one place to another. Far from being "utterly without significance," the importance of this fact and the other indicia of the state's efforts to "protect society" from Jewett while he was still incarcerated for his offenses should have been apparent to Motoring. [10] There are, of course, many situations in which an actor "is required to anticipate and guard against the intentional, or even criminal, misconduct of others." (Emphasis added.) Restatement (Second) Torts § 302B, cmt. e. Generally, these situations may arise when, for example, "the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct * * ." (Emphasis added.) Id. Thus, actors like Motoring must take reasonable care when they have "brought into contact or association with the other a person whom the actor[s] know[ ] or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct * * " or when they have "taken charge or assumed control of a person whom [the actors] know[ ] to be peculiarly likely to inflict intentional harm upon others." (Emphases added.) Id., cmt. e, pts. D F. According to the Restatement, a clear cut example is a situation where "A, who operates a private sanitarium for the insane, receives for treatment and custody B, a homicidal maniac. Through the carelessness of one of the guards employed by A, B escapes, and attacks and seriously injures C. A may be found to be negligent toward C." cmt. e, pt. F, illus. 12. [11] Indeed, I know of no reason why Motoring, as a condition of admitting Jewett to its training program, could not have obtained both his consent and that of the state to its taking reasonable measures to monitor Jewett's presence and to prevent his unauthorized absence from its premises during the training periods. [12] See Restatement (Second) Torts § 318 ("[i]f the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control"). [13] Employers like Motoring may be directly liable to "third parties who are injured by acts of unfit, incompetent, or unsuitable employees." Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton's Inc., 474 A.2d 436, 438 (R.I.1984). In Welsh, we noted that the tort of "negligent hiring addresses the risk created by exposing members of the public to a potentially dangerous" person. (Emphasis added.) Id. at 440 (quoting Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982)). Although several cases guided our analysis in Welsh concerning whether employers may be held legally accountable for the wrongful acts of their negligently hired employees, one is particularly instructive. See id. at 438-39 (discussing Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.1983)). In Ponticas a tenant raped by the manager of her apartment complex sued the owner on the theory that the owner was negligent in hiring the manager, a person on parole following a conviction for burglary and receiving stolen goods. Like Jewett, the manager tried to play down his criminal past by writing on his application that he had been convicted only of traffic violations. The Ponticas court held that employers have a duty to exercise reasonable care in selecting persons that could pose a threat to the general public. See id. at 438 (discussing Ponticas). Thus, if Motoring had hired and paid Jewett as an auto-mechanic trainerinstead of getting paid to train him as an auto mechanicit would be subject to liability under Welsh if it negligently allowed him to "fix" the neighbors while he was supposed to be fixing cars. It is anomalous, to say the least, that Motoring's duty of care owed to third parties like these plaintiffs should vanish merely because it is getting paid public money to train Jewett instead of paying him to train other [14] Moreover, as a matter of fact, Motoring did assume a form of limited "custody" over Jewett when it agreed to train him on its property under an arrangement whereby it was requested to notify the state if he ever left the premises or was absent. As a status defined by the nature of varying relationships, custody can exist on different levels of a continuum. See Black's Law Dictionary 384 (6th ed.1990) (the "term is very elastic" and may include the "keeping, guarding, care, watch, inspection, preservation or security of a thing"). Indeed, what constitutes custody is a relative concept, dependent more on the degree of relinquishment of control by an actor over a person or thing and the assumption of responsibility with respect thereto by another actor than any other factors. For example, when patrons leave their jackets with a person who staffs a restaurant's coatroom, they are giving the restaurant custody of their jackets even if they have no intention of leaving them there for more than an hour. Similarly, if these same patrons turn over their car keys to a valet when they go to the restaurant or attend some other function, they are temporarily relinquishing custody of their vehicles to the control of another who takes responsibility for them during the short time they remain there in the custody of the valet service, garage, or parking lot. Or when they leave their children with a babysitter, the babysitter takes custody of the children for the limited time that they are away. See Pettery v. Groff, 491 N.E.2d 583, 585 (Ind.Ct.App.1986) (a babysitter relationship is a custodial one giving rise to a duty of care). The fact that they have not requested any of these custodians to provide custody is immaterial, as is the fact that they hardly intend to relinquish complete control to them or even to give them custody overnight. Similarly, the important fact here is not that the state failed to request Motoring to take custody of Jewett but that in accepting Jewett for training, Motoring knew or should have known that, because of Jewett's incarcerated status and admitted record of violent offenses, the state was not intending, nor was Motoring permitted, to turn Jewett into a free agent after he entered Motoring's premises, allowing him to come and go as he pleased. Indeed, even if the state had expressly told Motoring that this is how it should treat Jewett, Motoring should not thereby be absolved from all liability if it ignored Jewett's admitted violent propensities and simply took him in with no monitoring of or restrictions on his movements.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266221/	545 Pa. 500 (1996) 681 A.2d 1295 COMMONWEALTH of Pennsylvania, Appellee, v. Kenyatta MILES, Appellant. Supreme Court of Pennsylvania. Argued January 25, 1996. Decided July 31, 1996. 505 Michael Wallace, John Belli, Philadelphia, for Kenyatta Miles. Catherine Marshall, Karen A. Brancheau, Philadelphia, for Com. Robert A. Graci, Harrisburg, for Office of Atty. Gen. Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ. OPINION NEWMAN, Justice. Kenyatta Miles (Miles) directly appeals from the judgment of sentence imposing the death penalty entered on October 23, 1993 by the Court of Common Pleas of Philadelphia County (trial court). We affirm the verdict and the sentence of death. 506 I. FACTS The evidence at trial established that on March 17, 1990, Allan Gore and Christopher Demby, both fifteen years old, were shopping for new sneakers on the corner of Fifty-Second and Chestnut Streets in Philadelphia. Leroy Thompson, an unlicensed cab driver, testified that he drove eighteen-year old Kenyatta Miles, Andre Kinard and sixteen-year old Michael Henry, co-defendants, to the same shopping center on March 17, 1990. The three co-defendants were searching for someone who had allegedly assaulted Miles earlier in the day. Both Miles and Henry were carrying handguns; Miles had a.357 Magnum and Henry had a .22 caliber pistol. Demby and Gore each purchased sneakers at Samsung, a store located in that shopping center. When Demby and Gore were leaving the store, Miles approached Gore and asked him about his new sneakers. Gore responded that the sneakers were Jordan's, size eight and one-half. Gore and Demby then went to Jean's World, another store, to purchase hats. Upon exiting Jean's World, Miles and co-defendants Kinard and Henry approached Demby and Gore. Miles pushed Gore against a window and ordered him to hand over his new sneakers. As Miles and Gore were struggling over the bag containing the sneakers, Miles used his .357 Magnum to fire at Gore, but the bullet missed him. Simultaneously, Kinard pushed Demby and attempted to forcibly take his bag containing the sneakers. Then, Henry fired a bullet from his .22 caliber pistol at Demby that did not hit him. Miles fired a second shot that also missed Gore, but his .38 caliber bullet hit Demby in the heart. Miles, Kinard and Henry then fled from the scene carrying Demby's sneaker bag. Demby died at the scene. On April 4, 1990, police arrested Miles on charges of murder, voluntary manslaughter, aggravated assault, possession of an instrument of crime, generally, and two counts of robbery. The police interviewed Miles concerning the murder. During the interview, Miles confessed to his involvement in Demby's murder. Miles admitted that he fired a handgun in the 507 shopping center at the corner of Fifty-Second and Chestnut Streets on March 17, 1990. The police also arrested co-defendants Kinard and Henry who gave inculpatory statements to the police. II. PROCEDURAL HISTORY The trial court tried all three co-defendants together. On February 20, 1992, a jury found Miles guilty of murder in the first degree,[1] criminal conspiracy,[2] two counts of robbery,[3] aggravated assault[4] and possessing an instrument of crime.[5] The jury fixed the penalty for first degree murder at death. On October 29, 1993, the trial court imposed the sentence for Miles' other convictions as follows: five to ten years for criminal conspiracy; ten to twenty years for each count of robbery; ten to twenty years for aggravated assault; and two and one-half to five years for possession of an instrument of crime. Thus, the trial court sentenced Miles to thirty-seven and one-half years to seventy-five years on the remaining charges.[6] On February 22, 1995, Miles filed a Notice of Automatic Appeal with this Court.[7] 508 III. ISSUES In his Statement of Matters Complained of on Appeal, Miles raises the following six issues: 1. Whether the ineffective and prejudicial redaction of Miles' co-defendants' statements violated Miles' rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). 2. Whether the trial court erred in denying Miles' Motion to Sever. 3. Whether the prosecutor made several improper comments that individually and in the aggregate deprived Miles of a fair trial. 4. Whether the trial court committed reversible error during its instruction concerning the crime of murder in the second degree. 5. Whether the trial court erred in denying Miles' Motion to Suppress his statement. 6. Whether the trial court erred in initially overruling Miles' objection to the introduction of inadmissible prior crimes evidence. Sufficiency of Evidence Although Miles has not specifically challenged the sufficiency of the evidence supporting his first degree murder conviction, we will nonetheless independently review the evidence pursuant to the standard established in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982). When viewed in the light most favorable to the Commonwealth as verdict winner, the evidence and all reasonable inferences from that evidence must support the jury's finding of guilt beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Evidence is sufficient to sustain a conviction for first degree murder when the Commonwealth establishes the defendant acted with specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with deliberation. 18 Pa.C.S. 509 § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). A specific intent to kill can be inferred by the use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Butler, 446 Pa. 374, 288 A.2d 800 (1972). Here, the medical examiner's testimony, Gore's eyewitness testimony, co-defendants' statements and Miles' admissions establish that Miles shot a .38 caliber bullet from a.357 Magnum that pierced Demby's heart and killed him. Furthermore, the similar statements by Miles, Kinard and Henry clearly support the verdict in this case. All three defendants admitted in their statements that they were at the shopping center outside of Jean's World on March 17, 1990. The three defendants agreed that Miles and Henry were armed with a .357 Magnum and a .22 caliber pistol and that both Miles and Henry fired their handguns. Finally, all three defendants agreed that Demby's sneaker bag was stolen. Gore's eyewitness testimony also clearly supports the jury's verdict in this case. Gore identified the three defendants as his attackers. He also testified that he saw both Henry and Miles shoot their handguns. Additionally, Charles Williams testified that he gave Miles a.357 Magnum early in the day on March 17, 1990, because Miles claimed that someone had tried to rob him. Williams met Miles late in the evening on March 17, 1993 and purchased Demby's sneakers from Miles. Williams also testified that Miles admitted he had shot someone at the shopping center. Finally, Darryl Bryant testified that he saw Williams give Miles a .357 Magnum on March 17, 1990. Bryant also testified that he saw Miles use the .357 Magnum to rob a young boy hours before Demby's murder. After a review of the record, we find that the evidence is sufficient to support Miles' conviction for first degree murder. Issues 1 and 2: Violation of Miles' Bruton Rights We consider Miles' first and second issues together. First, Miles argues that the redaction of his name from his co-defendants' 510 statements was not sufficient to protect him from undue prejudice. Miles contends that despite the redaction, the co-defendants' statements remained powerfully incriminating, thus violating his right to confrontation as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the U.S. Supreme Court held that the introduction of a non-testifying co-defendant's incriminating statement that implicates another defendant deprives that defendant of his Confrontation Clause rights. Thus, in Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), we held that the Commonwealth could introduce the redacted statement of a co-defendant as evidence in a joint trial only if that statement in no way refers to the other defendant. All three co-defendants in this case gave similar inculpatory statements to the police. Henry and Kinard waived their rights to have their respective co-defendants' statements redacted. Miles, however, chose to have his name redacted from Henry's and Kinard's statements. The trial court then ordered the substitution of Miles' name with the letter "X" in both statements, which were subsequently introduced into evidence. In Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995), the defendant argued that although his name was replaced with an "X" in his co-defendant's statement, when the statement was read in the context of the Commonwealth's other evidence, it was clear that Lee was "X". This Court held that replacing any specific reference to the defendant from a co-defendants' statement using an "X" can protect the defendant's rights if a proper limiting instruction is given. Lee. Besides redacting the co-defendants' statements, the trial court cautioned the jury during the trial that each statement should only be evaluated as evidence against the defendant making the statement. The trial court repeated that instruction in its charge to the jury. Thus, the trial court complied with Johnson and Lee and this claim fails. Second, Miles argues that the trial court erred in denying his Motion to Sever the trials of the three co-defendants. 511 Miles restates his argument that he was prejudiced because his co-defendants' statements were redacted using an "X" and the jury could not have failed to understand that the letter "X" in the co-defendants' statements represented Miles. However, as already discussed, the substitution of the letter "X" for a defendant's name does not violate that defendant's Bruton rights if a proper limiting instruction is given, as it was in this case. Lee. Thus, because Miles has failed to demonstrate how being tried with co-defendants unduly prejudiced him, this claim fails. Issue 3: Prosecutorial Misconduct Miles contends the prosecutor made improper comments on four occasions during his closing remarks, which deprived Miles of a fair trial. In reviewing the prosecutor's comments, we note that a prosecutor "must be free to present his or her arguments with logical force and vigor." Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986, 989 (1980). Reversible error only exists if the prosecutor has "deliberately attempted to destroy the objectivity of the fact finder" such that the "unavoidable effect" of the inappropriate comments would be to create such bias and hostility toward the defendant that the jury could not render a true verdict. Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). This is a decision for the trial court that will not be disturbed absent an abuse of discretion. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979). We now review the allegedly improper comments. First, Miles alleges the prosecutor violated his Bruton rights during closing arguments by inadvertently reading his nickname "Yattie" in Kinard's statement. Throughout the trial, witnesses and counsel repeatedly referred to Miles using his nickname "Yattie". Thus, the jury was aware that "Yattie" is Miles' nickname. Miles specifically argues that this redaction error prejudiced him because the prosecutor, by reading Miles' nickname, used Kinard's statement to incriminate 512 Miles.[8]Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980). In Rawls, the only case Miles relies upon, the prosecutor, during closing arguments, read from a co-defendant's redacted statement in order to corroborate the evidence in the defendant's confession. The Superior Court held that it was error for the prosecutor to refer to the co-defendant's redacted confession as evidence against the non-confessing defendant. Id. However, the Superior Court held a new trial was not warranted because the trial court appropriately instructed the jury that the statement was to be considered only against the defendant who made the statement. Id. Miles contends that the error in this case cannot be so easily dismissed because the Commonwealth improperly redacted the statement and the trial court made no special efforts to protect the jury from using Kinard's statements against Miles. However, in Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992), we adopted the reasoning of the U.S. Supreme Court's in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). We held that the `mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.' Wharton, 530 Pa. at 143-44, 607 A.2d at 718 quoting Schneble, supra at 430, 92 S.Ct. at 1059. Here, the inadvertent use of Miles' nickname was a violation of the Bruton rule. However, considering the overwhelming evidence of Miles' guilt, including his confession and eyewitness testimony, it is clear beyond a reasonable doubt that the error is harmless. Id. Furthermore, 513 as in Wharton, the trial court cautioned the jury to only consider the statement against the statement's maker. Id. Accordingly, this claim fails. Second, Miles objects to the prosecutor's description of one of co-defendant Kinard's character witnesses, Jack McMahon. McMahon met Kinard when he was the Assistant District Attorney for a homicide trial in which Kinard was a witness for the Commonwealth. Subsequently, McMahon established a private criminal defense practice. The prosecutor here stated that McMahon was someone "who makes his living defending criminals". Notes of Testimony, February 19, 1992 at 113. Miles argues that the prosecutor was implying that all defense counsel, including Miles' counsel, defend criminals and therefore Miles, whom a criminal defense attorney represented, is a criminal. Thus, Miles contends that this statement stigmatized both Miles and his attorney and constituted reversible error. A prosecutor must argue only those inferences that reasonably derive from the evidence of the trial. Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987). Here, Mr. McMahon testified that he was a criminal defense attorney. N.T. 2-13-92 at 33. Thus, the prosecutor's remark, although intemperate, was a reasonable inference from the evidence presented at trial and was not so unduly prejudicial as to require a new trial. Third, Miles contends the prosecutor's comparison of the conduct of the three defendants to the hunting style of animals of prey violated his right to a fair trial. Specifically, the prosecutor noted that one defendant grabbed Demby's sneakers while a conspirator shot at Demby and the third defendant struggled with Demby's friend. The prosecutor described this cooperation to the jury as follows: [D]id you ever see those nature shows, the nature shows where they show animals of prey? . . . you see them chasing a de[e]r [sic], innocent animal, a[n] animal which serves as their prey. They rarely do it alone. Rarely does one attack by itself. There's one that jumps up and snaps the neck of 514 the de[e]r with one bite and another one that jumps up and tears the flesh of the slain off with one bite. They all can join together. They snip and tug and bite and snap until they get what they're after. They all share. They all act together. That's what you saw here. N.T. 2-19-92 at 124. Our Court has held that as long as there is a reasonable basis in the record for the comments, we will permit vigorous prosecutorial advocacy. For example, in Commonwealth v. Jones, 530 Pa. 591, 617, 610 A.2d 931, 943 (1992) we upheld a prosecutor's comments that defendants were a "murdering, child-killing, backshooting" trio, "slaughterers" and "executioners" because the comments were reasonably based upon the evidence produced at trial. Further, we will only reverse the trial court if the unavoidable effect of the prosecutor's comments is to create hostility against the defendant such that the jury is hindered in its job of objectively weighing the evidence. Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642 (1995). The prosecutor's comments in this case were reasonably based upon the record that the defendants acted in concert when attacking Demby and Gore. Here we find that the prosecutor's comments could not have prejudiced the jury to the point of thwarting their objectivity.[9] However, Miles cites our holding in Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974) to support his argument that the prosecutor's comments constitute reversible error. In Lipscomb, we granted the defendant a new trial because the prosecutor improperly concocted testimony from the deceased victim. The prosecutor said, 515 You know, my best witness isn't here today. But if he could come back, if Mr. Sweeney could come back and sit in this chair and face you, the jurors, I believe he would say, `I didn't want to die. . . . I didn't know this would be my last walk. I didn't know that a bunch of hoodlums and animals would pounce upon me and tear me apart'. Lipscomb, 455 Pa. at 527, 317 A.2d at 206. We held the prosecutor improperly injected his personal opinion in the closing argument by stating the victim would call the defendants "hoodlums and animals". Here, the prosecutor did not similarly reveal his personal opinion of the defendant's guilt. Moreover, even if it may have been improper for the prosecutor to analogize the actions of defendants here to the hunting behavior of animals of prey, we have held "not every intemperate or uncalled for remark by a prosecutor requires a new trial." Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987). Sometimes, prosecutorial misconduct may be harmless error if the prosecutor demonstrates that the error was harmless beyond a reasonable doubt. Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). We have held that where "the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict", then the error is harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978). In the case at bar, the properly admitted evidence of Miles' guilt, including his confession, his co-defendants' statements and eyewitness testimony, is overwhelming. The effect of the prosecutor's analogy in the closing argument is insignificant in comparison. Thus, the error was harmless beyond a reasonable doubt. Accordingly, we should not grant a new trial. Fourth, Miles alleges that the prosecutor improperly asked the jury to find him guilty out of sympathy for the victim's mother. However, the record reveals that the prosecutor stated the exact opposite; "I cannot ask you to feel the 516 grief of a mother who has no son. . . . But I can ask you, and the evidence directs you, your oath demands that you feel during your duty one emotion that Chris' mother feels, that is a desire for justice." N.T. 2-19-92 at 129-30. We find no undue prejudice where the prosecutor properly informed the jury of its duty not to be swayed by sympathy or empathy. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). Finally, Miles asserts that he is entitled to relief based on the cumulative effect of the prosecutor's conduct. We have held that if the prosecutor has engaged in a pattern of misconduct throughout the trial then there is reason to grant a new trial. Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985). Here, Miles accuses the prosecutor of four instances of misconduct during closing arguments. As discussed above, we find the prosecutor's conduct to have been proper in each of those four instances. Furthermore, we have held that "[n]o number of failed claims may collectively attain merit if they could not do so individually." Commonwealth v. Williams, 532 Pa. 265, 278, 615 A.2d 716, 722 (1992). Thus, Miles is not entitled to a new trial. Issue 4: Jury Instructions Miles claims that the trial court committed reversible error when it used his name in instructing the jury on murder in the second degree, thereby indicating to the jury the trial judge's opinion that Miles shot Demby.[10]Commonwealth v. McNeill, 462 Pa. 438, 341 A.2d 463 (1975). A trial court's error in jury instructions constitutes reversible error 517 only when there is an abuse of discretion or an inaccurate statement of law. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995). Jury instructions must be taken as a whole and an error cannot be predicated on an isolated excerpt. Zettlemoyer, supra. Here, the trial court, upon being advised of this error, conceded that it had made an inadvertent mistake and immediately issued a curative instruction.[11] Because the trial court only made this isolated mistake in the jury instructions and immediately issued a curative instruction, the prejudice to the defendant was de minimis and the error was harmless beyond a reasonable doubt. See Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992). Issue 5: Suppression of Miles' Statement Miles next asserts the trial court erred in denying his Motion to Suppress his statement based on the police's failure to readminister his Miranda rights after a break in his interview.[12] The Commonwealth's uncontroverted evidence belies this claim. The record reveals that on April 4, 1990, at 2:35 p.m., Sergeant Descher read Miles his Miranda rights in a room at the Police Administration Building. Miles then gave a statement to Detective Jastrzembski until approximately 4:00 p.m. At 5:30 p.m., Detective Dougherty entered the room, reminded Miles of his Miranda rights and asked Miles if he had read and understood his rights. Miles then gave a second statement. Although Miles argues that police failed to administer Miranda warnings after an extended break in interrogation, the Commonwealth provided uncontradicted evidence that Detective Dougherty advised Miles of his rights at 518 the time Miles made his second statement to police. Thus, the trial court did not err in refusing to suppress Miles' statement. Issue 6: Prior Crimes Evidence Miles asserts that the trial court erred by admitting Darryl Bryant's testimony that Miles committed an armed robbery hours before Demby's murder. The admission of prior bad acts is within the discretion of the trial court and will only be reversed upon a showing of abuse of discretion. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995). Here, the record reveals that Bryant testified that Miles used a .357 Magnum to steal a gold chain from a young boy hours before Demby's murder. The trial court overruled the defense's objection to the admission of this evidence. However, the next day, prior to the taking of testimony, the court reversed itself, sua sponte. At sidebar, the trial court sustained the defense's objection and offered to give an instruction advising the jury to ignore Bryant's testimony referring to the robbery. The defense refused the offer of a curative jury instruction and therefore the court did not caution the jury. Despite the trial court's subsequent decision to sustain the defense's objection, we find no error in the trial court's initial admission of this evidence. Generally, evidence of prior crimes is inadmissible because it is so inflammatory and prejudicial that it deprives a defendant of a fair trial. Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979). However, prior crimes evidence is admissible to prove motive, intent, absence of mistake or accident, common scheme, plan or design or identity. Commonwealth v. Sneeringer, 447 Pa.Super. 241, 668 A.2d 1167 (1995). Prior crimes evidence that forms part of the chain or sequence of events leading to a crime and enhances the natural development of the facts is admissible. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). For example, in Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192 (1993), we upheld the trial court's admission of evidence of two 519 burglaries that occurred approximately a week before the murder being tried. We held the evidence was probative because guns that matched the murder weapons had been stolen in the burglaries. Similarly here, the evidence of Miles' robbery of a young boy using a .357 Magnum hours before Demby's murder was probative of Miles' possession of such a weapon at the time of Demby's murder. Also, a jury instruction would have cured any prejudice caused by the admission of the robbery, but defense counsel refused the judge's offer to give an instruction for strategic reasons. Thus, the trial court did not abuse its discretion in admitting this evidence. IV. REVIEW OF SENTENCE This Court has a duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S. § 9711(h)(3). After reviewing the record, we first conclude that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor. Second, we examine whether the Commonwealth established beyond a reasonable doubt the four aggravating factors found by the jury. First, the Commonwealth presented evidence that a jury convicted Miles of Second Degree Murder and sentenced him to life imprisonment in an unrelated case on October 7, 1991. With this evidence, the Commonwealth established both that Miles had been convicted of another federal or state offense for which the court could impose a sentence of life imprisonment and that he had been 520 convicted of another murder before the time of the offense at issue. 42 Pa.C.S. 9711(d)(10) and (11). The Commonwealth also produced evidence that Miles committed the murder while robbing Demby. Witnesses testified that Miles grabbed the murder victim's sneaker bag, brought the sneakers back to his neighborhood and then sold them to a friend. This evidence supports the jury's finding that Miles killed Demby while in the perpetration of the felony of robbery. 42 Pa.C.S. 9711(d)(6). Further, the Commonwealth presented evidence from an eyewitness and the co-defendants, which established that Miles fired his .357 Magnum in a fight with four other people at a public shopping center. This evidence supports the fourth aggravating circumstance found by the jury, that Miles created a risk of death to another person other than the victim. 42 Pa.C.S. 9711(d)(7). Thus, we find that the Commonwealth's evidence supported all four aggravating circumstances beyond a reasonable doubt. Third, we have reviewed the sentencing data compiled by the Administrative Office of the Pennsylvania Courts concerning similar cases and conclude that the sentence of death imposed upon appellant is not disproportionate. 42 Pa.C.S. 9711(h)(2); Zettlemoyer, supra. Accordingly, we affirm the verdict and the sentence of death imposed upon Kenyatta Miles by the Court of Common Pleas of Philadelphia County.[13] NOTES [1] 18 Pa.C.S.A. § 2502. [2] 18 Pa.C.S. § 903. [3] 18 Pa.C.S. § 3701. [4] 18 Pa.C.S. § 2702. [5] 18 Pa.C.S.A. § 907. [6] The jury also found Kinard guilty of second degree murder, criminal conspiracy, and two counts of robbery. The trial court sentenced Kinard to life imprisonment. The jury convicted Henry of first degree murder, possession of an instrument of crime, criminal conspiracy and two counts of robbery. The jury sentenced him to life imprisonment. [7] The trial court, on March 21, 1995, ordered counsel for Miles to file a Statement of Matters Complained of on Appeal in accordance with Pa.R.A.P. 1925(b). As of May 17, 1995, Miles' counsel had failed to file the required Statement. In response to trial counsel's failure, the trial court issued a Memorandum Opinion suggesting that we dismiss Miles' appeal. Instead, on February 14, 1996, we entered an Order directing Miles to comply with Rule 1925(b) within thirty days. Pursuant to that order, on February 29, 1996, Miles filed a Statement of Matters Complained of on Appeal and on March 29, 1996, the trial court issued its opinion. [8] Although Miles' counsel did not object to the prosecutor's use of "Yattie" in closing arguments, because this is a death penalty case, we will consider the issue under the relaxed waiver rule from Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982). [9] Miles also relies on the Superior Court's decision in Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242 (1992), alloc. denied, 535 Pa. 633, 631 A.2d 1006 (1993), to support his contention that the prosecutor's remarks deprived him of a fair trial. In Scarfo, the two-judge majority granted the defendant a new trial based on prosecutorial misconduct. In responding to defense counsel's statement that the Commonwealth's witnesses were "ravening wolves", the Prosecutor analogized the defendants to wolves hunting in a wolfpack. However, we are not bound by the Superior Court and we find its reasoning unpersuasive in the instant case. [10] The trial judge stated in part: You may find the defendants guilty of second degree murder, this is felony murder, if you are satisfied the following elements have been proven beyond a reasonable doubt. First, that Kenyatta Miles killed or caused the death of Christopher Demby. And second that the defendant did so while he and the defendants were partners in committing a certain robbery. Third, that Kenyatta Miles did the act, that is caused the death or the killing of Christopher Demby in furtherance of the robbery or in a robbery attempt. (emphasis added). Notes of testimony, February 19, 1992, p. 159-160 (emphasis added). [11] The trial judge stated: "Ladies and gentlemen of the jury, . . . in my earlier charge defining second degree murder I inadvertently used Kenyatta Miles' name. That was in error. I will take that out and take that away from your consideration and redefine second degree murder for you once again." Notes of Testimony, February 19, 1992, p. 191-196. [12] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [13] The Prothonotary of the Supreme Court is hereby directed to transmit, within 90 days, the complete record of the case sub judice, including the record of trial, sentencing hearing, imposition of sentence and review by this Court, to the Governor of Pennsylvania. 42 Pa.C.S. § 9711(i).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266229/	5 Cal.Rptr.3d 394 (2003) 112 Cal.App.4th 711 Benjamin KADISH, a Minor, etc., et al., Plaintiffs and Appellants, v. JEWISH COMMUNITY CENTERS OF GREATER LOS ANGELES et al., Defendants and Respondents. No. B159740. Court of Appeal, Second District, Division One. October 10, 2003. As Modified October 28, 2003. Review Granted December 23, 2003. 395 Law Offices of Joseph M. Lovretovich, Woodland Hills, Joseph M. Lovretovich and Sara J. Venteicher for Plaintiffs and Appellants. Gibson, Dunn & Crutcher, Scott A. Edelman and Michael S. Brophy, Los Angeles, for Defendants and Respondents. MALLANO, J. In the summer of 1999, a Jewish organization received vague threats of violence against its members. On August 10, 1999, a self-proclaimed anti-Semite appeared at the organization's summer camp and, armed with a gun, opened fire, wounding at least one child. In this action, the child and his family seek to hold the organization liable for allegedly failing to provide adequate security measures. The trial court dismissed the action on demurrer, concluding that the organization did not have a duty to prevent such a crime. We affirm because the violent criminal assault was not reasonably foreseeable, and imposing liability based on vague threats of violence, absent prior armed assaults or other incidents of a similar nature, would impose an unfair burden on the organization. I BACKGROUND After two successful demurrers, plaintiffs filed a second amended complaint. For purposes of our review, we must accept as true the following allegations. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) In June 1999, Eleanor and Charles Kadish (the Kadishes) enrolled their sons, Benjamin (age 5) and Joshua (age 9), in a summer camp, Camp Valley Chai, run by the Jewish Community Centers of Greater Los Angeles (JCC). The JCC operated several centers in the Los Angeles area. The Kadishes' children were to be dropped off at the West Valley Center and bused to the North Valley Center in Granada Hills, where the camp is located. The Kadishes entrusted the JCC with the custody and safekeeping of their children. Camp Valley Chai, as described in the camp brochure, is "Where the Children Play." The camp offered three programs, each for a different age group. The brochure 396 described the "Aleph" program, for children entering kindergarten and the first grade, as follows: "Activities are evenly paced to provide an all-day program that is exciting but not over-stimulating. With a ratio of one staff to six campers, children will receive close attention and direction. Campers will also participate in camp-wide events. Activities are specifically geared to the interests and abilities of this age group, which include: singing, arts & crafts, Judaica, games, drama, swimming, and more. Campers also participate in specialty days that combine fun and imagination with learning about American and Jewish life." According to the brochure, the "Bet" program, for children entering the second through the fifth grades, included "sports, dancing, arts & crafts, swimming, singing, cooking, field trips, and Judaic programming. With a ratio of one staff to six campers, children engage in program-wide events, as well as camp-wide events. Bet campers have the opportunity to attend a one-night overnight." The "Gimmel" program, for children entering the sixth through the eighth grades, provided "an action-packed summer filled with new experiences, field trips, and more! Each session will include a two-night overnight, swimming, trips to the beach, amusement parks, and other cool places. Special camp events and projects encourage a connection to Jewish culture, themes, and values." The brochure stated that "[a]t Camp Valley Chai, our goal is to find and expose the personal talents within each and every camper. Our staff strives to create an atmosphere of fun, friendship, sharing, group and individual achievement." According to the brochure, campers would enjoy a "safe camping experience" set in a "secure environment" at the camp's "expansive camp site." But, during the summer of 1999, all was not safe and secure for Jewish organizations. Attacks at synagogues and Jewish community centers in the United States were planned and carried out. Jewish organizations across the country referred to the summer of 1999 as the "summer of hate." The Anti-Defamation League sent notices to Jewish groups throughout the nation advising them to increase security. The West Coast office of the Anti-Defamation League notified Jewish organizations that there was a "strong potential" of violence against their members. From June to August 1999, the West Valley Center and the North Valley Center received anonymous telephone calls threatening their members with physical violence. The North Valley Center, located one block from an exit off the 118 Freeway, had a large sign identifying it as a Jewish facility. The center had no locks on the entry door, no security guards, and no emergency evacuation plan, notwithstanding that the JCC had implemented those precautions at other locations. Dating back to at least 1989, the Anti-Defamation League and groups within the JCC had recommended that the North Valley Center adopt security measures. Beginning in early 1999, Buford Furrow, an individual with publicly avowed anti-Semitic views, began traveling and observing Jewish facilities in Southern California with the purpose of shooting and killing Jews. On the evening of August 9, 1999, Furrow sat outside the North Valley Center watching people come and go. No one asked him why he was there. He chose the North Valley Center as the site for his "war on Jews" because it, unlike other JCC facilities, had no security precautions. On August 10, 1999, Furrow entered the North Valley Center and shot Benjamin. His brother, Joshua, was not shot but "perceived" Benjamin's shooting. 397 On April 20, 2001, the Radishes filed this action on behalf of themselves and their children, naming as defendants the JCC, the North Valley Center, and the West Valley Center (collectively JCC). Benjamin asserted a cause of action for negligence, alleging that a lack of security measures allowed Furrow to shoot him. Joshua brought a cause of action for negligence, alleging that he had been in the line of fire and had perceived the assault on his brother. The Kadishes alleged a cause of action for negligence based on the emotional distress they suffered as a result of the injury to their children. They also alleged a cause of action for breach of contract, claiming that the JCC failed to provide a safe and secure camping environment. The JCC demurred to the complaint, contending that it did not have a duty to protect campers from violent criminal assaults. Plaintiffs filed opposition. The trial court sustained the demurrer with leave to amend. A first amended complaint was filed, much like the original. Another demurrer was filed, opposed, and sustained with leave to amend. Plaintiffs filed a second amended complaint, which was also challenged by demurrer. The trial court sustained the demurrer without leave to amend. On May 6, 2002, the trial court entered an order dismissing the case. Plaintiffs filed a timely appeal. II DISCUSSION In reviewing the sufficiency of a complaint against a general demurrer that was sustained, we treat the demurrer as admitting all material facts that are properly pleaded and determine whether the complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc, § 452.) "In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205, 114 Cal.Rptr.2d 470, 36 P.3d 11.) "`To say that someone owes another a duty of care "`is a shorthand statement of a conclusion, rather than an aid to analysis in itself.... "[D]uty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection...'" ...."' (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116.) The trial courts determination [as to whether] a duty exists is reviewed de novo by the appellate court as a question of law." (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339, 78 Cal.Rptr.2d 525.) We begin with the fundamental principle, codified in section 1714 of the Civil Code, that "[e]very one is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property...." (Civ.Code, 1714, subd. (a).) More than three decades ago, in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland), our Supreme Court stated that the determination of whether a property owner is liable for injuries to persons on the property "involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the 398 degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.... [¶] ... "The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others ...." (Rowland, supra, 69 Cal.2d at pp. 112-119, citations omitted; accord, Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 477.) In Mark v. Pacific Gas Electric Co. (1972) 7 Cal.3d 170, 101 Cal.Rptr. 908, 496 P.2d 1276, the light from a street lamp post was so bright it disturbed the sleep of nearby residents, and they complained to the utility company, PGE. Notwithstanding efforts by PGE to reduce the glare, the light continued to cause problems. Eventually, the residents resorted to self-help and unscrewed the light bulb. PGE sent an employee who screwed the bulb back in place. Each time this was done, the residents unscrewed the bulb. Thus, PGE knew that someone was tampering with the light. On one occasion, a resident attempted to remove the bulb, touched an uninsulated wire, and was electrocuted. In a suit for wrongful death, the trial court granted a nonsuit for PGE. The Supreme Court reversed, applying the Rowland factors. (See Mark v. Pacific Gas Electric Co., supra, 7 Cal.3d at pp. 177-178 fns. 1, 2-5.) The court stated that "harm to decedent was certainly foreseeable, given PG & E's knowledge of tampering with high voltage wiring, and a clear causal relationship existed between the accident and PG & E's asserted negligence in failing to warn of or repair the hazard. Although PG & E may have been `morally' without blame, imposition of liability would enhance the policy of preventing future accidents. Finally, imposition of liability does not seem unduly burdensome to PG & E considering the probable availability of insurance covering accidents of this nature which are not likely to recur with great frequency." (Id. at p. 178, fn. 5, 101 Cal.Rptr. 908, 496 P.2d 1276.) The Rowland factors were later applied in Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193. There, a student was assaulted as she went up a stairway in the school's parking lot. An unidentified man jumped from behind thick and untrimmed foliage and trees and attempted to rape her. She escaped but sustained physical and emotional injuries. The school district knew that other assaults of a similar nature had occurred in the area but did not publicize the prior incidents or warn the student that she was in danger of being attacked. The student sued the school district and its agents. The trial court dismissed the action on demurrer. The Supreme Court reversed, stating: "An examination of the policies discussed in Rowland, supra, 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561], and other cases compels the conclusion that the defendants did in fact owe the plaintiff a duty of care. First, the allegations, if proved, suggest that harm to the plaintiff was clearly foreseeable. In light of the alleged prior similar incidents in the same area, the defendants were on notice that any woman who might use the stairs or the parking lot would be a potential target. Secondly, it is 399 undisputed that plaintiff suffered injury. Third, given that the defendants were in control of the premises and that they were aware of the prior assaults, it is clear that failure to apprise students of those incidents, to trim the foliage, or to take other protective measures closely connects the defendants conduct with plaintiffs injury. These factors, if established, also indicate that there is moral blame attached to the defendants failure to take steps to avert the foreseeable harm. Imposing a duty under these circumstances also furthers the policy of preventing future harm. Finally, the duty here does not place an intolerable burden on the defendants." (Peterson v. San Francisco Community College Dist, supra, 36 Cal.3d at p. 814, 205 Cal.Rptr. 842, 685 P.2d 1193.) In Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 238 Cal.Rptr. 436 (McDonald's), a restaurant had been the site of several crimes, including robbery, petty theft, vandalism, and grand theft. Crime statistics showed that numerous assaults and batteries had been committed in the surrounding area. The crime problem was so serious that a private security company contacted McDonald's corporate office, recommending that security guards be hired. A McDonald's official declined, saying, "`We don't want to spend any money. There is no problem, we don't need it anyways.'" (Id. at p. 502, 238 Cal.Rptr. 436.) A nearby Jack in the Box employed security guards. Two months after McDonald's decided not to hire security guards, an individual armed with a semiautomatic rifle, a semiautomatic pistol, and a 12-gauge shotgun entered the restaurant and immediately opened fire, killing 21 people and wounding 11 others. In a suit brought by survivors and surviving family members of the victims, the trial court granted summary judgment in favor of McDonald's. The Court of Appeal affirmed on the ground that "the Rowland factors and specifically the unforeseeability of the unique, horrific ... event require negligence liability to be restricted here. First, as to the foreseeability of harm to plaintiffs, the theft-related and property crimes of the type shown by the history of its operations, or the general assaultive-type activity which had occurred in the vicinity bear no relationship to purposeful homicide or assassination.... [T]he likelihood of this unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of McDonald's nonfeasance did not facilitate its happening.... "Plaintiffs' reliance on the evidence of mostly theft-related crimes on and nearby the ... [restaurant's] premises and the crime rate in the surrounding area, to show the event here was reasonably foreseeable, is misplaced.... [T]he predominantly theft-related character of the crimes is simply probative of the foreseeability of such crimes.... [N]ot only was [the assailant's] crime not theft-related, but the narrow focus on slaughter and [the assailant's] ... motive are unrelated to the areas general crime rate as a matter of law. [¶] ... "[W]ithin the context of the third-party criminal conduct involved here, no moral blame attaches to [McDonald's] nonfeasance. Further, although the policy of preventing future harm is great, the extent of the burden to [McDonald's] and the consequences to the community of imposing a duty to protect against heavily-armed ... murderers is onerous." (McDonald's, supra, 193 Cal.App.3d at pp. 509-512, fns. omitted; see Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273, 263 Cal.Rptr. 202 ["imposing a duty to protect against driveby shootings would place an onerous burden on business owners"; no duty imposed]; 400 Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-478 fn. 20, 63 Cal.Rptr.2d 291, 936 P.2d 70 [no duty of care imposed where duty would place onerous burden on defendant and others].) In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal. Rptr.2d 137, 863 P.2d 207 (Ann M.), the plaintiff was raped in a shopping center where she worked. She filed suit against the property owners, alleging that security guards should have been hired to patrol the premises. Evidence showed that transients often loitered in the common areas, causing tenants and employees to be concerned about safety. The merchants association had requested that the property owners provide security patrols but none were provided. Bank robberies and purse snatchings had occurred on the premises, but the property owners did not know about them. In the two years before the rape, violent crimes had occurred in the census tract in which the shopping center was located. The property owners moved for summary judgment, contending they owed no duty to the plaintiff, primarily because the rape was unforeseeable. The trial court granted the motion. The Supreme Court, citing the Rowland factors (see Ann M., supra, 6 Cal.4th at pp. 675-679 fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207), agreed, explaining: "... California law requires landowners to maintain land in their possession and control in a reasonably safe condition.... In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.... ¶ ... "[A]s frequently recognized, a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.... [¶] In this, as in other areas of tort law, foreseeability is a crucial factor in determining the existence of duty.... [¶] ... "Turning to the question of the scope of a landlords duty to provide protection from foreseeable third party crime, ... we have recognized that the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.... "`[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required.... On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required." ...' ... Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of `foreseeability' of the criminal acts against the `burdensomeness, vagueness, and efficacy' of the proposed security measures .... "`... No one really knows why people commit crime, hence no one really knows what is "adequate" deterrence in any given situation....' [A] high degree of foreseeability is required in order to find that the scope of a landlord's duty of care includes the hiring of security guards.... [T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowners premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well-established policy in this state." (Ann M., supra, 6 Cal.4th at 401 pp. 674-679, 25 Cal.Rptr.2d 137, 863 P.2d 207 citations and fn. omitted.) The principles announced in Ann M. were applied in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 91 Cal.Rptr.2d 35, 989 P.2d 121 (Sharon P.), disapproved on another point in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, footnote 19. In Sharon P., the plaintiff was sexually assaulted at gunpoint in a commercial parking garage located under an office building. No physical assaults or gun-related crimes had occurred in the garage during the 10 years preceding the assault, although a bank on the ground floor had been robbed seven times in the two years before the assault. It was not unusual for lights in the garage to be out, causing areas to be dark. A security camera had not been working for several months. The plaintiff sued the property owner and the company that managed the garage, alleging that the lack of security measures resulted in the assault. The trial court granted summary judgment in favor of the defendants. The Supreme Court concluded that there was no liability, stating: "[T]he record remains deficient in establishing the foreseeability of violent attacks such as the one against plaintiff. Viewing the record in the light most favorable to plaintiff, it shows that robbers repeatedly targeted a bank on the ground floor of the subject premises in the 27 month period preceding the sexual assault. Apart from those incidents, there is no evidence of other prior crimes against property or persons on the premises, either in the office building or in the underground parking garage. Since sexual assault is not a reasonably foreseeable risk associated with bank robberies ..., the bank robberies did not portend the vicious assault committed upon plaintiff. [¶] ... "It is difficult to quarrel with the abstract proposition that the provision of improved lighting and maintenance, operational surveillance cameras and periodic walk-throughs of the tenant garage ... might have diminished the risk of criminal attacks occurring in the garage. But absent any prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location, we cannot conclude defendants were required to secure the area against such crime." (Sharon P., supra, 21 Cal.4th at pp. 1197-1199, 91 Cal.Rptr.2d 35, 989 P.2d 121 citation omitted.) Rowland and its progeny have been cited or applied in several other cases. (See, e.g., Zelig v. County of Los Angeles, supra, 27 Cal.4th 1112, 119 Cal.Rptr.2d 709, 45 P.3d 1171 [county not liable where, in connection with spousal and child support proceedings, father shot mother to death in county courthouse]; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 107 Cal. Rptr.2d 617, 23 P.3d 1143 [landlord not liable for assault on plaintiff, who was delivering package to tenant, absent proof that lack of security was substantial factor in causing plaintiffs injuries]; Kentucky Fried Chicken of Cal, Inc. v. Superior Court (1997) 14 Cal.4th 814, 59 Cal.Rptr.2d 756, 927 P.2d 1260 [proprietor of business has no duty to comply with armed robbers demand for money even if compliance would avoid increasing risk of harm to customers]; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 60 Cal.Rptr .2d 448, 929 P.2d 1239 [owner of private residential property may be liable to tenant for dangerous condition on adjacent public property controlled by owner]; Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 339, 133 Cal.Rptr.2d 425 [nonsuit reversed where plaintiff was attacked at gas station by gang members who had previously assaulted other customers and robbed gas 402 station manager; foreseeability turns on prior similar incidents, not identical incidents]; Eric J. v. Betty M. (1999) 76 Cal. App.4th 715, 720-722, 90 Cal.Rptr.2d 549 [citing cases].) In determining whether the JCC had a duty to protect plaintiffs from harm, we "balance two important and competing policy concerns: society's interest in compensating persons injured by another's [criminal] acts, and its reluctance to impose unrealistic financial burdens on property owners conducting legitimate business enterprises on their premises." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 766, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) With the foregoing case law and policy concerns in mind, we now apply the Rowland factors.[1] A. Foreseeability "In examining the critical element of foreseeability of harm, we must adhere to the rule that `[f]oreseeability supports a duty only to the extent the foreseeability is reasonable....' In other words, `a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated ...' .... Basically, `[t]he reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it.'" (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402, 97 Cal.Rptr.2d 12 (Juarez), citations omitted.) "`[A]lmost any result [is] foreseeable with the benefit of hindsight.'... For that reason, foreseeability is not coterminous with duty.... "`A court may find that no duty exists, despite foreseeability of harm, because of other [Rowland] factors ...."'" (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 407, citations omitted.) In the present case, there were no prior incidents at the North Valley Center that would make Furrows shooting spree foreseeable. (See Sharon P., supra, 21 Cal.4th at pp. 1191-1199; Ann M., supra, 6 Cal.4th at pp. 674-679, 25 Cal.Rptr.2d 137, 863 P.2d 207; McDonald's, supra, 193 Cal.App.3d at pp. 509-510, 238 Cal.Rptr. 436.) That would end our inquiry, but for the threats of harm to JCC members. Threats of criminal acts may make the acts foreseeable to the property owner, who may be able to take security measures to prevent the threatened harm, depending upon the contents of the threat, including its specificity. Thus, we must determine whether the shooting at the North Valley Center was foreseeable in light of the threats to JCC members. For that purpose, we examine the pertinent allegations of the complaint. More than 10 years before the incident at the North Valley Center, Jewish organizations, including individuals within the JCC and the Anti Defamation League, were aware of the threat of violence against members of Jewish organizations and had recommended that the North Valley Center adopt security measures. Nationwide, Jewish organizations referred 403 to the summer of 1999 as the "summer of hate." In the two and one-half months before Furrows attack, the North Valley Center received anonymous telephone calls, threatening physical violence against its members. We conclude that these vague threats were not sufficiently specific so as to require that security measures be adopted to prevent a maniac from shooting children at a summer camp. Plaintiffs did not allege any specifics about the threatswho, what, when, where, or how. Anonymous threats of such a vague nature do not provide an organization with guidance about what, when, and where precautions, if any, should be taken, nor against whom. And "[a]bsolute safety is not an achievable goal." (Nola M. v. University of Southern, California (1993) 16 Cal.App.4th 421, 436, 20 Cal.Rptr.2d 97.) Further, the threats made in this case to injure JCC membersdid not convey the kind or degree of the crime actually committeda gunman's attempted murder of children attending Camp Valley Chai. Some threats dated back two and one-half months, and because they were of a general nature and had not been carried out, they could be reasonably deemed to be "crank" calls, empty threats, or threats not directed at the children. There is no contention that, before the attack, Furrow threatened to harm JCC members or children attending camp. It is not alleged that he made any of the anonymous telephone threats received within two and one-half months of the attack. Furrows armed assault took the North Valley Center completely by surprise. A general concern about security, absent a sufficiently specific threat, does not require an organization to prepare for the worst imaginable scenario. "[R]andom, violent crime is endemic in today's society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable." (Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.) We live in "a society which appears unable to effectively stem the tide of violent crime." (Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 439, 20 Cal.Rptr.2d 97.) But that does not mean security guards must be hired to patrol a summer camp (see Ann M., supra, 6 Cal.4th at pp. 679-680, 25 Cal.Rptr.2d 137, 863 P.2d 207) or that lesser security precautions must be adopted (see Sharon P., supra, 21 Cal.4th at pp. 1195-1199, 91 Cal.Rptr.2d 35, 989 P.2d 121). And "[t]he type of premises can affect the outcome of a case because the type of duty may vary and each premises has its own physical characteristics that influence the underlying fact situation. The physical layout and nature of a premise have an effect on what a reasonable person should do to protect persons against the criminal acts of third parties. Since each premises has its own unique characteristics, different types of premises will be examined individually." (Bryant, Premises Liability for Criminal Acts of Third Parties: A Negligence Standard (1998) 26 Real Est. L.J. 229, 235.) Camp Valley Chai occupies an expansive area. The camps openness and easy access are characteristic of camps throughout the country. Many children, especially those living in an urban environment, attend camp precisely because it offers an opportunity to be in the great outdoors. The characteristics of a campchildren engaging in activities such as swimming, sports, field trips, and overnight camping are not conducive to the use of security guards or similar measures. 404 The circumstances in the present case are not unlike those in McDonald's, supra, 193 Cal.App.3d 495, 238 Cal.Rptr. 436, where a gunman entered a building open to the public and began shooting. As the court there stated, "the unforeseeability of the unique, horrific ... [crime] require[s] negligence liability to be restricted here." (Id. at p. 509, 238 Cal.Rptr. 436.) "Property owners have no duty to prevent unexpected ... crimes." (Nicole M. v. Sears, Roebuck Co. (1999) 76 Cal.App.4th 1238, 1247, 90 Cal.Rptr.2d 922; accord, Thai v. Stang, supra, 214 Cal.App.3d at p. 1273, 263 Cal.Rptr. 202.) It has been stated that "a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.... Consequently, California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties." (Juarez, supra, 81 Cal.App.4th at p. 410, 97 Cal.Rptr.2d 12, italics added; accord, Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 893-895, 20 Cal. Rptr.2d 418.) But even where liability is based on a special relationship, the potential harm must still be reasonably foreseeable, if not actually known. (See Juarez, supra, 81 Cal.App.4th at p. 411, 97 Cal. Rptr.2d 12; Romero v. Superior Court, supra, 89 Cal.App.4th at pp. 1080-1083, 107 Cal.Rptr.2d 801; Doe 1 v. City of Murrieta, supra, 102 Cal.App.4th at pp. 917-918, 126 Cal.Rptr.2d 213.) Here, the potential harm was not foreseeable or known. Our nations history contains accounts of hate crimes akin to the one perpetrated at the North Valley Center. In general, such crimes are foreseeable in that they will probably occur as they have in the past. Yet simply because they are foreseeable in this sense should not result in liability for the property owner when they occur. There must be more. B. Degree of Certainty that Plaintiff Suffered Injury There is no dispute that Benjamin was injured by Furrow. The claims of Benjamin's parents and brother are derivative: If the JCC is not liable for Benjamin's injury, the other causes of action also fail.[2] C. Closeness of Causal Connection Benjamin was wounded because of an alleged lack of security precautions. But the connection between his injury and the lack of security is tenuous. Depending upon Benjamin's location and activity at the time of the shootingwhich were not allegedsecurity measures may not have been of any help. Camp Valley Chai is an expansive campsite where numerous activities are conducted. There is one staff member for every six campers, which, by reasonable standards, appears to be an adequate number of supervisors. Yet, "[i]n some situations, ... reasonable security measures would never have prevented a criminal attack. These circumstances often involve extremely disturbed or determined assailants." (Yokoyama, Danger Zones (Jan.2002) 24 L.A. Law. 45, 49.) D. Moral Blame The JCC bears no moral blame. As in McDonald's, supra, 193 Cal.App.3d 495, 405 238 Cal.Rptr. 436, society deplores the act of a deranged gunman and does not blame the property owner. It is unfortunate that bigotry such as Furrows is no stranger to our society. "Over the past decade, Federal and State legislation has mandated the identification and reporting of offenses known as hate crimes. Today nearly every State and the Federal Government have laws which require sentencing enhancements for offenders who commit hate crimes. These incidents, also referred to as bias crimes, are criminal offenses motivated by an offender's bias against a race, religion, disability, sexual orientation, or ethnicity.... Bias crimes are not separate types of offenses but are crimes against persons, property, or society identified by a specific motivation of the offender." (United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report, Hate Crimes Reported in National Incident-Based Reporting System, 1997-1999, http://www. ojp.usdoj.gov/bjs/pub/pdf/ hcrn99.pdf [as of Oct. 10, 2003].) "From 1997-1999, sixty-one percent of hate crime incidents were motivated by race, 14 percent by religion, 13 percent by sexual orientation, 11 percent by ethnicity, and 1 percent by victim disability. The majority of incidents motivated by race, ethnicity, sexual orientation, or disability involved a violent offense, while two-thirds of incidents motivated by religion involved a property offense, most commonly vandalism." (National Criminal Justice Reference Service, Hate Crime Resources Facts and Figures http:// www.ncjrs.org/hate_crimes/facts.html [as of Oct. 10, 2003].) In 2001, of the 9,721 hate crimes motivated by only one type of bias, 44.9 percent were motivated by race, 21.6 percent by ethnicity or national origin, 18.8 percent by religion, 14.3 percent by sexual orientation, and 0.4 percent by disability. (National Criminal Justice Reference Service, Hate Crime ResourcesFacts and Figures http://www.ncjrs.org/hate_crimes/ facts.html [as of Oct. 10, 2003].) An organization composed of individuals who belong to a "protected" group under hate crime statutes or a business that caters to such a group should not be unfairly burdened to protect those individuals from the criminal acts of third persons. That conclusion was acknowledged in Gray v. Kircher (1987) 193 Cal.App.3d 1069, 236 Cal.Rptr. 891. There, the plaintiff, a gay man, rented a room at a hotel advertising that it was "`under gay management.'" (Id. at p. 1072, 236 Cal.Rptr. 891.) The hotel had permanent and transient residents. One resident, Jerome Meacham, had exhibited an "anti-gay attitude" in his dealings with other residents. (Ibid.) During a confrontation, Meacham shot the plaintiff with a handgun. In a subsequent suit against the hotel owner, the plaintiff sought to base liability, in part, on Meacham's bias against gays. Relying on the Rowland factors (see id. at p. 1073, 236 Cal.Rptr. 891), the court rejected that argument, stating: "The trial court noted the absence of evidence of any history of violence or assaultive behavior on the part of Meacham, a lack of evidence that [the hotel owner] or anyone else was aware that Meacham possessed a gun, the absence of evidence that [the owner] knew or should have known of any risk to other hotel guests occasioned by Meacham's presence, and a lack of evidence that [the owner] failed to exercise reasonable care to protect [the plaintiff] or other residents.... In short, Meacham's conduct was not reasonably foreseeable. 406 "Applying the Rowland factors further, we note that [the owners] conduct was without moral blame, and the imposition of a duty to protect against this sort of criminal conduct would place `an extremely onerous burden' on both [the owner] and the community.... "[Plaintiffs] suggestion that [the owner] should have expelled or at least moved Meacham to another part of the hotel because of his alleged `anti-gay' philosophy is untenable. Hotel owners cannot classify and isolate their guests according to their perceived social or political philosophies." (Gray v. Kircher, supra, 193 Cal.App.3d at pp. 1074-1075, 236 Cal.Rptr. 891, citations omitted.) E. Preventing Future Harm Imposing a duty in this case would not prevent future harm. The circumstances of Benjamin's injury were unique, shocking and, as stated, unforeseeable. It remains a part of everyday life that people enter and exit unlocked, unguarded facilities operated by various organizations. Children continue to go to camp. Despite the efforts of an organization to protect individuals on its premises, a crazed bigot who has declared "war" on a particular group in society may find a way to breach security measures. F. Burden on the JCC and the Community Benjamin was attending summer camp, which is an enriching experience for many children. The operation of a camp is rarely a lucrative endeavor and is often done on a non-profit basis. As stated in a slightly different context, "`... It serves no one to impose a duty which, rather than protecting [others], forces the businesses which they frequent to close.'" (Sharon P., supra, 21 Cal.4th at p. 1194, 91 Cal. Rptr.2d 35, 989 P.2d 121.) "Police protection is, and in our view should remain, a governmental and not a private obligation." (Nola M. v. University of Southern California, supra, 16 Cal.App.4th at p. 437, 20 Cal.Rptr.2d 97.) "[I]mposing a duty to protect against ... shootings would place an onerous burden on [summer camps]." (Thai v. Stang, supra, 214 Cal.App.3d at p. 1273, 263 Cal.Rptr. 202.) In sum, under the Rowland factors, the JCC did not have a duty to prevent Furrow's attack regardless of whatever security measures were in place. A vicious attack by an anti-Semitic gunman was not reasonably foreseeable under Rowland. The shooting was an unexpected crime. Moral blame lies with Furrow, not the JCC. And if the JCC were subject to liability, similar attacks would remain a possibility, and the financial burden might be onerous, jeopardizing the JCC's positive contribution to the development of children who attend summer camp. Because Benjamin's cause of action for negligence is without merit, so are the others, which are premised on the JCC's alleged breach of a duty to Benjamin. Our conclusion is supported by the Restatement Second of Torts, which provides: "Since the possessor [of land] is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally *407 or at some particular time, he may be under a duty to take precautions against it, and to provide ... reasonably sufficient [personnel] to afford ... reasonable protection." (Rest.2d Torts, § 344, com. f, pp. 225-256.) Prosser is in agreement. (See Prosser & Keeton, Torts (5th ed.1984) § 61, p. 428.) The JCC did not know or have reason to know that someone was planning to shoot and kill children attending Camp Valley Chai. Nothing in the JCC's past experience or the place or character of the community center or the camp provided even a hint of what was to come. In closing, we note that events subsequent to the shooting at the North Valley Center have instilled public fear of criminal acts never before imagined. The Twin Towers in New York City were destroyed in a matter of minutes with great loss of life. The United States Department of Homeland Security issues warnings of possible future terrorist activities. And snipers pick off people who are going about their daily routines. In this day and age, new threats are often imagined, but the question before us depends upon an application of the Rowland factors to actual threats made prior to Furrow's rampage at the North Valley Center on August 10, 1999. Accordingly, as stated, the JCC did not have a duty to protect plaintiffs from harm. III DISPOSITION The order of dismissal is affirmed. We concur: SPENCER, P.J., and ORTEGA, J. NOTES [1] The last of the Rowland factorsthe availability, cost, and prevalence of insurance for the risk involvedis often not applied, most likely because there is no evidence before the court on the issue, as is the case here, and courts hesitate to engage in guesswork. (See, e.g., Ann M., supra, 6 Cal.4th at pp. 674-680 fn. 5, 25 Cal.Rptr.2d 137, 863 P.2d 207; Romero v. Superior Court (2001) 89 Cal. App.4th 1068, 1090-1095, 107 Cal.Rptr.2d 801; Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 913-916, 126 Cal.Rptr.2d 213.) [2] The Kadishes' cause of action for breach of contract alleges that the JCC promised, but failed to provide, a "safe" and "secure" environment. We understand "safe" and "secure" to mean that the JCC would operate Camp Valley Chai in a reasonably safe and secure manner, not that the JCC could prevent the armed assault by the would-be murderer here.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266231/	461 F.Supp. 1179 (1978) UNITED STATES of America, Plaintiff-Appellee, v. BRISTOL HILLS APARTMENTS, a Michigan Co-partnership, Defendant-Appellant. Civ. A. No. 8-71118. United States District Court, E. D. Michigan, S. D. December 14, 1978. Samuel J. Behringer, Jr., Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee. Alan P. Goldstein, Goldstein, Goldstein & Bershad, Detroit, Mich., for defendant-appellant. MEMORANDUM OPINION AND ORDER JOINER, District Judge. This is an appeal from the dismissal of a Chapter 12 bankruptcy proceeding in which the court is called on to interpret an ambiguity in section 517 of the Bankruptcy Act. 11 U.S.C. § 917. The United States prevailed below in its motion contending that the bankruptcy court did not have the power 1180 to carry out the procedures of Chapter 12 in this case because of the interest of the Department of Housing and Urban Development in the property which is the principal asset of Bristol Hills Apartments. The facts are not complicated. Bristol Hills Apartments is a Michigan co-partnership which built a complex of 168 apartments. To finance this project, Bristol Hills granted a mortgage to Citizens Mortgage Corporation, which mortgage was insured by the United States of America through the Secretary of Housing and Urban Development. 12 U.S.C. § 1715l. Bristol Hills defaulted on the mortgage payments, and the mortgage was eventually assigned to the Secretary in exchange for the money that had not been paid by Bristol Hills. When the Secretary published its intent to foreclose on the property for the purpose of selling it, Bristol Hills petitioned the bankruptcy court for an opportunity to proceed under Chapter 12 and thereby postpone or avoid altogether the proposed foreclosure by the Secretary. The statute in question reads as follows: Nothing contained in this chapter shall be deemed to affect or apply to the creditors of any debtor under a mortgage insured pursuant to the National Housing Act and Acts amendatory thereof and supplementary thereto; nor shall its provisions be deemed to allow extension or impairment of any secured obligation held by Home Owners' Loan Corporation or by any Federal Home Loan Bank or member thereof. 11 U.S.C. § 917. The law is clear that if Citizens Mortgage Corporation had, instead of assigning its rights under the mortgage to the Secretary, attempted to foreclose on Bristol Hills itself, section 517 would have prevented any Chapter 12 proceedings. Had this been the case, there would be no question but that "creditors . . . under a mortgage insured pursuant to the National Housing Act" (11 U.S.C. § 917) would be affected by any such proceedings. The question presented to this court is whether, after the transfer of the mortgage interest from the private investor to the governmental insurer, there still existed a "mortgage pursuant to the National Housing Act." Bristol Hills maintains that once the Secretary, as insurer, paid the defaulted amount to the private mortgagee, there no longer existed an insured mortgage. The argument is that once the insured party has been paid off, there is nothing left to insure and thus, the section, which is limited to those mortgages which are insured, does not apply. Bristol Hills maintains that this is a reasonable interpretation of the section and that it comports with the legislative intent. It is clear that Congress intended to create an inducement for investors to use their money to finance projects that would aid the development of housing for the American people. It was believed that if investors knew that a mortgagor could not avoid foreclosure through Chapter 12, the investors would be more likely to become involved with these projects. Bristol Hills argues that once the private investor is out of the picture, there is no longer any need to assure the inapplicability of Chapter 12. Any private investor who would be induced by the combination of the governmental insurance and section 517 would not be worried by the possibility of Chapter 12 being resorted to in the time period after they had recovered their investment. The government contends that if the section were to be read as Bristol Hills reads it, the pool of money which allows the government to insure these mortgages will be eaten away a piece at a time, and that unless the applicability of Chapter 12 is avoided, a continual stream of money will be needed in order to keep the mortgage insurance program going. While this court feels that the government's argument may exaggerate the effects of Chapter 12, there is no doubt but that under Bristol Hills' theory, the government would not be as free to act to protect its interests in defaulted mortgages. In sum, the government argues that the exemption from Chapter 12 for mortgages such as the one 1181 at bar is the only way to enforce the purpose of the National Housing Act. The key words in the statute are "pursuant to" in the sentence "Nothing . . . shall . . . affect . . . creditors . . . insured pursuant to the National Housing Act . . . ." The section is not limited by its terms to the time period "while such insurance on the mortgage remains outstanding" as is the case with 12 U.S.C. § 1731b(a). The lack of this language in 11 U.S.C. § 917, in addition to the use of the broad phrase "pursuant to", leads to the conclusion that the section applies to all mortgages which came into being under the insurance provisions of the National Housing Act whether those mortgages have remained in the hands of the private investors or have been assigned to the governmental insurer. Not only is this the most reasonable way to read the section concerned, but it is also a good rule. If the law were otherwise, a private mortgagee would have the power, by either assigning or refusing to assign its rights under the mortgage to the government, to determine whether the benefits of Chapter 12 will be available to the mortgagor. What would undoubtedly happen if this were the law is that the government would make sure not to accept assignments until foreclosure proceedings had already been effectuated. This would force some investors to hesitate to finance needed projects for fear of being a party to foreclosure proceedings because the government would not let them out by accepting an assignment. For the reasons stated, the court finds that there is in this case "a mortgage insured pursuant to the National Housing Act" and that the decision of the bankruptcy court dismissing the Chapter 12 for lack of subject matter jurisdiction must be affirmed. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266237/	545 Pa. 564 (1996) 681 A.2d 1328 COMMONWEALTH of Pennsylvania, Respondent, v. John E. duPONT, on behalf of himself and all those similarly situated in the Commonwealth of Pennsylvania, Petitioner. Supreme Court of Pennsylvania. Submitted June 20, 1996. Decided August 19, 1996. 565 Richard A. Sprague, Philadelphia, William H. Lamb, West Chester, Taras M. Wochok, Paoli, for John E. duPont. Dennis C. McAndrews, Media, Joseph E. McGettigan, Harrisburg, for the Commonwealth. Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ. OPINION NIGRO, Justice. For purposes of this appeal, the relevant facts are as follows. Petitioner John E. duPont is charged with first-degree murder. Petitioner has been incarcerated without bail in the Delaware County Prison since January 28, 1996. On March 18, 1996, the Court of Common Pleas of Delaware County sua sponte ordered a competency examination of Petitioner pursuant to sections 7402(d) and (e) of the Pennsylvania Mental Health Procedures Act ("the Act"), 50 P.S. §§ 7101-7503 (1976), after finding that there was a prima facie question as to Petitioner's incompetency. The trial court 566 designated two psychiatrists to conduct Petitioner's competency examination. On May 6 and May 7, 1996, Petitioner filed an emergency application for relief with this Court on behalf of himself and all those similarly situated defendants in the Commonwealth, requesting a stay of his competency examination and challenging the constitutionality of section 7403(a) of the Act following the recent decision by the United States Supreme Court in Cooper v. Oklahoma, ___ U.S. ___, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). On May 13, 1996, Petitioner's competency examination was stayed pending further Order of this Court. On May 16, 1996, this Court assumed extraordinary jurisdiction pursuant to 42 Pa.C.S. § 726 over the question of what burden of proof applies in a competency hearing in a criminal case under section 7403(a) of the Act following Cooper. Section 7403(a) was recently amended by the legislature and signed into law by the Governor on July 2, 1996. Section 7403(a) now reads as follows: (a) Competency Determination and Burden of Proof. Except for an incompetency examination ordered by the court on its own motion as provided for in section 7402(d), the individual making an application to the court for an order directing an incompetency examination shall have the burden of establishing incompetency to proceed by a preponderance of the evidence. The determination shall be made by the court.[1] 50 P.S. § 7403(a). In Cooper, the United States Supreme Court struck down an Oklahoma statute which required a criminal defendant to prove his incompetency by clear and convincing evidence. The Cooper Court found that such a heavy burden violated the 567 defendant's due process rights under the Fourteenth Amendment of the United States Constitution. The Cooper Court reasoned that if a defendant is required to prove his incompetence by clear and convincing evidence, the State would unfairly be permitted "to put on trial a defendant who is more likely than not incompetent." Cooper, ___ U.S. at ___, 116 S.Ct. at 1379. In view of this dangerous possibility, the Cooper Court invalidated the Oklahoma statute emphasizing that "a defendant's fundamental right to be tried only while competent outweighs the State's interest in the efficient operation of its criminal justice system." Id. Prior to the recent amendment, Section 7403(a) of the Act imposed the identical burden on a criminal defendant as the Oklahoma statute which was declared unconstitutional in Cooper. See Cooper, ___ U.S. at ___ n. 16, 116 S.Ct. at 1380 n. 16 (comparing Pennsylvania and Oklahoma competency statutes). As the United States Supreme Court explained in Cooper, the burden imposed under section 7403(a) made Pennsylvania one of only four states which "require the criminal defendant to prove his incompetency by clear and convincing evidence." Id. at ___, 116 S.Ct. at 1380. Thus, as acknowledged by both parties to this appeal, Cooper clearly rendered section 7403(a) prior to the legislature's recent action unconstitutional. Now, however, the legislature has amended section 7403(a) to require that a defendant at a competency hearing need only demonstrate his incompetency to stand trial by a preponderance of the evidence. As explained below, it is well-settled that the Commonwealth may require a criminal defendant to demonstrate his incompetence to stand trial by a preponderance of the evidence. In Cooper, the United States Supreme Court announced that its decision did not affect its earlier ruling in Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), which established that "a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the 568 evidence." Cooper, ___ U.S. at ___, 116 S.Ct. at 1376 (explaining Medina). Thus, Cooper and Medina make clear that requiring a criminal defendant to prove his incompetence to stand trial by a preponderance of the evidence does not violate that defendant's constitutional rights under the Due Process Clause of the Fourteenth Amendment. See id. Likewise, this Court has held in a long line of cases that a criminal defendant has the burden of proving his incompetency to stand trial by a preponderance of the evidence. See, e.g., Commonwealth v. Logan, 519 Pa. 607, 623 n. 5, 549 A.2d 531, 539 n. 5 (1988); Commonwealth v. Banks, 513 Pa. 318, 340 n. 11, 521 A.2d 1, 12 n. 11 (1987); Commonwealth v. Robinson, 494 Pa. 372, 376, 431 A.2d 901, 903 (1981); Commonwealth v. Davis, 459 Pa. 575, 578, 330 A.2d 847-48 (1975); Commonwealth v. Kennedy, 451 Pa. 483, 487, 305 A.2d 890, 892 (1973); Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952); Commonwealth v. Simanowicz, 242 Pa. 402, 89 A. 562 (1913); Commonwealth v. Molten, 230 Pa. 399, 402, 79 A. 638, 639 (1911). These cases employing a preponderance of the evidence standard do not offend due process under Article I, § 9 of the Pennsylvania Constitution.[2] Indeed, in Cooper, the United States Supreme Court cited with approval the "preponderance of the evidence" standard adopted by the majority of the states as firmly rooted in our nation's common law jurisprudence. See Cooper, ___ U.S. at ___ n. 14, n. 17, 116 S.Ct. at 1378 n. 14, n. 17. Additionally, Petitioner argues that, once the trial court has expressed a doubt as to a criminal defendant's competence by ordering a competency examination sua sponte, it is inappropriate to retain the presumption that a defendant is competent to stand trial. We cannot agree with Petitioner's argument on this point. As section 7403(a) now makes clear, a criminal defendant is presumed competent to stand trial and must prove 569 his incompetency by a preponderance of the evidence. See, e.g., Logan; Banks; Robinson; Davis; Kennedy; Carluccetti; Simanowicz; Molten. Petitioner offers this Court no authority that compels us to carve out an exception to the preponderance of the evidence burden, nor do we see any reason to do so. Regardless of whether the trial court or Petitioner raises the question of Petitioner's incompetency by requesting a competency examination, Petitioner shoulders the burden at a subsequent competency hearing of demonstrating his incompetency to stand trial by a preponderance of the evidence. See id.[3] Moreover, in Medina, the United States Supreme Court flatly rejected Petitioner's argument. In Medina, the defendant asserted that once the trial court expressed a doubt as to the defendant's competence by ordering a competency hearing to be held, it was "irrational to retain the presumption that a defendant is competent." Medina, 505 U.S. at 452, 112 S.Ct. at 2581. Finding that, "in essence, the challenged presumption is a restatement of the burden of proof," the high Court in 570 Medina rejected this argument based on its prior determination that the State was permitted to require the defendant to prove his incompetency by a preponderance of the evidence. Id. For the above reasons, we remand the case to the Court of Common Pleas of Delaware County for further consideration consistent with this Opinion. NOTES [1] Prior to the recent amendment, Section 7403 of the Act provided as follows: (a) Competency Determination and Burden of Proof. The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence. The determination shall be made by the court. [2] Article I, Section 9 provides as follows: In all criminal prosecutions, the accused [cannot] be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. [3] Section 7402(d) of the Act was also recently amended by the legislature. Section 7402(d) provides as follows: (d) Hearing; When Required. The Court, either on application or on its own motion, may order an incompetency examination at any stage in the proceedings and may do so without a hearing unless the examination is objected to by the person charged with the a crime or by his counsel. In such event, an examination shall be ordered only after determination upon a hearing that there is a prima facie question of incompetency. Upon completion of the examination, a determination of incompetency shall be made by the court where incompetency is established by a preponderance of the evidence. Under section 7402(d), the defendant may apply for a competency examination, which the trial court may order based upon a finding that there is a prima facie question as to the defendant's incompetency. Likewise, under section 7402(d), the trial court is permitted sua sponte to order the defendant to undergo a competency examination based upon a determination that there is a prima facie question as to the defendant's incompetency. Regardless, however, of whether the trial court grants the defendant's request for a competency examination or instead sua sponte orders a competency examination of the defendant, it is clear that at the competency hearing itself the defendant must produce evidence sufficient to allow the trial court to find by a preponderance of the evidence that he is incompetent to stand trial. See 50 P.S. §§ 7402(d), 7403(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266289/	5 Cal.Rptr.3d 555 (2003) 112 Cal.App.4th 1049 Kevin D. MOLES, Plaintiff and Respondent, v. Steve GOURLEY, as Director, etc. Department of Motor Vehicles, Defendant and Appellant. No. H022750. Court of Appeal, Sixth District. October 23, 2003. 557 Bill Lockyer, Attorney General, Damon M. Connolly, Supervising Deputy Attorney General, Miguel A. Neri, Supervising Deputy Attorney General, Fiel D. Tigno, Deputy Attorney General, Karen Donald, Deputy Attorney General, for Defendant and Appellant. Walter A. MacDonald, Jr., Attorney at Law, San Jose, for Plaintiff and Respondent. 556 WUNDERLICH, J. This appeal follows a judgment rescinding a driver's license suspension. The appellant is the State of California Department of Motor Vehicles (DMV). The respondent is Kevin D. Moles, a licensed California driver. At issue is whether the trial court erred in refusing to treat an offense committed in Virginia as a drunk driving conviction under California law. We conclude that the out-of-state conviction should be given reciprocal effect in California. We therefore reverse the judgment. FACTS AND PROCEDURAL HISTORY In August 1998, Moles was convicted in Alexandria, Virginia for violating that state's law against driving while intoxicated. (Va.Code, § 18.2-266.) The Virginia record indicated that the conviction was for "driving while intox." 558 In October 1998, the DMV notified Moles that it had suspended his driving privileges as a result of the Virginia conviction. The 1998 suspension order informed Moles that he had the right to seek judicial review; he did not do so, however. In June 2000, Moles was convicted in San Luis Obispo County, California of driving while under the influence of alcohol (DUI). (Veh.Code, § 23152.)[1] In July 2000, the DMV again suspended Moles's license. As before, the order cited the Virginia conviction as a basis for the suspension. And as before, the order informed Moles of his right to seek judicial review. This time, he exercised that right. In October 2000, Moles petitioned the Santa Clara County Superior Court for a writ of mandate to compel the DMV to set aside its July 2000 suspension order. The DMV opposed the verified petition. In its opposition, the DMV submitted the Virginia conviction record that prompted its suspension of Moles's license. The trial court conducted a hearing on the petition in late November 2000. No additional evidence was submitted beyond that contained in the parties' papers, but the court entertained argument from the parties before taking the matter under submission. In December 2000, the court issued its order granting Moles's writ petition. The court characterized "the information presented by the DMV" as "generally descriptive only." Citing case law, the court concluded that the DMV had presented "insufficient evidence to show that the conviction under the Virginia statute was actually for drunk driving." The court ordered the DMV to rescind its suspension order. Thereafter, in January 2001, the court entered formal judgment granting the petition. The judgment declares that the DMV "did not have the legal right and authority" to suspend Moles's driver's license based on the Virginia conviction, and it orders the DMV to "set aside and rescind" its July 2000 suspension order. The DMV filed this timely appeal. ISSUES The DMV challenges the trial court's determination that the Virginia record constitutes insufficient evidence of a qualifying DUI conviction under the governing statutes. Alternatively, the DMV asserts that Moles waived his right to object to treatment of the Virginia conviction as a prior DUI offense, because he failed to appeal his earlier suspension, which was based on the same out-of-state conviction. STANDARD OF REVIEW The judgment in this case is based on the trial court's application of the relevant statutes to undisputed facts. We therefore review the judgment de novo. (See, e.g., McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 681-682, 91 Cal.Rptr.2d 826; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1519, 82 Cal.Rptr.2d 378.) DISCUSSION To determine the proper treatment of the Virginia offense under California law, we begin with an overview of the relevant statutesthe interstate Driver License Compact, California's DUI law, and Virginia's DUI law. We then analyze and apply 559 those statutes to the undisputed facts before us. I. The Statutory Scheme A. The Driver License Compact California has participated in the interstate Driver License Compact since 1963. (§ 15000 et seq.; see Draeger v. Reed, supra, 69 Cal.App.4th at p. 1516, 82 Cal. Rptr.2d 378; McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at p. 682, 91 Cal.Rptr.2d 826.) Participants in the compact include 39 other states plus the District of Columbia. (§ 15000; see also Historical and Statutory Notes, 66A West's Ann. Veh.Code (2003 pocket supp.) ch. 6, pp. 3-1.) The Commonwealth of Virginia is among the party-states that have joined the compact. (Va.Code, §§ 46.2-483 to 46.2-88; Com. v. Lowe (2000) 31 Va.App. 806, 525 S.E.2d 636, 640.) The Driver License Compact affords "reciprocal notification of certain driving violations." (Larsen v. Department of Motor Vehicles (1995) 12 Cal.4th 278, 282, fn. 4, 48 Cal.Rptr.2d 151, 906 P.2d 1306, citing § 15022.) "Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug" is among the violations subject to the compact. (§ 15023, subd. (a)(2).) With respect to the offenses within its ambit, "`the compact provides that the conduct leading to an out-of-state conviction will be treated as if the conduct had occurred in the driver's home state.' [Citation]" (Draeger v. Reed, supra, 69 Cal. App.4th at p. 1516, 82 Cal.Rptr.2d 378, quoting Council of State Governments, The Driver License Compact and The Vehicle Equipment Safety Compact (1962) pp. 3-4; see § 15023.) Thus, California driving privileges may be suspended based on qualifying out-of-state drunk driving convictions. (§ 13352, subds. (a), (d) [mandatory suspension]; § 13363, subd. (a) [discretionary suspension]; Draeger v. Reed, supra, 69 Cal.App.4th at p. 1517, 82 Cal.Rptr.2d 378.) The Driver License Compact "is intended to increase highway and street safety by enhancing the degree of compliance with laws governing the operation of motor vehicles in party states. [Citation.]" (Larsen v. Department of Motor Vehicles, supra, 12 Cal.4th at p. 282, fn. 4, 48 Cal. Rptr.2d 151, 906 P.2d 1306; see § 15020.) The compact is to be liberally construed to achieve its purposes. (§ 15028; McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at p. 687, 91 Cal.Rptr.2d 826.) For the compact to apply, there must be sufficient evidence of conviction under a substantially similar statute. (Draeger v. Reed, supra, 69 Cal.App.4th at p. 1521, 82 Cal.Rptr.2d 378.) California thus may not give effect to out-of-state conviction reports unless "(1) the law of the reporting state pertaining to conviction is `substantially the same' as California law pertaining to the conviction; (2) the description of the violation from which the conviction arose is sufficient; and (3) the interpretation and enforcement of the law of the reporting state are `substantially the same' as the interpretation and enforcement of the California law in question." (Ibid., quoting § 13363, subd. (b); see also § 15023, subd. (c) [where statutory language is not identical, "violations of a substantially similar nature" in another state constitute reciprocal offenses].) B. California's DUI Law "Section 23152 is the basic Vehicle Code provision prohibiting any person under the influence of alcohol or drugs from driving a motor vehicle." (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372, 211 Cal.Rptr. 748, 696 P.2d 141, fn. omitted.) In relevant part, the statute 560 makes it "unlawful for any person who is under the influence of any alcoholic beverage ... to drive a vehicle." (§ 23152, subd. (a).)[2] Thus, under California's DUI law, the relevant conduct is "to drive." (§ 23152, subd. (a).) The specified conveyance is "a vehicle." (Ibid.) Other provisions of the Vehicle Code define "vehicle" and "motor vehicle." (§ 670 [vehicle]; § 415 [motor vehicle]; see also People v. Jordan (1977) 142 Cal.Rptr. 401, 75 Cal. App.3d Supp. 1, 6-7.) C. Virginia's DUI Law Moles was convicted of violating Virginia's DUI law, which provides in part: "It shall be unlawful for any person to drive or operate any motor vehicle, engine or train ... while such person is under the influence of alcohol.... [¶] For the purposes of this section, the term `motor vehicle' includes mopeds, while operated on the public highways of this Commonwealth." (Va.Code, § 18.2-266.)[3] Thus, under Virginia law, the relevant conduct is "to drive or operate," and the 561 specified conveyances are "any motor vehicle [including highway-driven mopeds], engine or train." (Va.Code, § 18.2-266.) II. Analysis and Application As noted above, reciprocal treatment of convictions under the Driver License Compact depends on (A) a substantially similar statute in the sister-state and (B) sufficient proof of the driver's violation of that statute. (§ 13363, subd. (b).) We analyze each of those requirements in turn to determine whether they have been met in this case. A. Do California and Virginia Have Substantially Similar Laws? For an out-of-state DUI conviction to be given reciprocal treatment in California under the Driver's License Compact, the sister-state law must be "substantially the same" as California law in substance, interpretation, and enforcement. (§ 13363.)[4] Where the other jurisdiction's statutory language is not identical, "violations of a substantially similar nature" constitute reciprocal offenses. (§ 15023, subd. (c)[5] see generally Annotation, Car License Revocation or Suspension (1963) 87 A.L.R.2d 1019, § 8, pp. 1029, 1030, 1963 WL 13451, and later cases id. (2001 supp.) pp. 579-583; id., (2003 supp.) p. 23; 1 Nichols, Drinking/Driving Litigation: Criminal and Civil (2003 supp.) § 3:12, pp. 164-203.) To resolve the question presented in this case, we compare the DUI laws of California and Virginia. (Cf., McDonald v. Department of Motor Vehicles, supra, 77 Cal. App.4th at p. 685, 91 Cal.Rptr.2d 826 [comparing California and Colorado statutes]; Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1519, 1521-1522, 82 Cal.Rptr.2d 378 [comparing California and Florida statutes]; but see Scott v. Com. Dept. of Transp., Bureau of Driver Licensing (2002) 790 A.2d 291, 295, 567 Pa. 631, 636 562 [comparing the sister state's law and the language of the Driver License Compact].) In particular, this case requires us to examine differences in the two states' statutes concerning (1) the conduct that the laws address and (2) the types of vehicles that the laws cover. 1. Conduct Without question, there are differences between California and Virginia law with respect to the proscribed conduct. Under California's DUI law, the prohibited behavior is "to drive" a vehicle while intoxicated. (§ 23152.) Under Virginia law, it is "to drive or operate" specified conveyances in that condition. (Va.Code, § 18.2-266.) By including "operate," Virginia's statute expressly covers a broader range of conduct. (Cf. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760-761, 280 Cal.Rptr. 745, 809 P.2d 404 [California's implied consent law is narrower than other states].) Despite those differences, the Virginia and California DUI laws are substantially the same with respect to the behavior that counts under the Driver License Compact driving while under the influence. (See, § 15023, subd. (a)(2); Draeger v. Reed, supra, 69 Cal.App.4th at p. 1522, 82 Cal. Rptr.2d 378 [even though Florida statute also proscribed being "`in actual physical control of a vehicle'" while intoxicated, California DUI statute is "substantially the same in language, interpretation and enforcement as to the first prong of ... the Florida statute, that is, the part which prohibits `driving ... under the influence of alcoholic beverages.' (Italics added.)"].) Thus, while a state that participates in the Driver License Compact is free to outlaw other behaviors in addition to driving while intoxicated, the compact "is not concerned with [those] alcohol-related offenses." (Ibid.) As to the specific conduct made relevant by the Driver License Compact, both states proscribe the same behaviordriving while under the influence. The Virginia statute and the California statute thus are substantially the same with respect to the conduct that they prohibit. 2. Type of Vehicle We next assess differences in the two statutes as to the types of vehicles covered. California's DUI law prohibits driving "a vehicle" while intoxicated. (§ 23152; see also § 670 [vehicle]; § 415 [motor vehicle].) Virginia's DUI law applies to "any motor vehicle;" it also specifically covers an "engine or train." (Va. Code, § 18.2-266.) Virginia law thus is broader in terms of the types of conveyances it covers. Again, however, those differences are irrelevant when viewed through the prism of the Driver License Compact. (Cf., e.g., Com. v. Lowe, supra, 31 Va.App. at pp. 812, 813, 525 S.E.2d at pp. 637, 640 [noting that Virginia law refers to "motor vehicles," while Maryland law refers to "vehicles," a term that includes bicycles and children's sleds; but concluding that the two statutes are substantially similar].) An out-of-state conviction is "narrowed by the Driver License Compact." (Ibid.) "Article III of the Compact provides that foreign drunk driving convictions are to be reported to the home state of the person convicted. Article II defines `conviction' as `conviction of any offense related to the use or operation of a motor vehicle.'" (Ibid.; see § 15020 et seq. [enacting article 2 of the compact]; § 15021 [definitions]; § 15022 [reports of convictions].) "The language of the Compact is identical in the codes of the two states. [Citations.] Thus, any conviction reported ... to DMV must, of necessity, be limited to motor vehicle use while intoxicated, in compliance 563 with Articles II and III of the Compact." (Ibid.) California likewise adopted the compact's definitions. (§ 15021.) Thus, in California: "`Conviction' means a conviction of any offense related to the use or operation of a motor vehicle ...." (§ 15021, subd. (c), italics added.) As enacted in Californiaand elsewherethe Driver License Compact is concerned only with motor vehicles and their impact on the traffic safety. (See § 15020.) Though participating states are free to include other modes of transport in their DUI laws if they choose, the compact itself is not concerned with other conveyances besides motor vehicles. Proper analysis thus dictates that we compare only the compactspecific portions of the sister state's statute to our own, ignoring any surplusage. In this case, then, we ignore the Virginia statute's references to engines and trains. As thus narrowed, the relevant portion of the Virginia statute prohibits driving a motor vehicle while intoxicated, just as the California statute does. In sum, having examined Virginia's DUI law in its proper framework, we conclude that it is substantially the same as our own for purposes of reciprocal treatment under the Driver License Compact. That conclusion comports with "the important remedial purposes of the Compact and the Legislature's edict that it be liberally construed. ..." (McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at p. 687, 91 Cal.Rptr.2d 826.) B. Proof of the Offense Suspension of driving privileges is triggered by the DMV's receipt of "an abstract of the record of any court" showing a DUI conviction. (§ 13352, subd. (a).) The abstract must contain proof of conviction; evidence of the offense alone is not enough. (See Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523, 82 Cal.Rptr.2d 378; cf. Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 381, 211 Cal. Rptr. 748, 696 P.2d 141 [DMV action based on record of conviction]; Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858 [DMV action based on abstract of judgment].) Thus, for example, neither a police report nor a traffic citation proves an out-of-state conviction. (Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523, 82 Cal.Rptr.2d 378.) "The police report is not an abstract of judgment; nor does it ordinarily form part of the record of conviction." (Ibid.) "Although the traffic citation, as the charging document, is properly included in the record of conviction, ... it is insufficient, standing alone, to establish" the DUI conviction. (Ibid.) The court record also must show that the conviction was for a qualifying offense. For that reason, the compact requires the inclusion of certain information in conviction reports transmitted from sister states. (See § 15022 [setting forth the requirements for conviction reports from partystates]. Cf, Harrington v. Com., Dept. of Transp., Bureau of Driver Licensing (2000) 563 Pa. 565, 576, 763 A.2d 386, 392 [although New Jersey did not fully satisfy the technical reporting requirements of the Driver's License Compact, its report was sufficient to support a reciprocal license suspension in Pennsylvania].) In this case, the Virginia record indicates "driving while intox, 1st" as the "reason of conviction." The Virginia record qualifies as a conviction record; Moles does not contend otherwise. (Cf. Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523, 82 Cal.Rptr.2d 378 [no record of judgment of conviction].) Furthermore, in our view, it adequately describes the underlying offense. (Cf. Catanzarite v. Com., Dept. of *564 Transp., Bureau of Driver Licensing (2001) 765 A.2d 1178, 1180 [Ohio report stating that driver was convicted of "`DUI ALCOHOL/LIQUOR'" was sufficient to sustain Pennsylvania license suspension]; Harrington v. Com., Dept. of Transp., Bureau of Driver Licensing, supra, 763 A.2d at p. 388, 563 Pa. at p. 569 [New Jersey report describing offense as "operate under influence liq/drugs" was sufficient to sustain Pennsylvania license suspension]; Scott v. Com. Dept. of Transp., Bureau of Driver Licensing, supra, 790 A.2d at p. 294, 567 Pa. at p. 636 [same].) Finally, as explained above, the description of the offense is narrowed by the Driver License Compact. (Com. v. Lowe, supra, 31 Va. App. at p. 813, 525 S.E.2d at p. 640.) The Virginia record thus adequately proves that Moles was convicted for driving a motor vehicle while intoxicated, as opposed to driving or operating an engine or train. To sum up, we conclude that the Virginia record constitutes sufficient proof of conviction under that state's substantially similar DUI law. III. Waiver Given our conclusion that the Virginia conviction must be given effect, we need not and do not reach the DMV's alternative contention of waiver. CONCLUSION Under the Driver License Compact, there are two predicates for reciprocal treatment of an out-of-state drunk-driving conviction in California: a substantially similar sister state DUI statute and sufficient proof that the driver was convicted for violating that statute. Although Virginia's DUI law is broader than California's, the two statutes are substantially the same with respect to the conduct proscribed by the Driver License Compactdriving a motor vehicle while intoxicated. The record relied on by the DMV in suspending Moles's driver's license provides adequate proof that he was convicted for drunk driving in Virginia. The Virginia conviction thus is entitled to reciprocal treatment in California under the Driver License Compact. DISPOSITION The judgment is reversed. The cause is remanded to the trial court, which is directed to deny Moles's petition for writ of mandate and to reinstate the DMV's July 2000 suspension order. The DMV shall recover its costs on appeal. WE CONCUR: PREMO, Acting P.J., and ELIA, J. NOTES [1] All further statutory references are to the California Vehicle Code unless otherwise stated. [2] The full text of the California DUI statute is as follows: "(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. "(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [11] For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. [¶] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. "(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code. "(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.[H] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. "(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more. "(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State." (§ 23152.) [3] The full text of the Virginia DUI statute is as follows: "It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv). "For the purposes of this section, the term `motor vehicle' includes mopeds, while operated on the public highways of this Commonwealth." (Va.Code, § 18.2-266.) [4] Section 13363 reads as follows: "(a) The [DMV] may, in its discretion, except as provided in Chapter 6 (commencing with Section 15000) of Division 6, of this code [the Driver License Compact], suspend or revoke the privilege of any resident or nonresident to drive a motor vehicle in this State upon receiving notice of the conviction of the person in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the privilege to operate a motor vehicle. "(b) Whenever any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada reports the conviction of a violation in such place by a person licensed in this State, the department shall not give effect to such report pursuant to subdivision (a) of this section or Section 15023 unless the department is satisfied that the law of such other place pertaining to the conviction is substantially the same as the law of this State pertaining to such conviction and that the description of the violation from which the conviction arose, is sufficient and that the interpretation and enforcement of such law are substantially the same in such other place as they are in this State." [5] Section 15023, subdivision (c) reads as follows: "If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this section, such party state shall construe the denominations and descriptions appearing in subdivision (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this section."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2266300/	5 Cal.Rptr.3d 373 (2003) 112 Cal.App.4th 655 The PEOPLE, Plaintiff and Respondent, v. Carlos Ozuna GARZA, Defendant and Appellant. No. H024041. Court of Appeal, Sixth District. October 9, 2003. Review Granted January 14, 2004. 377 Alan Siraco, for Appellant (Under appointment by the Court of Appeal) Carlos Ozuna Garza. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Gerald A. Engler, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Respondents The People of the State of California. RUSHING, P.J. The defendant, Carlos Ozuna Garza, was found by police in a Lincoln Town Car that had been missing from his former employer for a week. He was under the influence of phencyclidine (PCP). A jury found the defendant guilty of auto theft, receiving or retaining stolen property (the Lincoln) and being under the influence of a controlled substance. He claims on appeal that these charges were unsupported by substantial evidence, his Marsden[1] motion and motion for new trial were improperly denied, conviction for theft of and retaining the same stolen property was barred by statute, the court improperly instructed the jury on various issues, the cumulative effect of these errors prejudiced his case, and his custody credits were improperly calculated. We find the trial court properly denied his Marsden motion and motion for new trial, as he failed to produce evidence that defense counsel performed ineffectively or that an irreconcilable breakdown arose in communications between counsel and client. Substantial evidence supported each of the convictions. The jury was properly instructed regarding the legal and factual issues at hand. The improper 378 conviction for both theft and retention of the same property requires the reversal of his conviction for retaining the Lincoln. Error did not cumulatively affect his conviction. We will remand the matter to the trial court for reconsideration of the calculation of custody credits. Statement Of The Case An information charged the defendant with auto theft (Veh.Code, § 10851, subd. (a)), receiving or retaining the same stolen vehicle (Pen.Code, § 496),[2] and being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)). The information also alleged the defendant had served two prior prison terms (§ 667.5, subd. (b)). A jury found the defendant guilty of all charges and, in bifurcated proceedings, the court found true the allegations of priors. The court denied the defendant's motion for a new trial, which alleged ineffective assistance of trial counsel, and sentenced him to a total prison term of six years. Statement Of Facts Police Officer Kelvin Pham found the defendant lying in the driver's seat of a Lincoln Town Car with the engine running. The defendant's behavior showed signs of PCP intoxication: he was unresponsive to questioning, drooled, stumbled, and required assistance to get out of the car. The Lincoln was parked in a strip mall a few blocks from the limousine company that had just reported the auto stolen. The fleet administrator, Judy Walton noticed two cars missing, including this Lincoln, approximately one week before its recovery by Officer Pham. The defendant had worked as a mechanic at the limousine company until approximately three weeks before Officer Pham's discovery of the vehicle. Walton testified that keys to the autos were kept hanging from a board that was open to company employees, or occasionally were left in the autos themselves. The area housing the keys and autos was not secure, but a stranger would have trouble finding his way into the office where the keys were kept. Walton never saw any customers in this area. Discussion I. The Marsden motion was Properly Denied Facts Prior to trial, defense counsel sought and obtained a one-month continuance in order to complete her investigation of the case. On the day set for jury selection, the defendant complained to the court regarding his legal representation. The court construed this complaint as a Marsden motion and cleared the courtroom. The defendant explained he had asked counsel to call certain witnesses and she had refused to do so. Specifically, the defendant wanted to present expert evidence regarding the effects of drug use. The court asked trial counsel about her investigation of the case and interaction with the defendant. Counsel explained that she had met with the defendant, investigated his account, found the witnesses requested by the defendant to be unhelpful to his case, and discussed with the defendant why she did not want to present such evidence. Counsel stated she believed the police report and cross-examination of Officer Pham would suffice to address matters related to the defendant's ingestion of PCP. The court explained to the defendant that the prosecution's witness, Officer 379 Pham, could be cross-examined by defense counsel about this subject. The court then asked the defendant why he had not previously lodged his complaints about counsel. The defendant responded that he did not know how to do so. The trial court ruled that the motion was too late, and regardless of the timing, denied the motion on its merits. Discussion Every defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) These constitutional rights entitle the defendant not just to "bare assistance" but rather to effective assistance. (People v. Jones (1991) 53 Cal.3d 1115, 1134, 282 Cal.Rptr. 465, 811 P.2d 757; see also Wood v. Georgia (1981) 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220; People v. Bonin (1989) 47 Cal.3d 808, 833, 254 Cal. Rptr. 298, 765 P.2d 460.) "`"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance."'" (People v. Hart (1999) 20 Cal.4th 546, 603, 85 Cal. Rptr.2d 132, 976 P.2d 683; People v. Barnett (1998) 17 Cal.4th 1044, 1085, 74 Cal. Rptr.2d 121, 954 P.2d 384.) Defendant concedes he is entitled to replacement counsel only if he has made a substantial showing that the first appointed attorney is not providing adequate representation, or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Hart, supra, 20 Cal.4th at p. 603, 85 Cal.Rptr.2d 132, 976 P.2d 683.) Denial of the motion is proper unless the defendant shows that a failure to replace the appointed attorney substantially impaired his right to assistance of counsel. (People v. Barnett, supra, 17 Cal.4th at p. 1085, 74 Cal.Rptr.2d 121, 954 P.2d 384.) The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 25 Cal.Rptr.2d 867, 864 P.2d 40, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 822-823, 72 Cal.Rptr.2d 656, 952 P.2d 673.) Disagreement between a defendant and trial counsel regarding trial tactics does not necessarily show that counsel is performing ineffectively. (People v. Crandell (1988) 46 Cal.3d 833, 859-860, 251 Cal.Rptr. 227, 760 P.2d 423, abrogated on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365, 121 Cal.Rptr.2d 580, 48 P.3d 1136.) Nor does such disagreement require the court to find the defendant's account to be more credible than that of defense counsel. (People v. Smith (1993) 6 Cal.4th 684, 696-697, 25 Cal.Rptr.2d 122, 863 P.2d 192.) Rather, a defendant must produce exculpatory or impeachment evidence showing a likelihood that he would have obtained a more favorable result had such information been presented to a jury. (People v. Bolin (1998) 18 Cal.4th 297, 334, 75 Cal.Rptr.2d 412, 956 P.2d 374.) Here, the defendant does not elucidate any evidence that would have positively impacted his case had defense counsel called expert or percipient witnesses to explain the effects of PCP on the defendant. He asserts that "[h]ad the jury been presented with evidence that PCP prevented [defendant] from driving, or from having the specific intent to permanently deprive [the limousine company] of the car because he did not really know he was in the car, it is extremely likely this jury would not have been convinced of the truth 380 of [defendant's] guilt beyond a reasonable doubt." While evidence regarding the effects of PCP was relevant to the defendant's mental state at the time when he was found, its relevance as to his mental state for the period of at least a week in which the Lincoln was missing was negligible. The verdicts show that the jury believed the defendant was responsible for the theft of the Lincoln approximately a week before he was found in the auto. We thus find no potential for prejudice from the lack of expert or percipient witnesses to the defendant's intoxication. II. The Verdicts were Supported by Substantial Evidence that the Defendant Stole the Lincoln and that his Ingestion of PCP was Willful Defendant claims there was insufficient evidence to support the convictions, in that the evidence did not show that he took the Lincoln, knew it was stolen when he was found sitting in it, or ingested PCP willfully. We disagree. On appeal "the court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, 48 Cal. Rptr.2d 135, 906 P.2d 1290, quoting People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738; People v. Kipp (2001) 26 Cal.4th 1100, 1128, 113 Cal.Rptr .2d 27, 33 P.3d 450.) We presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal. Rptr. 431, 606 P.2d 738.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal. App.3d 810, 813, 172 Cal.Rptr. 321.) The conviction will be overturned only if no rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103, citing People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.) Here, substantial evidence supported the verdict that the defendant stole the Lincoln. He had worked for the limousine company that owned the automobile and so knew where to find its keys. The fleet supervisor testified that keys were sometimes left unattended. Keys and automobiles were potentially accessible 24 hours a day. Defendant was found in the Lincoln a week after it was discovered missing, a few weeks after his employment was terminated. The keys were in the ignition and nobody else was in the automobile. The jury's verdicts were thus supported by the evidence. There was also substantial evidence that the defendant willfully consumed PCP. Officer Pham discussed in detail his training in recognizing the effects of PCP use and the defendant's symptoms of PCP intoxication when he was arrested. A nurse testified that she drew the defendant's blood when he was arrested. A criminalist testified that scientific testing showed this blood contained PCP. Officer Pham testified regarding the defendant's unresponsiveness to initial questions, slurred speech, drooling, and stumbling. These symptoms indicate the defendant should have been aware that either he was under the influence of a powerful drug or was seriously ill. He did not, however, express any concern for his health to the arresting officers. From 381 these facts, it was reasonable for the jury to conclude that the defendant's ingestion of PCP was willful. III. The Defendant's Conviction for Both Taking and Receiving Stolen Property Requires Reversal The defendant claims his convictions for both theft and retention of the same stolen property violated the section 496[3] bar on such dual punishment. The People argue that because the retaining of the Lincoln was completely divorced from its theft by the passage of time, such dual conviction was permissible. We agree with the defendant. At common law, one could not be dually convicted for both the theft and receipt of the same stolen property. (People v. Price (1991) 1 Cal.4th 324, 464, 3 Cal.Rptr.2d 106, 821 P.2d 610; People v. Jaramillo (1976) 16 Cal.3d 752, 759, 129 Cal.Rptr. 306, 548 P.2d 706; People v. Bausell (1936) 18 Cal.App.2d 15, 18, 62 P.2d 774.) Over time, the common law bar on dual conviction expanded to prohibit dual conviction for a variety of offenses in which one who has stolen property is likely to partake; such as sale, concealment and withholding of the property. (People v. Allen (1999) 21 Cal.4th 846, 858, 89 Cal.Rptr.2d 279, 984 P.2d 486.) Prior to 1992, there existed two exceptions to the bar on dual conviction. (People v. Price, supra, 1 Cal.4th at p. 464, 3 Cal.Rptr.2d 106, 821 P.2d 610.) According to one of these exceptions, dual conviction was proper where the evidence showed the theft was completely divorced from a subsequent receipt, with the typical example describing a thief who disposed of the property and subsequently receives it back in a separate transaction. (People v. Allen, supra, 21 Cal.4th at p. 858, 89 Cal. Rptr.2d 279, 984 P.2d 486; People v. Jaramillo, supra, 16 Cal.3d at pp. 758-759, 129 Cal.Rptr. 306, 548 P.2d 706, both citing People v. Tatum (1962) 209 Cal.App.2d 179,183, 25 Cal.Rptr. 832.) In 1992, the section governing receipt of stolen property was amended to codify the principle that "no person may be convicted [of buying, receiving, withholding, concealing stolen property] and of the theft of the same property." (§ 496, subd. (a).) This amendment led to the question of whether or when the "`complete divorcement'" of a withholding of property by the thief could still properly lead to dual punishment, as such a result would facially violate section 496 and the common law bar on dual punishment of theft and receipt of the same property. (People v. Hinks (1997) 58 Cal. App.4th 1157, 1162, 68 Cal.Rptr.2d 440; People v. Tatum, supra, 209 Cal.App.2d at p. 183, 25 Cal.Rptr. 832; People v. Jaramillo, supra, 16 Cal.3d at p. 758, 129 Cal. Rptr. 306, 548 P.2d 706.) To resolve this confusion, the California Supreme Court examined the case law and legislative history regarding dual punishment for theft and retention of stolen property, and ruled that the 1992 amendment of section 496 abrogated the "`complete divorcement'" exception to the bar on dual punishment. (People v. Allen, supra, 21 Cal.4th at pp. 857-858, 89 Cal. Rptr.2d 279, 984 P.2d 486, citing People v. Hinks, supra, 58 Cal.App.4th at p. 1165, 68 382 Cal.Rptr.2d 440.) In reaching this conclusion, the Supreme Court found that one of the key purposes of the 1992 amendment was to allow punishment of a thief who has retained possession of a stolen object beyond the expiration of the statute of limitation for the original theft (Stats.1992, ch. 1146, § 2, p. 5375)[4] and not to create a back-door method to achieve dual conviction. Even after the 1992 amendment to section 496, however, some published and unpublished cases have come to the conclusion that the "complete divorcement" theory continues to permit a defendant to be convicted of both theft and withholding of the same property, with the divorcement provided by the mere passage of time. (E.g., People v. Strong (1994) 30 Cal. App.4th 366, 373, 35 Cal.Rptr.2d 494.) We hold, however, that the application of the divorcement exception where the alleged divorcement arises solely from the passage of time violates the clear language, legislative intent, and case law regarding section 496 and its common law roots.[5] Even the court that originated the concept of "complete divorcement" observed that theft necessarily requires that the thief maintain possession of the stolen property for a period of time. (People v. Tatum, supra, 209 Cal.App.2d at p. 183, 25 Cal.Rptr. 832.) "To conceal and withhold is the thief's purpose from the very moment that he gains possession of the property. It is part and parcel of the theft." (Ibid.) Various statutes also recognize that theft necessarily contemplates the withholding of the property from the owner. (E.g., Veh.Code, § 10851 [statute requires intent to permanently or temporarily deprive rightful owner of vehicle]; § 484 [fraudulent representations are "treated as continuing, so as to cover any (property later) received as a result thereof, and the complaint ... may charge that the crime was committed on any date during" such fraudulent representations].) Thus, the core principle behind the bar on dual punishment is that "`if a person is actually a thief he cannot possibly be guilty of receiving the very property which he himself stole.'" (People v. Allen, supra, 21 Cal.4th at p. 854, fn. 4, 89 Cal.Rptr .2d 279, 984 P.2d 486, citing People v. Stewart (1986) 185 Cal.App.3d 197, 204, 229 Cal. Rptr. 445, abrogated on other grounds by People v. Carr (1998) 66 Cal.App.4th 109, 113-114, 77 Cal.Rptr .2d 639.) Cases analyzing the development of the divorcement exception do not enumerate the passage of time as a potential cause of such divorcement. Echoing People v. Tatum, People v. Jaramillo and subsequent California Supreme Court cases offered a hypothetical in which the thief disposes of, then again receives the same stolen property, as an example of complete divorcement. (See People v. Jaramillo, supra, 16 Cal.3d at p. 759, fn. 8, 129 Cal.Rptr. 306, 548 P.2d 706; People v. Allen, supra, 21 Cal.4th at pp. 860-861, 89 Cal.Rptr .2d 279, 984 P.2d 486, citing People v. Reyes (1997) 52 Cal.App.4th 975, 987, 61 Cal.Rptr.2d 39.) Even the choice of the term, divorcement, implies that a separation must arise between the thief and his booty before the exception becomes applicable. (Webster's 3d New Internat. Diet. (1993) Divorce, p. 383 664.) Thus, the developers of the divorcement exception did not contemplate that the passage of time would create such divorcement. Further, our interpretation is consistent with the language of section 496. (People v. Hinks, supra, 58 Cal.App.4th at p. 1164, 68 Cal.Rptr.2d 440 ["significance should be given to every word of a statute, if possible, and an interpretation which renders part of the statute surplusage or nugatory should be avoided"]; see also People v. Allen, supra, 21 Cal.4th at p. 859, 89 Cal.Rptr.2d 279, 984 P.2d 486; Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592, 1600-1602, 49 Cal.Rptr.2d 302, modified by statute on other grounds as stated in Denver D. Darling, Inc., v. Controlled Environments Const, Inc. (2001) 89 Cal. App.4th 1221, 1231, fn. 4, 108 Cal.Rptr.2d 213.) Were we to accept the People's position and that adopted by People v. Strong, supra, 30 Cal.App.4th 366, 35 Cal.Rptr.2d 494, the portion of section 496 that reads, "no person may be convicted both pursuant to this section and of the theft of the same property" would not apply to a significant portion of the specific actions made criminal by the statute; namely, withholding, concealing or aiding the withholding or concealing of stolen property. Contrary to the implication of Strong, the statute does not distinguish between brief withholding, continued withholding, withholding for a long time, or withholding beyond the statute of limitations for the original theft. The statute simply bars conviction for both theft and concealing of the stolen property. (People v. Hinks, supra, 58 Cal.App.4th at p. 1165, 68 Cal.Rptr.2d 440.) Our holding that the passage of time may not form the basis to find divorcement thus supports the plain meaning of section 496 and is consistent with the common law development of the bar on dual punishment. Even if the "complete divorcement" theory of dual conviction still existed, the facts of this case show no basis to conclude the verdict for receiving stolen property was based upon this theory. The prosecutor did not argue that the receipt of the Lincoln was divorced from its theft. Nor did the prosecutor argue that the initial taking of the Lincoln was merely a joyride, and was not effected with the intent to permanently deprive the company of its property. (See People v. Jaramillo, supra, 16 Cal.3d at pp. 757, 759, 129 Cal. Rptr. 306, 548 P.2d 706 [defendant may properly be convicted both of Veh.Code, § 10851 and Pen.Code, § 496 if the initial taking was merely a joyride without the intent to permanently deprive the owner of possession and was thus not a theft crime; dual conviction, however, requires specific findings that the taking was not a theft].) The jury was not required to complete a special verdict form stating what facts formed the bases for the car theft and receiving stolen property counts. (See People v. Jaramillo, supra, 16 Cal.3d at pp. 757, 759, 129 Cal.Rptr. 306, 548 P.2d 706.) The jury was not instructed that conviction pursuant to section 496 required any showing of divorcement. The verdict form explained that section 496 criminalizes only buying or receiving stolen property, and did not distinguish between divorced or nondivorced withholding. Nor was the jury instructed pursuant to CALJIC No. 17.02 that these counts alleged separate offenses, or pursuant to CALJIC No. 17.03 that dual conviction for car theft and receipt of stolen property was barred. The fact that the jury was instructed that repetition of legal theories was not meant to denote any focus up on them strengthens the concern that what occurred was forbidden dual conviction. 384 The inference that the defendant was improperly dually convicted has therefore not been rebutted. (See People v. Jaramillo, supra, 16 Cal.3d at p. 759, 129 Cal.Rptr. 306, 548 P.2d 706 [reversal is necessary where inference of dual conviction was not rebutted].) We must reverse the convictions. If the People do not timely elect to retry the defendant on a theory permitting dual conviction, the trial court should reinstate only the conviction of violating Vehicle Code, section 10851. (People v. Allen, supra, 21 Cal.4th at p. 852, 89 Cal.Rptr.2d 279, 984 P.2d 486, citing People v. Jaramillo, supra, 16 Cal.3d at p. 760, 129 Cal. Rptr. 306, 548 P.2d 706 and People v. Briggs (1971) 19 Cal.App.3d 1034, 1037, 97 Cal.Rptr. 372 [both applying this procedure where defendant was convicted both of Veh.Code, § 10851 and Pen.Code, § 496].) IV. The Jury was Properly Instructed on the Elements of Being Under the Influence The defendant claims CALJIC No. 16.060 erroneously lowered the prosecution's burden of proving his consumption of PCP was willful. This occurred, he argues, because while the bulk of CALJIC No. 16.060 explains that such consumption must be willful, one section allows the defendant to be found guilty if the jury finds he "was under the influence of a controlled substance...." While this section taken on its own could be misleading, the instructions on the whole made clear that only willful consumption of a controlled substance was penalized. Other instructions, outside of CALJIC No. 16.060 explained that consumption of PCP was a general intent crime, requiring the intent to commit the forbidden act. The jury was further told to regard each instruction in light of the others. In this way, the absence of the willfulness element in one portion of the instruction was remedied by other instructions. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, 74 Cal.Rptr.2d 212, 954 P.2d 475.) The instructions issued to the jury were thus not infirm in the manner suggested by the defendant. V. The Court's Refusal to Instruct Regarding the Defense of Voluntary Intoxication was Proper The defendant claims the trial court erred by refusing to instruct the jury that his voluntary intoxication could serve as a defense to the theft of the Lincoln.[6] He argues this error violated his constitutional rights to trial by jury and to present a defense. A defendant is entitled to instruction on the relevance of intoxication to the formation of the specific intent to commit a crime only if he has presented substantial evidence that he was intoxicated and that the intoxication actually impacted the formation of intent to commit the crime. (People v. Williams (1997) 16 Cal.4th 635, 677, 66 Cal.Rptr.2d 573, 941 P.2d 752.) The evidence that he was under the influence of PCP only related to the time at which he was found. The Lincoln had disappeared at least a week before the defendant was found lying intoxicated therein. The defendant presented no evidence of his mental state at the time the Lincoln was actually stolen. (See People v. Horton (1995) 11 Cal.4th 1068, 1119, 47 Cal.Rptr.2d 516, 906 P.2d 478.) Evidence that a defendant was intoxicated at one point in time alone does not constitute 385 substantial evidence that he was intoxicated at any other point in time. (Ibid., People v. Williams, supra, 16 Cal.4th at pp. 677-678, 66 Cal.Rptr.2d 573, 941 P.2d 752.) The trial court's refusal to so instruct the jury was thus proper. (People v. Horton, supra, 11 Cal.4th at p. 1119, 47 Cal.Rptr.2d 516, 906 P.2d 478; People v. Williams, supra, 16 Cal.4th at pp. 677-678, 66 Cal.Rptr.2d 573, 941 P.2d 752.) VI. The Court's Comments on the Evidence were Proper The defendant claims the trial court expressed bias against his case by providing an inaccurate instruction and commenting on circumstantial evidence that appellant stole the Lincoln. He argues these comments denied his rights to trial by jury, fair trial and due process, requiring reversal of all counts. Facts During deliberation, the jury sent two questions to the court. One asked, "[d]oes the definition of `drive' include sitting in the driver's seat with the motor running but not moving?" The other asked, "[i]f defendant was in the car but not driving, knowing that it was stolen, someone else was driving, does that constitute `taking'?" The trial court advised counsel of his proposed response to the jury, which included examples of circumstantial evidence showing that one had driven a car, and observations that the prosecution's case was based upon such circumstantial evidence. Defense counsel objected to the court's giving any explanation beyond specific definitions of "taking" and "driving," and reference to relevant jury instructions. She also opined that it was improper for the court to discuss the facts of the case. The court responded to defense objections by stating that the California Constitution permitted it to comment on the evidence so long as it was made clear that the jury may accept or reject such comment. Counsel conceded that the court could observe that there was no evidence presented that anybody else had driven the car. When the court stated that it would proceed according to its original plan, defense counsel stated, "[t]hat's fine, Your Honor." The court instructed the jury, "Part of what I'm going to tell you is a comment on the evidence. The State Constitution permits a trial judge to comment on the evidence. My comments, however, may be accepted or rejected by you. You are not bound at all by what I say concerning any evidence. [¶] To answer the first question: `Taking' means to get into one's possession or to transfer into one's keeping or control. There is no evidence in this case of someone else being in the car. [¶] With reference to `driving,' driving is any volitional movement of the vehicle. There is a case from the appellate court on which the facts were as follows: [¶] A California Highway Patrolman found a vehicle in a ditch along the road with a person at the wheel passed out from intoxication. No one saw any driving. No one else was in the vehicle. The person at the wheel was still convicted of driving under the influence. That was an application of common sense. [¶] You are reminded in examination as prospective jurors that you were to use your common sense. Common sense is not in the instructions. That is something that you supply. [¶] Now with respect to the application of common sense, you may make reasonable inferences. And you are reminded of the instructions on pages 3 and 4 concerning circumstantial evidence. [¶] As an example of reasonable inference, there is a little scenario that I can give you. A wife hears the garage door closing. She goes out on the porch. She sees her husband in the car that she had put away the night before. The motor is running, 386 sitting in the driveway. [¶] She can make a reasonable inference that the husband took the car in the garage, drove it out, and had it standing there when she was looking at it. Reasonable inference. [¶] In this case you have heard evidence of the location of the [limousine company] lot. You have heard evidence as to where the defendant lives. You have heard evidence as to the defendant's location at the time of his arrest. And it's up to you to make reasonable inferences from all the facts that have been shown by the evidence." The court denied defense counsel's request to rebut to the jury the court's comments. The jury returned a verdict shortly thereafter. Discussion "The [trial] court may make any comment on the evidence and the testimony ... as in its opinion is necessary for the proper determination of the cause." (Cal. Const., art. VI, § 10; § 1127.) It also "shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them...." (§ 1127.) These provisions were designed to allow the court "to utilize its experience and training in analyzing evidence to assist the jury in reaching a just verdict. [Citations.]" (People v. Cook (1983) 33 Cal.3d 400, 407, 189 Cal.Rptr. 159, 658 P.2d 86, overruled in part on other grounds by People v. Rodriguez (1986) 42 Cal.3d 730, 765-767; People v. Proctor (1992) 4 Cal.4th 499, 542, 15 Cal.Rptr.2d 340, 842 P.2d 1100.) When a court finds it necessary to comment on trial evidence to a jury, the comment must be accurate and not argumentative. (People v. Proctor, supra, 4 Cal.4th at p. 542, 15 Cal.Rptr.2d 340, 842 P.2d 1100; People v. Gates (1987) 43 Cal.3d 1168, 1207, 240 Cal.Rptr. 666, 743 P.2d 301; People v. Rodriguez, supra, 42 Cal.3d at p. 766, 230 Cal.Rptr. 667, 726 P.2d 113.) Thus, the trial court may not withdraw material evidence from the jury's consideration, distort the record, impliedly direct a verdict, or in any other way disturb the jury's factfinding power. (Ibid.) Here, the jury's questions indicated there was confusion about the analysis of circumstantial evidence that defendant had access to the Lincoln's keys and was found in the Lincoln a week after it was reported missing. This confusion triggered the court's duty to clarify the applicability of the law to the evidence at hand. Importantly, the court first stated that its observations regarding the facts of the case were subservient to the jury's interpretation of such evidence. This instruction lessened any tendency of the subsequent examples to lead the jury to believe a certain finding was required. The court then redirected the jury towards the standard instructions on analysis of circumstantial evidence. Standard jury instructions concerning circumstantial evidence do not undermine the prosecution's burden of proving guilt beyond a reasonable doubt, particularly in light of other instructions correctly stating the prosecution's burden. (People v. Kipp (1998) 18 Cal.4th 349, 375, 75 Cal.Rptr.2d 716, 956 P.2d 1169.) These instructions properly direct the jury to accept an interpretation of the evidence favorable to the prosecution and unfavorable to the defense only if no other "`reasonable'" interpretation can be drawn. (Ibid.) Notably, the court's instruction foreclosed several potential erroneous bases for conviction. The jury's questions indicated they considered that the defendant's passive activities of sitting in the car or being a passenger therein may have formed the basis for conviction. The court's instruction that taking and driving required substantial 387 volitional and possessory actions by the defendant clearly excluded these conclusions. Further, the court's examples of circumstantial evidence were evenly divided between noncriminal and culpable activities. While one of the examples considered evidence that a person had driven a car into a ditch while intoxicated, the other considered the innocent act of a husband moving the wife's car. The court's explanation of both culpable and non-culpable examples of circumstantial evidence of driving indicated to the jury that even if it believed the defendant drove the Lincoln, such driving was still innocent if it was not accompanied by other necessary factors. The court finally noted the proximity of the limousine company to the location where the defendant was found, and that there was no evidence that anyone else had driven the Lincoln. This statement brought to the jury's attention the circumstantial evidence to which the instructions applied. We find that the court's cautionary instructions and the overall balance of the court's statements overcame any likelihood they improperly swayed the jury. The comments did not withdraw evidence from the jury's consideration, distort the evidence, direct or argue towards a verdict of guilt. (See People v. Proctor, supra, 4 Cal.4th at p. 542, 15 Cal.Rptr.2d 340, 842 P.2d 1100; People v. Rodriguez, supra, 42 Cal.3d at p. 766, 230 Cal.Rptr. 667, 726 P.2d 113; People v. Gates, supra, 43 Cal.3d at p. 1207, 240 Cal.Rptr. 666, 743 P.2d 301.) The court's comments on the evidence were thus proper. VII. The Motion for New Trial was Properly Denied The defendant claims the trial court erroneously denied his motion for a new trial. This motion was based upon the alleged ineffectiveness of trial counsel. The trial court appointed independent counsel to prepare this motion. In the motion, defendant alleged that trial counsel did not visit him in jail often enough, did not discuss a defense strategy with him, and would not discuss certain matters with him. For example, trial counsel refused to investigate why the defendant's jacket was omitted from the police's evidence list, and why the prosecution referred to the defendant's old address during argument. Independent counsel opined that trial counsel failed to investigate several potential sources of exculpatory evidence, including the jacket and individuals who witnessed the defendant lying in the Lincoln before he was found. Referring only to its denial of the defendant's previous Marsden motion on the merits, the trial court denied the current motion. A defendant may move to be granted a new trial where error of the trial court or misconduct of counsel deprived him of a fair trial. (§ 1181; People v. Fosselman (1983) 33 Cal.3d 572, 582-583, 189 Cal.Rptr. 855, 659 P.2d 1144.) In order to prevail on a motion for a new trial alleging ineffective assistance of counsel, the defendant must show that counsel's deficient performance withdrew a potentially meritorious defense or otherwise prejudiced his case to the extent that the result of the verdict is unreliable. (People v. Earp (1999) 20 Cal.4th 826, 870, 85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Fosselman, supra, 33 Cal.3d at pp. 583-584, 189 Cal. Rptr. 855, 659 P.2d 1144.) The denial of a motion for a new trial will only be reversed in the case of "`"`manifest and unmistakable abuse of discretion.'"' [Citation.]" (People v. Earp, supra, 20 Cal.4th at p. 890, 85 Cal.Rptr.2d 857, 978 P.2d 15.) The trial court has the power to evaluate the credibility of evidence in support of a motion for a new trial. (People v. Richard (1951) 101 Cal.App.2d 631, 635, 388 225 P.2d 938.) Here, the defendant's affidavit consists largely of his subjective evaluation of defense counsel's reaction to his views on the case, many of which actually were addressed at trial. For example, he wrote, "her approach to the meeting[7] was that I should have taken the offer, and the entire meeting was negative"; "when I tried to bring [the jacket] up to counsel, it was completely ignored"; "counsel never really was willing to listen to me regarding my defenses"; "my attempts to provide [information that cars frequently were missing from the limousine company for periods and later found] seemed to fall on deaf ears; ..." In fact, the limousine company's fleet administrator did testify that she discovered that cars were missing on a regular basis, and that the keys were available to many employees. In his affidavit, independent counsel stated that defense counsel had performed some investigation, but pointed to a few areas that he believed should have been investigated further. Specifically, he pointed to her failure to investigate what happened to the defendant's jacket that was found in the Lincoln with him, failure to interview other witnesses to the defendant's lying in the Lincoln, and a general lack of "meaningful attorney-client relationship prior to or during trial." The defendant here fails to elucidate how investigation of these subjects could have led to a more favorable result for the defendant. As discussed above, the court made inquiry into the defendant's pretrial Marsden motion and found acceptable defense counsel's explanation that she had in fact interviewed witnesses suggested by the defendant and found them to be unhelpful to his case. Further, many of the issues the defendant wished to pursue were in fact presented to the jury. The defendant admits defense counsel did cross-examine Officer Pham regarding the care with which the investigation was undertaken by asking him how officers had lost the defendant's jacket. Independent counsel asserts that defense counsel should have tracked down the person who called the police to obtain the identities of individuals who were allegedly seen taking things from the Lincoln at the time of the call to police. He did not, however, explain whether there was any indication in the police records how defense counsel could find these people, or how they would exonerate the defendant. Officer Pham testified that nobody else was in or near the auto when he arrived at the scene. The involvement of coperpetrators in the theft or receipt of the Lincoln would not erase the fact that the defendant was found in possession of a car to which he had access, but that he did not have permission to take. In this light, we find the trial court's implicit judgment in favor of defense counsel's credibility to have been reasonable, as it appears counsel did in fact listen to the defendant, investigate his account, and present what helpful evidence there was to the jury. VIII. Cumulative Prejudice The lack of an accumulation of error necessarily leads to the conclusion that no prejudice arose therefrom. IX. The Recalculation of Custody Credits is Remanded to the Trial Court The defendant claims his custody credits were improperly calculated. Specifically, he claims the trial court erred by not considering eight days he spent in custody on the instant charges before he *389 began a sentence for an unrelated misdemeanor. The defendant has written to the trial court regarding this dispute and received no response. The People argue that the record does not support the contention that the defendant would have been free from custody in this intervening eight-day period. Any days spent in custody shall be credited to a defendant's term of imprisonment. (§ 2900.5.) It is the duty of the trial court to calculate custody credits rather than relegating this ministerial matter to the Court of Appeal, as the trial court is in a better position to make the relevant factual findings. (People v. Fares (1993) 16 Cal.App.4th 954, 957-958, 20 Cal. Rptr.2d 314.) The record does not show that the defendant waived his right to custody credits. (See People v. Guzman (1995) 40 Cal.App.4th 691, 694, 47 Cal. Rptr.2d 53.) The parties do not dispute that the defendant was arrested for the current offense on December 27, 2000. He began serving his 90-day sentence on the unrelated matter on January 3, 2000. The probation report does not state any reason to believe the defendant would have been in custody during the disputed eight days absent his arrest on the current conviction. We therefore remand this matter to the trial court for reconsideration of the defendant's custody credit calculation in light of these observations. The trial court shall make factual findings regarding the above disputed custody credits and shall describe its reasons for awarding or denying credits pursuant to sections 2900.5 and 4019. And in the interest of judicial economy, it shall also endeavor to respond to defendants' future requests for attention to such matters. (See People v. Fares, supra, 16 Cal. App.4th at pp. 957-958, 20 Cal.Rptr.2d 314.) DISPOSITION The defendant's convictions of auto theft and receiving stolen property are reversed. If the people do not timely elect to retry the defendant on a theory permitting dual conviction, the trial court shall reinstate only the conviction for violation of Vehicle Code section 10851. We also remand this matter to the trial court for consideration of the applicability of sections 2900.5 and 4019 to the time period of December 27, 2000, through January 3, 2001, and order it to produce its analysis of this issue for the record and an amended abstract of judgment if appropriate. In all other respects the judgment is affirmed. WE CONCUR: PREMO and WUNDERLICH, JJ. NOTES [1] People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44. [2] All further statutory references shall be to the Penal Code unless indicated otherwise. [3] Section 496 reads in relevant part, "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. ... [¶] A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property." [4] "It is the intent of the Legislature to provide for the prosecution of principals in the actual theft of the property who continue to possess that property after the statute of limitations has run on the theft of the property." [5] Our holding is specifically limited to cases in which only the passage of time constitutes the divorcement. We do not address whether the complete divorcement exception would permit dual conviction if a defendant steals, loses possession of, then again receives the same stolen property. (See People v. Jaramillo, supra, 16 Cal.3d at p. 759, fn. 8, 129 Cal.Rptr. 306, 548 P.2d 706.) [6] The defendant also argues that this defense was relevant to the receipt of stolen property. Because we are reversing his conviction for section 496, we need not consider whether additional error impacted that conviction. [7] It should be noted that the defendant was represented by different counsel, Ms. Smith, for the preliminary hearing, and thus, he had more than just one meeting with his defense team prior to trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373293/	236 Ga. 326 (1976) 223 S.E.2d 672 HERLONG v. THE STATE. 30626. Supreme Court of Georgia. Argued January 13, 1976. Decided February 11, 1976. Rehearing Denied February 24, 1976. Floyd H. Wardlow, Jr., for appellant. William J. Forehand, District Attorney, Arthur K. Bolton, Attorney General, for appellee. PER CURIAM. James Gandy and James Herlong, Jr. were indicted, tried and convicted for murder. Each received a life sentence. Herlong filed the present appeal. 1. Charlie Davis, a retired railroad employee and bootlegger, left his home, where he lived with his wife in Ashburn, Turner County, Georgia, at 6:30 p. m. on Saturday, January 19, 1974. When he failed to return home the following morning, his wife began searching for him. At approximately 2 p. m. on Sunday afternoon his wife and her nephew sighted the automobile he had left home in the night before approximately one and one-half miles from his home parked in a rear yard of the Gold Kist Peanut Company. The ignition keys were missing. They drove the automobile to his home by "straight-wiring" the switch and upon arrival there they noticed blood on the fender and body of the automobile. They removed the back seat, found Davis' body stuffed in the trunk and called the police. A medical examination of the victim's body showed that he had been shot twice, once in the back of the head and once near the temple. Two .22 caliber bullets were removed from the victim's brain and delivered to State Crime Laboratory personnel. This medical examination also showed that the victim had five or six wounds in the head area inflicted by some sharp instrument. The examination was inconclusive as to whether the blows on the head or the bullet wounds were the cause of death, but either could have caused the victim's death. 327 An investigation to determine the last persons to see the victim alive led them to the state's witness, Rena Mae Brown, the appellants Herlong and Gandy, as well as others. As a result of such interrogation, a homemade pistol was obtained from Herlong's house trailer but none of these three named persons was kept under arrest. Testimony was adduced at the trial that tests made to determine if the bullets removed from the victim were fired by the pistol found in Herlong's trailer were inconclusive. While Herlong, Gandy, and Brown had all denied any knowledge of the crime during their first interview, further investigation resulted in an additional interview with Brown on Wednesday. On Thursday, with her consent, she was administered a polygraph test. Immediately following such polygraph test, arrest warrants were signed charging Gandy and Herlong with murder. After Gandy and Herlong were arrested, Gandy, after having been advised of his constitutional rights, made a statement in which he admitted being present at the time the victim was slain and that he had "tapped" the victim on the head with an iron pipe. On Saturday after his arrest on Thursday, Herlong told the sheriff that he had heard there were car keys and an iron pipe placed in a well some two miles east of Ashburn and that they had been placed there by a named individual. On Monday Herlong told a Georgia Bureau of Investigation agent that the named individual had come to his trailer on the night of the murder and told him that he had killed a man with a length of iron pipe and a pistol and had thrown these items in a well behind such person's residence. With a large magnet, the GBI agent retrieved a 24-inch length of iron pipe and two keys, one of which fit the ignition key on the victim's automobile. While Herlong testified on the trial of the case that he never left his home on the night of the murder, and while his girl friend testified that she was there with him until the approximate time of the murder, yet the testimony of Gandy and Rena Mae Brown authorized the finding by the jury that Herlong and Gandy approached Davis and offered to buy liquor from him, that Davis 328 (accompanied by Rena Mae Brown) drove Herlong and Gandy to the area where the murder occurred, that when Davis got out of the automobile, walked to the back, opened the trunk to obtain the liquor to be sold to the defendants, he was shot by Herlong and beaten over the head by Gandy, which shooting and beating caused his death. The verdict of guilty was authorized by the evidence. 2. Under decisions exemplified by Sinkfield v. State, 231 Ga. 875 (2) (204 SE2d 588) (1974), it was not error to admit into evidence a handgun found at the home of the defendant Herlong where there was testimony that such gun was similar and looked like the gun used in the homicide. 3. The sole remaining enumeration of error to be considered complains that the trial court erred in admitting testimony that the witness Rena Mae Brown was given a lie detector test and that immediately thereafter arrest warrants were obtained. The appellant relies upon the decision in Stack v. State, 234 Ga. 19, 23 (214 SE2d 514) (1975) and makes the contention that such testimony imputes veracity to the testimony of Rena Mae Brown by raising an inference that such lie detector (polygraph) test showed her testimony implicating Herlong to be true. The decision in Stack did not require, as a matter of law, that a new trial be granted on every occasion where a jury is apprised that a lie detector test has been given. The admission of the evidence in this case that Rena Mae Brown had been given a lie detector test and that immediately thereafter arrest warrants were obtained for the defendants was not error. This testimony was admissible to explain the conduct of the officers. See Code § 38-302. In Stack v. State, supra, (p. 21), it was held: "It is the general rule in most jurisdictions that the results of a lie detector test are inadmissible when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether offered by the accused or the prosecution. This rule is based on the present scientific unreliability of such tests (29 AmJur2d 923, Evidence, § 831), and has been clearly adopted by the courts of this 329 state. Salisbury v. State, 221 Ga. 718 (146 SE2d 776); Wallace v. Moss, 121 Ga. App. 366 (174 SE2d 196); and Cagle v. State, 132 Ga. App. 227 (2) (207 SE2d 703)." The evidence that the witness had been given a lie detector test was admissible to explain the conduct of the officers. In this case, unlike the situation dealt with in Stack, supra, the jury was not faced with the problem of accepting the testimony of the defendant or the testimony of an accomplice who had turned state's evidence. No harmful error resulted from the admission of such evidence. No error of law appearing, the judgment of the trial court must be affirmed. Judgment affirmed. All the Justices concur, except Gunter, Jordan and Hill, JJ., who dissent. JORDAN, Justice, dissenting. In my opinion the trial court erred in admitting testimony that the witness Rena Mae Brown was given a lie detector test and that immediately thereafter arrest warrants were obtained. The contention is made that such testimony imputes veracity to the testimony of Rena Mae Brown by raising an inference that such lie detector (polygraph) test showed her testimony implicating Herlong to be true. In Stack v. State, 234 Ga. 19, 23 (214 SE2d 514) (1975), this court quoted the following language from the decision in Johnson v. State (Fla. App.), 166 S2d 798: "`On the basis of an analysis of the cases hereinbefore discussed we conclude that while neither the results of a lie detector examination nor testimony which indirectly or inferentially apprises a jury of the results of a lie detector examination is admissible into evidence, the mere fact that the jury is apprised that a lie detector test 330 was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. This determination should not, of course, encourage attempts to introduce evidence concerning lie detectors. As is clear from the cited cases, such evidence is liable to be prejudicial and should be admitted only when clearly relevant and unmistakably nonprejudicial." Under the decision in Stack v. State, supra, the trial court erred in permitting testimony that the lie detector test was given to the witness Rena Mae Brown and, immediately following, arrest warrants were issued for the defendants. As to the defendant Herlong, it cannot be said that such evidence was harmless. I am authorized to state that Justices Gunter and Hill concur in this dissent. HILL, Justice, dissenting. I join the dissent of Justice Jordan and wish to add only two additional comments. A recurring criticism by the public, lawyers and judges is that the law is too complicated. The majority decision in this case holds that evidence that the witness was given a lie detector test and that immediately thereafter an arrest warrant was obtained for this defendant, was admissible under Code § 38-302 to explain the officers' conduct. Although the jury was instructed to determine the credibility of the witnesses, they unfortunately were not instructed that lie detector tests are unreliable and that the evidence that the witness was given a lie detector test was to be considered by them not for the purpose of determining the credibility of the witness but solely for the purpose of explaining the conduct of the officer. Of equal or greater importance to me is that heretofore the Georgia law in this area has been uncomplicated, to wit: evidence regarding lie detector examination is inadmissible. See Stack v. State, 234 Ga. 19 (214 SE2d 514) (1975); Salisbury v. State, 221 Ga. 718(4) (146 SE2d 776) (1966); Wallace v. Moss, 121 Ga. App. 366(1) (174 SE2d 196) (1970); Cagle v. State, 132 Ga. App. 227(2) (207 SE2d 703) (1974). *331 Now the majority holds that evidence regarding lie detector examination of a witness was admissible in this case. We had simplicity before, complexity now. Certain exceptions to legal principles are necessary, of course. Therefore a certain amount of complexity is necessary. However, in my view there is no necessity here for this exception and thus no reason in my view for this complication. I fear that this exception will cause unnecessary legal problems in the future and I therefore join in dissenting in this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1373278/	223 S.E.2d 822 (1975) 289 N.C. 597 In the Matter of Judge E. E. CRUTCHFIELD. No. 97. Supreme Court of North Carolina. December 17, 1975. 823 E. A. Hightower, Wadesboro, C. Frank Griffin, Monroe, Henry L. Kitchin, Rockingham, for Judge E. E. Crutchfield, respondent. Millard R. Rich, Jr., Deputy Atty. Gen., for Judicial Standards Commission. ORDER OF CENSURE EXUM, Justice. This matter is before the Court upon the Recommendation of the Judicial Standards Commission (Commission) filed with us on August 13, 1975, that Judge E. E. Crutchfield, a judge of the General Court of Justice, District Court Division, Twentieth Judicial District (Respondent), be censured for "conduct prejudicial to the administration of justice that brings the judicial office into disrepute," as this phrase is used in Article IV, Section 17(2) of the North Carolina Constitution and N.C.Gen.Stat. 7A-376 (1974 Cum.Supp.). Having considered the record in the matter consisting of the verified complaint and answer filed with, the evidence heard by, and the findings of fact, conclusions, and Recommendation made by the Commission, and the briefs for Respondent and Commission filed with us (Respondent having elected not to argue the matter orally) we note the following procedure before and Findings of the Commission and we make the following Conclusions of Law and Order of Censure: PROCEDURE BEFORE AND FINDINGS OF THE COMMISSION 1. This proceeding was instituted before the Commission on December 12, 1974, by the filing of a verified complaint which alleged in substance that Respondent had engaged in wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute in that he had: (a) on May 6, 1974, signed a "Judgment Allowing Limited Driving Privilege" to one William B. Byrd despite the facts that Byrd when arrested and charged with driving a vehicle while under the influence of intoxicating liquor on April 6, 1974, refused to take the breathalyzer test and had not, as of May 6, 1974, even been tried for the offense; (b) on May 4, 1974, signed a "Judgment Allowing Limited Driving Privilege" to one Lybon H. Nance despite the facts that Nance when arrested and charged with driving a vehicle while under the influence of intoxicating liquor on April 20, 1974, refused to take the breathalyzer test and Respondent was not the judge who tried Nance for the offense; and (c) neither of the judgments was filed with the Clerk of Court nor forwarded to the North Carolina Department of Motor Vehicles. 2. Respondent filed a verified answer admitting these allegations. 3. Upon due notice, Respondent was accorded a full adversary hearing before the Commission on April 3, 1975, at which time he was represented by counsel. At the hearing Respondent stipulated that the Commission could consider as evidence: (a) the Court records pertaining to the driving under the influence of intoxicating liquor charges against Byrd and Nance; (b) statements obtained from Byrd, Nance and Mrs. Nance by an agent of the State Bureau of Investigation; (c) a letter Respondent had previously written to the Commission dated July 19, 1974; (d) Respondent's earlier oral statement given to an agent of the State Bureau of Investigation; (e) the complaint and answer; and (f) Respondent's own sworn testimony before the Commission. 824 During the hearing, Respondent also consented to the Commission's considering statements taken from attorneys Charles Brown and Fred Stokes, whose clients were the beneficiaries of the judgments in question, by an agent of the State Bureau of Investigation. 4. Upon considering this evidence the Commission found certain facts as follows: 7. That on April 6, 1974, William Brooks Byrd, Route 1, Box 56, Norwood, North Carolina, was arrested in Stanly County by North Carolina State Highway Patrolman C. B. Blackmon, and charged with driving under the influence of intoxicating liquor and the possession of tax paid liquor with the seal broken in the passenger area of an automobile. 8. That the said William B. Byrd, at the time of his arrest, refused to take a breathalyzer test. 9. That on or about May 6, 1974, Respondent signed a "Judgment Allowing Limited Driving Privilege" to said Byrd and in which Judgment it was recited that he had been convicted of driving a motor vehicle while under the influence of alcohol and which Judgment granted to him limited driving privileges as provided by G.S. 20-179. 10. That on the date said Judgment was signed, to wit: May 6, 1974, the said Byrd had not been tried on said charges of driving under the influence of intoxicating liquor and possession of tax paid whiskey and that said case was not tried until May 18, 1974. 11. That Respondent held no hearing with reference to the request of the said Bryd that he be allowed limited driving privileges, made no inquiry with reference to whether a trial of the said Byrd had been held and if so, by whom or as to whether or not the said Byrd had been convicted of driving under the influence of intoxicants. 12. That said Judgment and copies were signed by Respondent in the law offices of the attorney representing the said Byrd, at said attorney's request; that no copy of said Judgment was filed with the Clerk of the Superior Court of Stanly County nor was any copy sent to the Department of Motor Vehicles in Raleigh, as required by the provisions of G.S. 20-179. 13. That Respondent was aware at the time he signed said Judgment that only the Trial Judge was authorized by the provisions of G.S. 20-179 to allow limited driving privileges to the person convicted, and was likewise aware of the fact that the form of said Judgment set out in said statutes referred to a hearing and recited a conviction of such defendant in allowing said restricted driving privileges. That Respondent was likewise aware that the Department of Motor Vehicles was required to revoke the driving privilege of any person arrested for driving under the influence of intoxicants who refused to take a breathalyzer test and was aware that such a person was not entitled under the applicable statutes, to receive restricted driving privileges. 14. That on or about April 20, 1974, Lyvon Hampton Nance, 742 Best Street, Albemarle, North Carolina, was arrested in Stanly County by C. H. Sluder, a North Carolina State Highway Patrolman, and was charged with driving under the influence of intoxicants. 15. That said Nance refused to take a breathalyzer test. 16. That on or about May 6, 1974, the said Nance was found guilty of driving under the influence of intoxicants by District Court Judge A. A. Webb, who was the Trial Judge presiding over the trial of said case. 17. That on or about May 6, 1974, Respondent signed a "Judgment Allowing Limited Driving Privilege" in favor of the said Nance even though Respondent had not been the Trial Judge presiding over the trial of said Nance and even though Nance was not eligible to receive 825 a limited driving privilege because of his refusal to take a breathalyzer test. 18. That Respondent held no hearing with reference to the request of the said Nance that he be allowed limited driving privileges, made no inquiry with reference to whether a trial of the said Nance had been held, and if so, by whom. 19. That Respondent signed said Judgment and copies thereof in the law offices of Nance's attorney and that copy of said Judgment was not filed in the Office of the Clerk of Superior Court of Stanly County, nor was a copy sent to the North Carolina Department of Motor Vehicles in Raleigh. 20. That Respondent was aware at the time he signed said Judgment that only the Trial Judge was authorized by the provisions of G.S. 20-179 to allow limited driving privileges to the person convicted, and was likewise aware of the fact that the form of said Judgment set out in said statute referred to a hearing. That Respondent was likewise aware that the Department of Motor Vehicles was required to revoke the driving privilege of any person arrested for driving under the influence of intoxicants and who refused to take a breathalyzer test and was aware that such a person was not entitled under the applicable statutes to receive restricted driving privileges. 5. The Commission's findings are supported by the evidence. They are indeed not contradicted by any evidence. We, consequently, affirm these findings. 6. In order to meet squarely Respondent's arguments urging us to reject the Commission's Recommendation we observe that the uncontradicted (except where noted) evidence before the Commission tends to show the following facts: (a) Respondent signed each judgment in question at the request of a reputable, local attorney who had never in the past misled him (there is some evidence that Respondent signed the Byrd judgment at the request of Byrd himself but we will assume for purposes of this order, in accordance with Respondent's testimony before the Commission, the request for each judgment came from the defendant's attorney); (b) the attorney in each case prepared each judgment for Respondent's signature but otherwise made no express representations of any fact material to the judgment upon which Respondent relied; (c) Respondent did not personally benefit, financially or otherwise, by reason of his signing either judgment. CONCLUSIONS OF LAW AND ORDER OF CENSURE 1. This proceeding is neither criminal nor civil in nature. It is an inquiry into the conduct of a judicial officer, the purpose of which is not primarily to punish any individual but to maintain due and proper administration of justice in our State's courts, public confidence in its judicial system, and the honor and integrity of its judges. In Re Diener, 268 Md. 659, 304 A.2d 587 (1973) cert. denied Broccolino v. Maryland Commission on Judicial Disabilities, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885; In Re Kelly, 238 So. 2d 565 (Fla.1970) cert. denied 401 U.S. 962, 91 S. Ct. 970, 28 L. Ed. 2d 246; Memphis and Shelby County Bar Association v. Vick, 40 Tenn.App. 206, 290 S.W.2d 871 (1955) cert. denied 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328. 2. A judgment is an act of the court, not counsel. Respondent may not escape responsibility for any judgments signed by him by delegating their preparation to counsel or anyone else. "The trial judge cannot be too careful to make certain that his judgments and orders are accurate and complete, regardless of who takes the primary responsibility of preparing them." The National Conference of State Trial Judges, The State Trial Judge's Book 197 (2d ed. 1969). 3. That Respondent received no personal benefit, financial or otherwise, 826 from signing these judgments does not preclude this conduct from being prejudicial to the administration of justice and that which brings the judicial office into disrepute. Whether a judge receives any personal benefit from his conduct has been held to be "wholly irrelevant" to the inquiry. In Re Diener, supra, 268 Md. at 670, 304 A.2d at 594. 4. Whether the conduct of a judge may be characterized as prejudicial to the administration of justice which brings the judicial office into disrepute depends not so much upon the judge's motives but more on the conduct itself, the results thereof, and the impact such conduct might reasonably have upon knowledgeable observers. Geiler v. Commission on Judicial Qualifications, 10 Cal. 3d 270, 110 Cal. Rptr. 201, 515 P.2d 1 (1973) cert. denied 417 U.S. 932, 94 S. Ct. 2643, 41 L. Ed. 2d 235. 5. Respondent's conduct in signing these judgments in question without any semblance of an inquiry to determine either the factual or legal basis for them strikes at the very heart of the adjudicatory process. The gravamen of his offense is not so much that his judgments were contrary to law, beyond his jurisdiction to enter, or that some of the facts recited therein were indisputably false. The gravamen is that Respondent made no effort to ascertain whether his judgments were supported in law and in fact. "We have not the smallest doubt. . . that the disposition of cases for reasons other than an honest appraisal of the facts and the law, as disclosed by the evidence presented, will amount to conduct prejudicial to the proper administration of justice whenever and however it may be defined or whoever does the defining." In Re Diener, supra, 268 Md. at 671, 304 A.2d at 594. 6. The result of Respondent's conduct was a gross abuse by him of those provisions of our Motor Vehicle Statutes relating to driving privileges for persons charged and not tried and charged and convicted of driving while under the influence of intoxicants, particularly N.C.Gen.Stats. 20-16.2(c) and 20-179(b). 7. Respondent's judgments under these circumstances in the eyes of any knowledgeable observer were bound to prejudice the administration of justice and to bring the judicial office into disrepute. 8. The failure of Respondent to make due inquiry into the facts and law upon which these judgments were based and his execution of them upon a mere ex parte application of counsel for defendants also violates Canon 3(A)(4) of the North Carolina Code of Judicial Conduct, 283 N.C. 771, 772, which provides that "[a] judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." Codes of judicial conduct may "usefully be consulted to give meaning to the constitutional standards." Spruance v. Commission on Judicial Qualifications, 13 Cal. 3d 778, 796, 119 Cal. Rptr. 841, 853, 532 P.2d 1209, 1221 (1975); accord, Geiler v. Commission on Judicial Qualifications, supra. 9. We conclude, finally, that Respondent's execution of each "Judgment Allowing Limited Driving Privilege" upon a mere ex parte request without making any effort or conducting any inquiry to ascertain whether the facts recited in the judgments were true and whether he was lawfully entitled to enter the judgments and without giving the State an opportunity to be heard when in truth the judgments were supported neither in fact nor in law and were beyond Respondent's jurisdiction to enter constituted a gross abuse by Respondent of important provisions of our Motor Vehicle Statutes and amounted to "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" as this phrase is used in Article IV, Section 17(2) of the North Carolina Constitution and N.C.Gen.Stat. 7A-376 827 (1974 Cum.Supp.), and for this conduct Respondent ought to be censured in accordance with the Recommendation of the Judicial Standards Commission. Now, therefore, it is ORDERED that Judge E. E. Crutchfield, Respondent herein, be and he is hereby censured by this Court. Done by the Court in Conference, this 17 day of December, 1975. LAKE, Justice (dissenting): My dissent does not reflect any doubt on my part that certain acts of the respondent, purportedly in the performance of his judicial duties, as shown in the evidence in the record before us, were reprehensible, prejudicial to the administration of justice and of such nature as to bring the judicial office into disrepute and thus merit the censure of this Court and of all right minded citizens. The basis of my dissent is the much more fundamental principles of law, declared in the Due Process and Equal Protection Clauses of the Constitution of this State and of the United States. Since this is the first proceeding to reach this Court under GS Ch. 7A, Art. 30, by which the Judicial Standards Commission was created and without which it has no authority, and since such a proceeding is of significant interest to the public, the bench and the bar, I believe the constitutional deficiencies of the statute should be dealt with by this Court even though not specifically raised by the respondent. The attention of the General Assembly being so directed to these deficiencies, it can, it if deems proper, enact at its forthcoming session a new and valid statute to carry out the mandate laid upon it by Art. IV, § 17, of the Constitution of North Carolina, ratified at the general election of 1972. For the present I pass over the interesting question of whether the General Assembly may lawfully enact legislation creating and empowering such a Commission, at a time when the Constitution does not authorize it, by making the effectiveness of its enactment contingent upon the ratification of a then pending constitutional amendment. See, Session Laws of 1971, Ch. 590. Article I, § 19, of the Constitution of North Carolina declares: "No person shall be * * disseized of his * * * privileges * * * or in any manner deprived of his life, liberty or property, but by the law of the land. No person shall be denied the equal protection of the laws * * ." The Fourteenth Amendment to the Constitution of the United States declares: " * * nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is my view that the statute by which that Commission was created, and which is its sole source of power or authority, violates these basic principles. For that reason, this Court cannot, and does not, derive therefrom authority to enter the present order. It will be observed that this Court does not purport to enter this order as an exercise of its general supervisory power over proceedings of the other courts of this State, including that over which Judge Crutchfield was elected by the people of his district to preside. See: Constitution of North Carolina, Art. IV, § 12(1); Dantzic v. State, 279 N.C. 212, 219, 182 S.E.2d 563. Consequently, this dissenting opinion does not relate to an order of censure entered in the exercise of that power. Obviously, it does not relate to a judgment entered by the Senate, sitting as the Court for the Trial of Impeachments. See, Constitution of North Carolina, Art. IV, § 4. In the present proceeding, no court has heard any evidence or made any finding of fact. This Court has simply reviewed the record transmitted to it by an administrative agency, has concluded the evidence in the record supports findings made by that agency and has acted in accordance with its recommendation. The jurisdiction of this Court over the subject matter of this proceeding 828 is derivative and can rise no higher than its sourcethe proceeding before the Judicial Standards Commission. The jurisdiction of a court over the subject matter is always a proper inquiry for that court, whether raised by the litigants or not. The Act of 1971 creating the Judicial Standards Commission purports to establish a procedure, other than impeachment, whereby a judge may be censured or removed from his office. The Act provides, GS 7A-376, that a judge "removed for other than mental or physical incapacity receives no retirement compensation, and is disqualified from holding further judicial office." Thus, the Act purports to provide a means whereby a judge may be deprived of retirement benefits for which he has, while in office, made substantial payments to the State Retirement Fund, may be deprived of the office to which he has been elected by the people for a specified term of years, and may be denied the right, held by every other qualified voter of the State, to seek election to any judicial office so long as he lives. The Constitution of North Carolina, Art. XI, § 1, declares: "Punishments. The following punishments only shall be known to the laws of this State: death, imprisonment, fines, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State." (Emphasis added.) While the majority opinion in this matter is technically correct in saying this is not a criminal proceeding, since it is a proceeding not brought or tried in any court of justice, it is neither technically nor substantially correct to say its purpose is not to punish the respondent for alleged wrongdoing. Removal from office and disqualification thereafter to hold office are expressly declared by the Constitution to be punishments. If it were not so, common sense would require the conclusion that to remove a judge from office, deny him the retirement compensation for which he has paid, and disqualify him for life to hold judicial office again is a far more serious punishment than a fine of fifty dollars for speeding or even imprisonment for thirty days. In my view, a formal order of this Court, following a publicized recommendation of an official State agency, censuring a judge for misconduct in office, is a severe punishment. To say it is not, because the purpose of the Court is to maintain the public's confidence in its judicial system, is equivalent, in law and in fact, to saying execution for crime is not punishment therefor because the purpose is to improve the environment. In any event, nothing in this record indicates that the Judicial Standards Commission ever notified this respondent that the purpose of its proceeding was to censure him rather than remove him from office. A recommendation by it for removal was a distinct possibility until its actual recommendation was made at the end of the proceeding. Even a judge charged with misconduct in office is entitled to a fair trial before a fact finding body which has not already determined his probable guilt to its own satisfaction. Even an accused judge is entitled to the basic constitutional protections afforded by Due Process and Equal Protection Clauses to one suspected of rape, murder, burglary, robbery or embezzlement. As the Constitution of North Carolina, Art. I, § 35, states, "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." Two of these are expressed in the Due Process and the Equal Protection Clauses. The 1972 Amendment to the Constitution, Art. IV, § 17, authorizing the General Assembly to enact legislation providing for removal and censure of judges, obviously contemplated that it would do so within the limitations of those clauses. GS 7A-376 provides: "Upon recommendation of the Commission, the Supreme Court may censure or remove any justice or judge for wilful misconduct in office, wilful and persistent failure to perform his duties, habitual 829 intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." Under this statute, this Court may act only upon a recommendation of the Judicial Standards Commission, an administrative agency. This statute, and the remaining sections comprising the Judicial Standards Commission Act, GS Ch. 7A, Art. 30, establish no standard or guide-line whatsoever by which to determine whether the Commission shall recommend, or this Court shall impose, the punishment of censure or the infinitely more severe punishment of removal, loss of retirement benefits and disqualification to hold further judicial office. The Commission, in its unbridled discretion, for unstated reasons, political, personal or otherwise in nature, can choose between the two on a case by case basis, recommending the extreme penalty of removal of one judge and the much milder censure of another judge though their conduct be identical, or though the judge to be censured be found to have accepted bribes and the judge to be removed be found to have done nothing worse than sign without authority (as Judge Crutchfield is said to have done) orders granting permission to operate a motor vehicle. Such statutory invitation to gross favoritism by an administrative agency in the choice of punishment to be imposed for wrongdoing is not consistent with the Equal Protection Clause. Compare, Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346. To hold such a statute invalid it is not required that actual abuse of such unlimited discretion be shown. GS 7A-377 is the only statutory provision relating to the procedure before the Judicial Standards Commission. It provides: "(a) Any citizen of the State may file a written complaint with the Commission concerning the qualifications or conduct of any justice or judge of the General Court of Justice, and thereupon the Commission shall make such investigation as it deems necessary. The Commission may also make an investigation on its own motion. The Commission is authorized to issue process to compel the attendance of witnesses and the production of evidence, to administer oaths, to punish for contempt, and to prescribe its own rules of procedure. No justice or judge shall be recommended for censure or removal unless he has been given a hearing affording due process of law. All papers filed with and proceedings before the Commission are confidential, unless the judge involved shall otherwise request. The recommendation of the Commission to the Supreme Court, and the record filed in support of the recommendations are not confidential. Testimony and other evidence presented to the Commission is privileged in any action for defamation. No other publication of such testimony or evidence is privileged, except that the record filed with the Supreme Court continues to be privileged. At least five members of the Commission must concur in any recommendation to censure or remove any justice or judge. A respondent who is recommended for censure or removal is entitled to a copy of the proposed record to be filed with the Supreme Court, and if he has objections to it, to have the record settled by the Commission. He is also entitled to present a brief and to argue his case, in person and through counsel, to the Supreme Court. A majority of the members of the Supreme Court voting must concur in any order of censure or removal. The Supreme Court may approve the recommendation, remand for further proceedings, or reject the recommendation. A justice of the Supreme Court or a member of the Commission who is a judge is disqualified from acting in any case in which he is a respondent. "(b) The Commission is authorized to employ an executive secretary to assist it in carrying out its duties. For specific cases, the Commission may also employ special counsel or call upon the Attorney General to furnish counsel. For specific 830 cases, the Commission may also employ an investigator or call upon the Director of the State Bureau of Investigation to furnish an investigator. While performing duties for the Commission such executive secretary, special counsel, or investigator shall have authority throughout the State to serve subpoenas or other process issued by the Commission in the same manner and with the same effect as an officer authorized to serve process of the General Court of Justice." Obviously, this statute makes the Judicial Standards Commission the investigator, the accuser, the prosecutor, the jury to find the facts, and the determiner of the sentence to be recommended. If this be due process of law, it would be difficult to find a procedural violation of that basic constitutional right. Even one accused of the most vicious crime is not placed on trial before a petit jury drawn from the police department which investigated the report of the crime, the grand jury which indicted him and the staff of the prosecuting attorney. Nothing in the statute provides for putting in evidence the initial complaint filed with the Commission, or even disclosing to the accused judge the name of his accuser or the complaint filed. On the contrary, the statute provides the complaint shall be confidential, unless the accused judge, prior to seeing it, requests otherwise; that is, requests that it be made public. Likewise, nothing in the statute requires or contemplates putting in evidence, at the hearing before the Commission, the reports it receives from its investigators, or the calling of such investigators for cross-examination. Yet, the Commission has received these reports, which, necessarily, are largely hearsay and conclusions of the investigator based upon unspecified data, and, on the basis of these, has made its initial determination of the probable guilt of the respondent before he is even notified that a hearing will be conducted. Again, the statute does not provide for, or appear to contemplate, a public hearing. Such a Star Chamber proceeding is not consistent with due process of law. Again, the statute delegates to this administrative body unlimited authority "to prescribe its own rules of procedure." The General Assembly has prescribed at length and in detail the procedure by which the several courts of justice in this State are to hear the parties and determine the facts in both civil and criminal actions, but this administrative body is set free to sail on an uncharted sea, to write its own rules of procedure, and to amend them at will. This is "delegation run riot" and violates both Art. II, § 1, and Art. I, § 6, of the Constitution of North Carolina. It is no answer to say the statute provides the respondent judge must be "given a hearing affording due process of law" when the statute, itself, gives the Commission unbridled discretion to prescribe and amend its rules of procedure and confers upon it the combined roles of investigator, accuser, prosecutor and finder of fact. The statute authorizes the Commission to recommend, and this Court, upon such recommendation, to impose the extreme penalty of removal from office, forfeiture of retirement benefits and disqualification, for life, to hold any judicial office, if, by such a proceeding, the Commission finds the judge has been guilty of "conduct prejudicial to the administration of justice that brings the judicial office into disrepute." This does not mean wilful misconduct, for that word "wilful," specifically used to modify "misconduct in office," is omitted in this specification. It does not mean misconduct in office, or criminal conduct in or out of office, or habitual intemperance on or off the bench, or neglect of official duties, for all of these things are specified by the statute as distinct grounds for censure or removal. What conduct, not falling within any of these other specified categories of behavior, constitutes "conduct prejudicial to the administration of justice that brings the judicial office into disrepute?" The statute does not say. No judge can possibly determine, in advance of Commission action 831 against him, what conduct by him, in or out of his courtroom, will be asserted by the Commission as ground for his censure or removal. Could it be supposed for a moment that, consistent with the Due Process Clause, a fine of fifty dollars or a sentence to imprisonment for twenty-four hours could be imposed for "conduct prejudicial to the administration of justice that brings the judicial office in disrepute?" Yet, this statute provides that this Commission can recommend and this Court thereupon can impose, ex post facto, removal from office upon this charge, and that is precisely the charge on which Judge Crutchfield is now censured. If ever there was a "vague and over broad" statutory statement of a ground for the imposition of punishment, it is this one"conduct prejudicial to the administration of justice that brings the judicial office into disrepute." The Due Process Clause simply will not permit censure or removal of a judge upon such a charge. See: In Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879; Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764; State v. Hales, 256 N.C. 27, 32, 122 S.E.2d 768; 16 Am.Jur.2d, Constitutional Law, § 552; 16A C.J.S. Constitutional Law § 580.	01-03-2023	10-30-2013

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